Doolittle v. State

• Decision Date: 20 February 1884
• Docket Number: 11,422
• Citation: 93 Ind. 272
• Parties: Doolittle v. The State
• Court: Indiana Supreme Court

93 Ind. 272

Doolittle v. The State

No. 11,422

Supreme Court of Indiana

February 20, 1884

From the Fayette Circuit Court.

Judgment affirmed.

W. C Forrey, L. L. Broaddus and R. Conner, for appellant.

F. T Hord, Attorney General, M. D. Tackett, Prosecuting Attorney L. W. Florea and G. C. Florea, for the State.

OPINION

Hammond, J.

An indictment was returned against the appellant in the court below charging him with an assault and battery upon Louisa Doolittle, with intent to commit murder in the first degree. There was an arraignment, plea of not guilty, trial by jury, and verdict found as follows:

"April 12th, 1883.

"We, the jury, find the defendant guilty of an assault and battery with intent to commit murder in the second degree; that he be imprisoned in the State prison for fourteen years, and that he be fined $ 1. Robert Holland, Foreman."

The appellant moved for a venire de novo. This motion being overruled he moved for a new trial, which was also overruled, and judgment was rendered upon the verdict. An exception was taken to each ruling. These rulings, among others, are assigned as errors in this court. We will notice such objections only to the proceedings as counsel for the appellant have urged in their brief.

It is insisted that there was error in overruling the appellant's motion for a venire de novo. Two causes were assigned for such motion: 1. That the verdict was so defective and ambiguous that no judgment could be rendered thereon; 2. That the clerk issued a venire for seven of the jurors without authority, in this: That their names were not drawn by the jury commissioners, nor by the clerk in the presence of such commissioners, from the box prepared for that purpose.

There is no defect or ambiguity in the verdict. The appellant is found guilty of a crime which is embraced in the indictment, and his punishment is definitely fixed within the provisions of the statute upon which the prosecution is based. Section 1909, R. S. 1881.

The second ground of the motion proceeds upon a misapprehension of the law. The jury commissioners are not required to draw the names to be inserted in venires for jurors from the box prepared for that purpose, nor is their presence required when such drawing takes place. This is done by the clerk alone, and the presence or assistance of any one else is not essential. Sections 1387-8, R. S. 1881. It may also be stated that an objection to the competency of a juror, or to the manner of his selection, is not available in this court unless it was made a ground for a new trial in the motion therefor in the trial court. Such objection is not presented by a motion for a venire de novo, as this motion only reaches a defective or ambiguous verdict, or a verdict that finds less than the whole matter put in issue. Merrick v. State, 63 Ind. 327; Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433; Moore Crim. L., section 410.

Louisa Doolittle, the prosecuting witness and the wife of the appellant, testified in behalf of the State. She gave a somewhat detailed account of her domestic relations with the appellant, and their difficulties from the time of their marriage in July, 1881, up to the time of his alleged attempt to take her life on November 11th, 1882. Her evidence tended to show that he failed to make provision for her support that she finally refused to live with him upon this account, and that this was the occasion of the...