Cooper v. The State
| Citation | 22 N.E. 320,120 Ind. 377 |
| Decision Date | 18 October 1889 |
| Docket Number | 14,586 |
| Parties | Cooper v. The State |
| Court | Supreme Court of Indiana |
From the Jefferson Circuit Court.
The judgment is affirmed, with costs.
F. M Griffith, J. W. Linck and J. A. Works, for appellant.
L. T Michener, Attorney General, M. R. Sulzer, Prosecuting Attorney, and J. H. Gillett, for the State.
An indictment was returned into 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 bystanders 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. Cr. Pl. and Pr. (9th ed.), section 350; State v. Mellor, 13 R.I. 666.
Section 1656, R. S. 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 can not 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. United States v. Gale, 109 U.S. 65, 27 L.Ed. 857, 3 S.Ct. 1; Cooper v. State, 64 Md. 40, 20 A. 986.
1 Bishop Cr. Proc., section 730.
Whart. Cr. Pl. and Pr., section 426.
The plea was, as we have seen, 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 subjects 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 that they seem unnecessarily long and numerous, they are not justly subject to animadversion.
It may not be amiss to remark that, as a rule, whenever instructions extend beyond a clear and concise statement of the law applicable to the facts as admitted or claimed to be proven in the particular case, they become hindrances rather than aids to a jury of non-professional men, unacquainted with the abstract principles and technical language...
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