Fenwick v. State

• Decision Date: 19 February 1926
• Docket Number: No. 24525.,24525.
• Citation: 150 N.E. 764,197 Ind. 572
• Parties: FENWICK v. STATE.
• Court: Indiana Supreme Court

197 Ind. 572

150 N.E. 764

FENWICK

v.STATE.

No. 24525.^*

Supreme Court of Indiana.

Feb. 19, 1926.

Appeal from Delaware Circuit Court; Clarence W. Dearth, Judge.

Vonnie Fenwick was convicted of selling intoxicating liquor, in violation of Acts 1921, p. 736, c. 250, § 1, and he appeals. Affirmed.

A. E. Needham, of Muncie, for appellant.

U. S. Lesh, Atty. Gen., for the State.

MYERS, J.

Appellant, in the court below, was convicted of the offense of selling intoxicating liquor to one Henry Foreman. Acts 1921, § 1, c. 250, p. 736. The overruling of his motion for a new trial is the only error relied on for a reversal of the judgment rendered against him. While appellant's motion for a new trial contains 24 specifications, he here urges but 3 of them, namely: Illegally selected petit jury for the April term of the Delaware circuit court, at which term and before which jury appellant was tried; error of the court in admitting certain evidence; and want of evidence to support his conviction. The affidavit upon which appellant was tried was filed December 28, 1922. He was arrested January 2, 1923, and tried before a jury the following April 25th.

[1] Appellant's first objection to the manner of selecting the regular jury for the April term of court was made at the time of filing his motion for a new trial, in which he incorporates his affidavit, wherein he makes it appear that, while the court appointed jury commissioners at the November term, 1922, they did not take the oath of office until the January term-January 2, 1923-and made no effort to select persons for either grand or petit jury service prior to that date. Furthermore, on January 2, 1923, upon the order of the Delaware circuit court, the jury commissioners so qualified then and there purged the jury box of all names, and selected and placed in the box the names of fifty persons to act as jurors, and from which the names of 12 persons were drawn for petit jury service for the January term, 1923. At no time was there any record entry in the clerk's office or order book entry of the Delaware circuit court showing the names of the persons composing the jury as the regular panel for the April term of that court. Other failures to comply with the requirements of sections 1664, 1665, and 1668, Burns' 1914, are pointed out, which, if true, indicate slight attention was given to the requirements of these statutory provisions. There is no claim of fraud or corruption in selecting the names of persons for jurors, or tampering with the jury box to the prejudice of appellant. He, under oath, disclaimed any knowledge by himself or his counsel of the facts set forth in his affidavit until after the jury had returned its verdict. This is not a sufficient showing of diligence. Smith v. State, 124 N. E. 698, 188 Ind. 501. An examination of the public records in the clerk's office any time after his arrest and before April 25th, the date of the trial, would have disclosed all the facts of which he claims ignorance.

Upon the circumstances shown, appellant, by accepting the jury to try his case, waived all right to question the manner in which the jurors had been drawn; hence we hold that the objections now urged as to the qualifications of the jury commissioners, and the manner of selecting the panel for the April term, whatever merit they may have, came too late. People v. Duncan, 103 N. E. 1043, 261 Ill. 339;State v. McClain, 183 N. W. 305, 191 Iowa, 750;State v. Page, 110 S. W. 1057, 212 Mo. 224, 239;State v. Dickerson, 19 So. 140, 48 La. Ann. 308;Bergman v. Wolff (Super. Ct.) 11 N. Y. S. 591;Commonwealth v. Freeman, 31 A. 115, 166 Pa. 332;Burton...