Courtney v. State
| Decision Date | 16 November 1892 |
| Docket Number | 193 |
| Citation | 32 N.E. 335,5 Ind.App. 356 |
| Parties | COURTNEY v. THE STATE |
| Court | Indiana Appellate Court |
From the Montgomery Circuit Court.
Judgment affirmed.
J Wright, J. M. Seller and J. R. Courtney, for appellant.
A. G Smith, Attorney General, for the State.
The appellant was indicted under section 2085, R. S. 1881 relating to the offence of being a common gambler, the charge against the appellant being that he, on the 1st of October, 1889, and on divers other days between said day and the making of the presentment (October 26th, 1889), at, etc., did then and there unlawfully, for the purpose of gaming with cards, frequent a place where gambling was then permitted, to wit, the building and room of Albert Muhllisen, then and there situated, contrary, etc.
The appellant pleaded in abatement in four paragraphs, each sworn to by him separately, to which the appellee demurred. The demurrer was overruled as to the first paragraph, and was sustained as to the other paragraphs.
The first paragraph, which the court held to be sufficient, and the issue formed by a denial of which was tried, alleged in substance that the indictment was not returned in the Montgomery Circuit Court or presented in open court, or presented or returned in any court of this State authorized by law to receive such returns and presentments.
The second and fourth paragraphs set forth circumstances under which it was alleged the indictment was received from the grand jury, the purpose of each paragraph being to show that the indictment was not duly returned into open court.
The first paragraph being held and treated as sufficient, the facts alleged in the second and fourth paragraphs, if they constituted matter in abatement, would be admissible in evidence under the first paragraph, and would have the same result, the issue upon this plea being tried before the trial under the plea of not guilty. It is manifest that the appellant suffered no injury because of the action of the court in sustaining the demurrer to the second and fourth paragraphs.
In the third paragraph it was shown that one William M. White was permitted to be and remain before the grand jury in their room during the time that the evidence was being introduced before the grand jury "and during their proceedings herein; that said William M. White has never been admitted to the practice of the law in any court of this State, is not a member of the bar of this court or any other court of this State, is not a lawyer and does not pretend to be; that these facts were known to said court and prosecuting attorney at the time of the empaneling of the grand jury for the September term, 1889, of this court; that the prosecuting attorney was in reasonably good health, was able to attend and did attend the entire sessions and meetings of said grand jury while the evidence in reference to this indictment was being introduced before said grand jury; that the sole, whole and only purpose of allowing said White before said grand jury was as a short-hand reporter to take down the evidence as the same was being presented, and that is what he did; that Albert B. Anderson, prosecuting attorney of said county, was able and competent to counsel and advise said grand jury during all their sitting as such, and the presence of said White before said grand jury was not wanted or necessary as deputy prosecuting attorney or as a witness before said grand jury, but as a stenographer said White was permitted to so remain before said grand jury" for the purpose, and in order that "after the grand jury had adjourned and had been discharged, he might and would write out the evidence and proceedings of the grand jury in long-hand report thereof to be used on the trial of indictments found, to refresh the memory of witnesses who testified before the grand jury, when they should testify on the trial of the indictments found, and to impeach the State's own witnesses on the trial by said White as a witness of their testimony before the grand jury; so that said White was allowed to be and remain before the grand jury to be a witness subsequently against the persons prosecuted and the witnesses who testified before the grand jury, and not as a deputy prosecuting attorney or as a witness to any facts before said grand jury."
This paragraph is condemned by counsel for the appellee upon the ground that it is not averred that White was not the regularly deputized prosecuting attorney.
We need not decide the question thus suggested. It is alleged in the plea that the only purpose for which White was present was to act in the capacity of stenographer, and that all he did was to act in that capacity. It does not appear that he said anything in the presence of the grand jury, or that he did anything to influence their conduct. It is not shown that any use was made of his report or of his knowledge whereby the appellant's rights could have been affected.
While the use of a stenographer by the prosecuting attorney under such circumstances is not provided for by statute, and while there is an express statutory provision (section 1655, R. S. 1881), that "The grand jury must select one of their number as clerk, who must take minutes of their proceedings (except the votes of the individual members on a presentment or indictment), and also of the evidence given before them; which shall be preserved for the use of the prosecuting attorney, to subserve the purposes of justice," yet we can not conclude that such a departure from the mode indicated by the statute should result in the abatement of a particular indictment, without some showing that the accused was injuriously affected, or that something unauthorized was said or done which probably injured him. The presence of a stenographer before a grand jury is not necessarily inconsistent with a due administration of justice in criminal cases. United States v. Simmons, 46 F. 65.
In the consideration of questions presented upon an appeal in a criminal action, this court can not regard technical errors or defects, or exceptions to any decision or action of the court below, which did not, in the opinion of this court, prejudice the substantial rights of the defendant. Section 1891, R. S. 1881.
Upon the trial of the issue formed upon the plea in abatement, it appeared in evidence that an affidavit for a change of judge having been filed in a certain civil action pending in the court below, the change was granted, and the Hon. Joseph M. Rabb, judge of another judicial circuit, was called to try said civil cause. On Saturday the 26th of October, 1889, being the last day of the regular September term of the court below, while Judge Rabb was occupying the bench in the main court-room in the court-house, at the county seat of Montgomery county, actively engaged in the trial of said civil cause, the Hon. Edward C. Snyder, judge of the twenty-second judicial circuit, and ex officio judge of the court below, was informed that the grand jury was ready to report. Thereupon, taking with him the deputy clerk from the place usually occupied by him in the main court-room, where said trial was in progress, Judge Snyder went to another room in the same court-house, a room occasionally used for holding court, and there found the grand jury. He then took a seat behind a table and facing the grand jurors, and, in the customary form, received from the foreman a large number of indictments, among them the indictment against the appellant above mentioned. Besides the judge and the members of the grand jury, there were present the deputy clerk, deputy sheriff, the prosecuting attorney, and two or three other persons. There is sufficient evidence that the door of this room was not fastened, but was open, though there is some evidence of a contrary tendency. During the time (about five minutes) while Judge Snyder was thus receiving the indictments in the grand jury room, the main court-room was occupied by Judge Rabb in the proceedings in said civil action.
The statute (sections 1670, 1672, R. S. 1881) contemplates the return of an indictment by the grand jury into court; and the Constitution (article 1, section 12) requires that all courts shall be open. Stefani v. State, 124 Ind. 3, 24 N.E. 254; Ford v. State, 112 Ind. 373, 14 N.E. 241; Waterman v. State, 116 Ind. 51, 18 N.E. 63.
It can not be questioned that the indictment was returned into the Montgomery Circuit Court in open session, with due formality and regularity, unless it can be said that the fact that the trial in the civil action was in progress before Judge Rabb requires a contrary conclusion.
It is provided by the constitution of Indiana that the judicial power of the State shall be vested in a Supreme Court, in circuit courts and in such other courts as the General Assembly may establish (article 7, section 1); that the circuit courts shall each consist of one judge (article 7, section 8); that the State shall, from time to time, be divided into judicial circuits; and that a judge for each circuit shall be elected by the voters thereof (article 7, section 9). It is further provided that the general assembly may provide by law that the judge of one circuit may hold the courts of another circuit in cases of necessity or convenience; and in case of temporary inability of any judge, from sickness or other cause, to hold the courts in his circuit, provision may be made by law for holding such courts (article 7, section 10).
It is provided by statute (section 412, R. S. 1881) that the court in term or the judge thereof in vacation, upon the application of either party, made upon affidavit showing specified causes, shall change the venue of any civil action from the judge; and (section 415) that when a...
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