Click v. State
| Decision Date | 15 November 1950 |
| Docket Number | No. 28652,28652 |
| Citation | 94 N.E.2d 919,228 Ind. 644 |
| Court | Indiana Supreme Court |
| Parties | CLICK v. STATE. |
Robert A. Buhler, Charles Z. Bond, and Dan C. Flanagan, Ft. Wayne, for appellant.
J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., George W. Hand, Jr., Deputy Atty. Gen., for appellee.
In the trial court appellant was charged with murder in the first degree, in each of three counts of an indictment. After his motion to quash the indictment was overruled, he entered a plea of not guilty. His trial by jury resulted in a verdict of guilty as charged in the indictment and his punishment was fixed at death by electrocution. A motion for new trial was overruled. From a judgment on the verdict the appeal is taken.
Error is assigned in overruling the motion for new trial. Appellant presents only causes 1-C and 4 of this motion as causes for reversal. We shall limit our consideration to these two alleged errors.
Cause 1-C is objections to questions put to a proposed juror, named Tippmann, in the presence of the other jurors on his voir dire examination by the prosecuting attorney. The first question is as follows: Q.
Appellant's objection was as follows: 'To the question propounded the defense objects for the reason that it assumes to instruct the jury that they would have a right to consider such evidence as evidence of the guilt of the defendant, whereas such evidence could not be admissible for any purpose except for impeachment of any testimony given by the defendant himself.'
This objection was overruled.
The state then propounded to the proposed juror the following question:
Thereupon the following action was taken by appellant: 'We now challenge the juror who has answered the question
The challenge was overruled.
Thereupon the appellant moved as follows: 'The question having been repeated in the presence of and to each and all of the jurors, we now move that all of the jurors now in the box be discharged because of improper conduct of counsel and improper presentation to them of evidence which could not properly be considered by them.' The motion was overruled. The juror remained and served as a juror in the cause.
It will be noted that the questions propounded by the state to the proposed juror did not assume to instruct the jury that it would have a right to consider the evidence mentioned as evidence of defendant's guilt. On the contrary it asked merely that if such evidence was produced at the trial whether the juror would consider it with the other evidence in the case in arriving at their verdict. There is no showing that such evidence was submitted in the trial, and there is no presumption that the jury would consider the question put to the prospective jury as evidence in the case. The juror's answer is to the contrary.
From the two questions asked the proposed juror by the state as shown herein, we note that the entire examination of the proposed juror is not in the record. It has been held frequently that this court will not pass upon the competency of a juror unless the entire examination of the juror on his voir dire is set out in the record. Johnson v. Holliday, 1881, 79 Ind. 151, 154, 155 and cases there cited. Douthitt v. State, 1896, 144 Ind. 397, 401, 42 N.E. 907. The Indianapolis, Peru and Chicago Railway Company v. Pitzer, 1887, 109 Ind. 179, 189, 191, 6 N.E. 310, 10 N.E. 70. See also Annadall v. Union, etc. Lime Co., 1908, 42 Ind.App. 264, 266, 84 N.E. 359. Heacock v. Arnold, 1929, 90 Ind.App. 476, 477, 169 N.E. 89. Without the entire voir dire examination of the juror before us we find no error in the action of the court in overruling the objections to the questions propounded to the proposed juror; for the same reason we find no error in the action of the court overruling a challenge of the juror for cause.
Our statute, Section 9-1504, Burns' 1942 Replacement enumerates fifteen different reasons for challenging a proposed juror for cause, and our courts have been liberal in allowing many additional reasons all in an effort to assure a defendant a fair and impartial trial by an unbiased, unprejudiced and disinterested jury of his peers. In an attempt to accomplish this desired end great discretion is necessarily vested in the trial judge. Since, on appeal, all presumptions are in favor of the rulings and decisions of the trial court, it is required that the party wishing to question any of those rulings or decisions must save and present them in the record fully in order to overcome the presumptions in their favor. Mercer v. Corbin, 1881, 117 Ind. 450, 455, 20 N.E. 132, 3 L.R.A. 221. 10 Am.St.Rep. 76. Johnson v. Holliday, 1881, 79 Ind. 151, 155, supra. We find no error of the court in overruling appellant's motion to discharge 'all the jurors now in the box' because of the alleged improper conduct of counsel and 'improper presentation of evidence that could not properly be considered by them.'
4. Cause 4 for new trial is made under Clause Eight of Section 9-1903, Burns' 1942 Replacement. It is based wholly upon a letter written by one Ralph W. Lobaugh to Robert A. Buhler, one of appellant's attorneys under date of December 4, 1949, in which he says that he, Lobaugh, alone killed Phyllis Conine, and two other women whom he named.
Appellant, on the advice of his attorney, Mr. Buhler, had theretofore made written confession that he alone had killed Phyllis Conine and the other two women. His written confession so made, that he alone had killed Phyllis Conine, was put in evidence without objection, in his trial in the court below. The action of the trial court in admitting this confession in evidence is not questioned on this appeal.
In the trial below appellant put in evidence without objection his own exhibits A and B. Both exhibits are written on stationery of the Ft. Wayne police department, and are as follows:
'Defendant's Exhibit A.
'Department of Police
'Fort Wayne, Indiana
'Fort Wayne, Indiana
August 21, 1949
Fort Wayne Indiana
'Marie Click
'My dear Wife: I want you to be the first to know and learn from my own lips that I am a murderer . . . I am the one and the only one guilty and the only one that murdered Wilhelma (Billie) Haage February 2, 1944; Anna Kuzeff May 22, 1944, and Phyllis Conine August 4, 1944 . . . no other person was with me or participated in either of these murders . . . this I know is a terrible confession and I want you to hand this confession to Chief of Police Lester Eisenhut . . . I understand that by doing so you will be...
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...dire examination of such juror is contained in the special bill of exceptions. Johnson v. Holliday, 1881, 79 Ind. 151; Click v. State, 1950, 228 Ind. 644, 94 N.E.2d 919; Indianapolis, Peru, & Chicago Railway Co. v. Pitzer, 1886, 109 Ind. 179, 6 N.E. 310, 10 N.E. 70; Heacock v. Arnold, 1929,......
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