Cooper v. State

• Decision Date: 18 October 1889
• Citation: 22 N.E. 320,120 Ind. 377
• Parties: Cooper v. State.
• Court: Indiana Supreme Court

120 Ind. 377

22 N.E. 320

Cooper

v.State.

Supreme Court of Indiana.

Oct. 18, 1889.

Appeal from circuit court, Jefferson county; W. T. Friedley, Judge.F. M. Griffith, John M. Linck, and James A. Works, for appellant. Louis T. Michener, Atty. Gen., and J. H. Gillett, for the State.

Mitchell, J.

An indictment was returned in the Switzerland circuit court, charging the appellant, Cooper, with the crime of murder. After arraignment and plea of “not guilty” the defendant applied for and procured the venue of the cause to be changed to Jefferson county. After appearing in the circuit court of the latter county, he withdrew his plea of “not guilty,” and pleaded in abatement, assigning as reasons for abating the indictment: (1) That the grand jury was not drawn within a period not more than one week preceding the commencement of the term at which the indictment was found and returned. (2) That two of the persons drawn as grand jurors were drawn by the names of C. H. Bascom and J. C. Ricketts, respectively, their Christian names being otherwise omitted. (3) That only three of the persons drawn and summoned as grand jurors appeared in court; that the places of the three who failed to appear were filled by the sheriff from the bystanders; and that the record does not show that the persons thus called were examined touching their qualifications. (4.) That the court appointed one of the persons thus called from the by-standers as foreman of the grand jury. The court sustained a demurrer to the plea. In this there was no error. The intervention of mere irregularities in drawing and organizing the grand jury, which involve no charge of fraud or corruption, and which in no way prejudice the substantial rights of the defendant, assuming, in the absence of anything appearing to the contrary, that the body as constituted was composed of persons duly examined and qualified, and not subject to any of the statutory causes of challenge, is not available as a plea to abate the indictment. Whart. Crim. Pl. (9th Ed.) § 350; State v. Mellor, 13 R. I. 666. Section 1656, Rev. St. 1881, specifies certain causes for which a grand jury may be challenged, and confines the right of challenge to the causes specified. It may be that in case a person accused of crime has no opportunity to make the challenge, the facts upon which a challenge might have been predicated could be pleaded in abatement at the proper time; but the grounds available as a basis for challenge cannot be extended by plea in abatement. Besides, the right to file a plea in abatement was waived by pleading to the indictment, and applying for and obtaining a change of venue, which was equivalent to a general continuance.

An objection to the qualification of grand jurors, or to the mode of drawing or constituting the body, must be made before pleading to the indictment. If not made until after plea the objection is waived. U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. Rep. 1;Cooper v. State, 64 Md. 40. “Though the demand upon the prisoner at the arraignment is to say whether he is guilty or not guilty, he may, instead of answering this question, * * * plead in abatement. * * * And he must plead in abatement or demur now or not at all, for his right to do either is waived by the plea of ‘guilty’ or ‘not guilty.”’ 1 Bish. Crim. Proc. § 730. “Without leave of court, which is granted only in very strong cases, the plea of ‘not guilty’ cannot be withdrawn to let in a plea in abatement, for, on principle, a plea of ‘not guilty’ admits all that a plea in abatement contests, and after a plea of ‘not guilty’ a plea in abatement is too late. A plea in abatement also cannot, it has been held, be filed after a general continuance.” Whart. Crim. Pl. § 426. The plea was, as we have said, intrinsically insufficient; and, not having been filed until after the defendant pleaded “not guilty,” which plea does not appear to have been withdrawn by special leave of court, there was ample justification on either ground for the ruling of the court in sustaining the demurrer.

It is objected that the court erred in defining the crime of manslaughter, in that it omitted the word “voluntary.” In all other respects the definition follows the statute literally. It is not perceived how the defendant could have been prejudiced by the omission of this word. Besides, the omitted word was, in effect, supplied in an instruction subsequently given. The rule is firmly established that if, upon considering all the instructions together, it fairly appears that the law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate.

Other instructions given by the court are made the subject of criticism. What has been said above is applicable to all those to which objection is made. Without setting out the instructions, or indulging in extended comment upon them, it is enough to say that certain expressions may be found in each of those pointed out as objectionable, relating to abstract principles of law, which, when considered apart from the instructions as a whole, may not be strictly and technically accurate, but, with the exception...