Foreman v. State

• Decision Date: 28 April 1938
• Docket Number: 26956.
• Parties: FOREMAN v. STATE.
• Court: Indiana Supreme Court

14 N.E.2d 546

214 Ind. 79

FOREMAN v. STATE.

No. 26956.

Supreme Court of Indiana

April 28, 1938

Appeal from Adams Circuit Court, Hanson F. Mills, Special judge.

Smith & Parrish, of Fort Wayne, for appellant.

Omer S. Jackson, Atty. Gen., and Rexell A. Boyd, Deputy Atty Gen., for the State.

SHAKE Judge.

Appellant was indicted, tried by a jury, and convicted of the crime of automobile banditry. He has appealed to this court and he assigns as error the action of the trial court in: (1) Sustaining the demurrer of the State to his plea in abatement; (2) sustaining the demurrer of the State to his plea in bar; (3) overruling his motion to quash the indictment; (4) overruling his motion for a new trial.

The plea in abatement was upon the theory that the jury commissioners who drew the grand jury that indicted the appellant were not legally qualified because they had not taken an oath to support the Constitution of the United States and the Constitution of the State of Indiana. Burns' Ann.St.1933, § 4-3301, section 1266 Baldwin's Ind.St.1934, prescribes the form of oath to be taken by jury commissioners before they enter upon their duties. The appellant does not claim that the jury commissioners did not take and subscribe to this oath. Section 4 of article 15 of the Constitution of Indiana provides that: 'Every person elected or appointed to any office under this constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office.' (Our italics.) Jury commissioners are not constitutional officers; they are statutory officers. Burns' 1933, § 4-3301, section 1266 Baldwin's Ind.St.1934. The Legislature may, in its wisdom, abolish the entire grand jury system. Constitution of Indiana, art. 7, § 17. The General Assembly created the offices of jury commissioners, and provided by law the form of oath to be taken by them. We hold that this oath is sufficient, and that the provisions of article 15, section 4, of the State Constitution, have no application hereto. The demurrer to the plea in abatement was properly sustained.

By his plea in bar the appellant sets forth that in August, 1932, he was charged by affidavit with the crime of burglary in the Adams circuit court; that the prosecution remained on the dockets of that court until September, 1934, when he was discharged under the provisions of Burns' 1933, § 9-1403, section 2239, Baldwin's Ind.St.1934, upon the ground that three terms of said court had intervened and said cause had not been tried. It is the appellant's contention that the indictment upon which he was tried and convicted charged a crime which grew out of the same facts as the previous prosecution, and that his discharge from the former was a bar to the latter. The prosecution for burglary instituted in 1932 was based upon Burns' 1926, § 2446, section 2441, Baldwin's Ind.St.1934; the prosecution for automobile banditry was under Burns' 1933, § 10-4710, section 2573, Baldwin's Ind.St.1934. In Ramsey v. State, 1932, 204 Ind. 212, 183 N.E. 648, 652, this court said that the statute on automobile banditry 'creates and defines a new and specific offense * * * the characterizing element being the having of an automobile at hand with which to escape, or the seizing of an automobile with which to escape. The offense, and the only offense * * * is automobile banditry, although by definition automobile banditry includes the elements of the commission, or attempted commission, of a felony.' In Durke v. State of Indiana, 1932, 204 Ind. 370, 183 N.E. 97, it was held that an acquittal on a charge of burglary would not bar a subsequent prosecution for conspiracy to commit burglary growing out of the same transaction, for the reason that the essential proof in a prosecution for burglary would not be sufficient to convict one charged with a conspiracy to commit burglary. The same rule, and the reasons that sustain it, are applicable to appellant's case, and his plea in bar was insufficient. The demurrer thereto was properly sustained.

It is claimed that the indictment should have been quashed because it is duplicitous. It charges the appellant with having an automobile and with seizing an automobile for the purpose of escaping, or attempting to escape. We do not think it charges two separate and distinct offenses. It follows the language of the statute. 'Where, as here, the offense charged consists of one or more of the forbidden acts committed at the same time and included in a single section of the statute, and the punishment is the same for one or all of the offenses named, a single count charging more than one conjunctively will not be bad for duplicity.' Glaser v. State, 1932, 204 Ind. 59, 183 N.E. 33, 34.

Several of the propositions presented by the motion for a new trial relate to the introduction of evidence and as to its sufficiency. For that reason it is proper that we should set out some of the facts which were fairly supported by the State's witnesses. Amanda Ayers, a widow 77 years of age, lived alone on a farm. On the evening of August 17 1932, she was sitting in her home after having finished her household chores. She was disturbed by a noise at a screen door at her back and a strange man entered the room. To her inquiry as to what he wanted he replied that she would soon find out. He then seized her by the shoulders and held her down in the chair while he tied a cloth over her mouth and eyes. Another man then came into the room and together they tied her hands and feet to the chair. Both men then went upstairs and ransacked the house. After about an hour and a half, Mrs. Ayers freed herself and ran to the home of a neighbor. The neighbor called the sheriff, who arrived on the scene a short time later. He found that the telephone wires leading to Mrs. Ayers' home had been cut. Near the house he found tracks indicating that an automobile had recently been parked beside the highway, and there were tracks of two men leading from the Ayers' house to the place where the automobile had stood. Mrs. Ayers positively identified tha appellant as the first man that entered her home, but she did not see the other man. A young man named Charlie Myers, who lived in the neighborhood, had been attracted by the unusual operations of an automobile late in the afternoon and on the night the crime was committed. This car was driven back and forth along a highway near Mrs. Ayers' home a number of times. The lights were turned on and off frequently. The young man obtained a description of the car, observed that it was occupied by a woman and a child, and took its license number, which he gave to the sheriff. There was testimony that the car belonged to a woman by the name of Florence Foreman. She sat in the courtroom with the audience during the trial, and was pointed out to the jury, but was not called as a witness. Appellant was arrested at the county jail when he went there to see his wife. When asked by the sheriff about the Amanda Ayers' case, he replied: 'I am not going...