Clayton v. State

• Decision Date: 31 January 1885
• Docket Number: 11,984
• Citation: 100 Ind. 201
• Parties: Clayton v. The State
• Court: Indiana Supreme Court

100 Ind. 201

Clayton v. The State

No. 11,984

Supreme Court of Indiana

January 31, 1885

fro the Kosciusko Circuit Court.

The judgment is affirmed, with costs.

J. S Frazer, W. D. Frazer and S. J. North, for appellant.

F. T Hord, Attorney General, J. S. Widaman and W. B. Hord, for the State.

OPINION

Howk J.

This was a prosecution upon affidavit against the appellant, for an alleged attempt to provoke one Harlan E. King to commit an assault and battery upon him, the appellant. The prosecution was commenced before a justice of the peace of Kosciusko county, and from the justice's judgment against him the defendant appealed to the court below. There the issues joined were tried by a jury, and a verdict was returned finding the appellant guilty, as charged in the affidavit, and assessing his punishment at a fine in the sum of one cent. Over appellant's motions to set aside the verdict and for a new trial of the cause, the court rendered judgment against him for the fine assessed and costs.

The first error of which complaint is made by appellant in this court is the overruling of his motion to set aside the verdict, because the jury had separated for a period of seven hours without permission of the court, and without his knowledge or consent, before agreeing upon and sealing up their verdict. It is shown by the record that when the jury retired to deliberate upon their verdict, by the agreement of the parties, they were instructed that when they agreed upon a verdict they might seal up the same and separate, and return it into court the next morning. On the convening of court the next morning, the foreman of the jury handed to the court a paper writing, purporting to be their verdict, complete in every respect except that it was not signed by their foreman. Thereupon the court directed the jury to retire to their room for further deliberation, to which action the appellant then and there objected, for the reason that the jury had then been separated for a period of seven hours, and had been mingling with the public during that time, which objection was overruled by the court, and the appellant then and there excepted. The jury retired, and in a short time returned into court the same paper writing, and in the same words as before, with the addition of the name of their foreman.

The alleged misconduct of the jury in having "separated without leave of the court, after retiring to deliberate upon their verdict," of which the appellant complains as error, is the second statutory cause for a new trial in criminal cases. Section 1842, R. S. 1881. It was not properly assignable here as an independent error; but as it was assigned as cause for a new trial, in appellant's motion therefor, and as error is assigned here upon the overruling of the motion for a new trial, the matter complained of is thereby properly presented for our decision. The criminal code provides, in section 1842, supra, that "The court shall grant a new trial to the defendant for the following causes, or any of them: * * * * Second. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict." This section of the criminal code has specific application, of course, to what the trial court shall do in the cases enumerated therein. When the action of that court, in any of the cases specified, is brought before this court upon appeal, section 1891, R. S. 1881, of the criminal code, prescribes our action, as follows: "In the consideration of the questions which are presented upon an appeal, the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action of the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant."

Now, if it be conceded that under the instructions of the court the jury had no leave of the court to separate, after they had agreed upon their verdict and reduced it to writing, until it had been signed by their foreman, still, upon the facts shown by the record and heretofore stated, and conceding, without deciding, that the action of the trial court thereon was erroneous, we would be bound to disregard such error; for we are clearly of the opinion that the error, if such it may be called, was purely technical and did not prejudice the substantial rights of the appellant. Moore Crim. L., sections 310, 417 and 419; Jarrell v. State, 58 Ind. 293.

The next error assigned upon the record is that the court erred in permitting the prosecuting attorney, when stating the case to the jury, to say that the defendant had been convicted before a justice of the peace, and had appealed therefrom. There is no substance in this assignment of error. In the statement of the case to the jury, the State's attorney had the right to tell them how and where the case originated and how it had found its way into the circuit court. But, even if the action of the court were...