Dale v. State, 24622.

• Citation: 200 Ind. 408,164 N.E. 260
• Decision Date: 13 December 1928
• Docket Number: No. 24622.,24622.
• Parties: DALE v. STATE.
• Court: Supreme Court of Indiana

200 Ind. 408

164 N.E. 260

DALE

v.STATE.

No. 24622.

Supreme Court of Indiana.

Dec. 13, 1928.

Appeal from Delaware Circuit Court; Victor Simmons, Judge.

George R. Dale was convicted of criminal libel, and he appeals. Reversed and remanded, with instructions.

See, also, 198 Ind. 110, 150 N. E. 781, 49 A. L. R. 647;165 N. E. 923.

W. A. Thompson, of Muncie, for appellant.

U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.

TRAVIS, J.

Judgment was rendered against appellant on a verdict of guilty after trial upon a charge of criminal libel. Section 2437, Burns' 1926; Acts 1905, § 369, c. 169.

Appellant predicates error on appeal upon the action of the court in sustaining appellee's demurrer to his plea in abatement, and other errors.

This is the same grand jury upon which an attack was made by appellant Randolph. Randolph v. State (Ind. Sup.) 162 N. E. 656.

All of the objections presented by the plea in abatement in the Randolph Case are presented by appellant in the case at bar. The objections rely upon the irregularity of the court in appointing jury commissioners and their acts in selecting the grand jury. Upon the authority of the decision in the Randolph Case, these irregularities were not sufficient to abate the action.

[1] In the case at bar appellant, by his plea in abatement, pursued the matter further, and alleged that at the time of drawing such grand jury, the clerk of the court did not enter a list of the names of the persons who were to compose the grand jury, so drawn, upon the order book of the court, and annex his certificate of that fact, as provided by law. Section 1668, Burns' 1914; section 1822, Burns' 1926. The statutes of this state formerly provided that the clerk should make a record of the panel of the petit jurors as well as of the panel of those who were to compose the grand jury. Under this former act the array of the petit jury was challenged for the misconduct, neglect, or default of the clerk in not having recorded the panel as required by the statute. This court held that such a challenge was well taken, and reversed the case for the error of the trial court in overruling the challenge. Rev. Stat. 1838, c. 57, § 1, p. 359; Mitchell v. Likens (1833) 3 Blackf. 258;Gardner v. Turner (1812) 9 Johns. (N. Y.) 260. See, also, Jones v. State (1832) 3 Blackf. 37;Vattier v. State (1835) 4 Blackf. 73.

If such an irregularity on the part of the clerk in making the record in the order book of the selection of the petit jury in a civil case is sufficient to abate the trial of the action before such jury, the irregularity would apply with no less force in the selection of a grand jury which inquires into the acts of citizens with the end in view to present the commission of a crime. It is provided by statute explicitly the manner of and the steps necessary in the selection of those who are to be impaneled as the grand jury. Every step necessary to be taken in the administration of the criminal law leading to the presentment of the commission of a crime through the instrumentality of a grand jury is so plain that there is no excuse for not following it implicitly. The action of the court sustaining appel...