Foreman v. State, No. 26956.

Docket NºNo. 26956.
Citation214 Ind. 79, 14 N.E.2d 546
Case DateApril 28, 1938
CourtSupreme Court of Indiana

214 Ind. 79
14 N.E.2d 546

FOREMAN
v.
STATE.

No. 26956.

Supreme Court of Indiana.

April 28, 1938.


Elver Foreman was convicted of automobile banditry, and he appeals.

Affirmed.

[14 N.E.2d 547]

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

[14 N.E.2d 548]

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...

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15 practice notes
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Noviembre 1974
    ...Madison v. State, (1971) 256 Ind. 353, 269 N.E.2d 164; Anderson v. State, (1959) 239 Ind. 600, 158 N.E.2d 457; Foreman v. State, (1938) 214 Ind. 79, 14 N.E.2d Page 805 'ISSUE FIVE 'Did the State establish the corpus delicti of Robbery and First Degree Burglary by evidence independent of Bal......
  • Richardson v. State, No. 67S01-9910-CR-506.
    • United States
    • Indiana Supreme Court of Indiana
    • 1 Octubre 1999
    ...Mood v. State, 194 Ind. 357, 142 N.E. 641 (1924); Mann v. State, 205 Ind. 491, 186 N.E. 283, 187 N.E. 343 (1933); Foreman v. State, 214 Ind. 79, 14 N.E.2d 546 (1938); Armentrout v. State, 214 Ind. 273, 15 N.E.2d 363 (1938); Holt v. State, 223 Ind. 217, 59 N.E.2d 563 (1945); State v. Soucie,......
  • Ballard v. State, No. 2--273A37
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1974
    ...Madison v. State, (1971) 256 Ind. 353, 269 N.E.2d 164; Anderson v. State, (1959) 239 Ind. 600, 158 N.E.2d 457; Foreman v. State, (1938) 214 Ind. 79, 14 N.E.2d ISSUE FIVE Did the State establish the corpus delicti of Robbery and First Degree Burglary by evidence independent of Ballard's extr......
  • Swain v. State, No. 27134.
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Febrero 1939
    ...of the United States can not be sustained. This court has decided that such oaths are not required. Foreman v. State, Ind.Sup.1938, 14 N.E.2d 546;Adams v. State, Ind.Sup.1938, 17 N.E.2d 84, 118 A.L.R. 1095. Mindful as we are of the responsibility that rests upon this court to see that appel......
  • Request a trial to view additional results
15 cases
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Noviembre 1974
    ...Madison v. State, (1971) 256 Ind. 353, 269 N.E.2d 164; Anderson v. State, (1959) 239 Ind. 600, 158 N.E.2d 457; Foreman v. State, (1938) 214 Ind. 79, 14 N.E.2d Page 805 'ISSUE FIVE 'Did the State establish the corpus delicti of Robbery and First Degree Burglary by evidence independent of Bal......
  • Richardson v. State, No. 67S01-9910-CR-506.
    • United States
    • Indiana Supreme Court of Indiana
    • 1 Octubre 1999
    ...Mood v. State, 194 Ind. 357, 142 N.E. 641 (1924); Mann v. State, 205 Ind. 491, 186 N.E. 283, 187 N.E. 343 (1933); Foreman v. State, 214 Ind. 79, 14 N.E.2d 546 (1938); Armentrout v. State, 214 Ind. 273, 15 N.E.2d 363 (1938); Holt v. State, 223 Ind. 217, 59 N.E.2d 563 (1945); State v. Soucie,......
  • Ballard v. State, No. 2--273A37
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1974
    ...Madison v. State, (1971) 256 Ind. 353, 269 N.E.2d 164; Anderson v. State, (1959) 239 Ind. 600, 158 N.E.2d 457; Foreman v. State, (1938) 214 Ind. 79, 14 N.E.2d ISSUE FIVE Did the State establish the corpus delicti of Robbery and First Degree Burglary by evidence independent of Ballard's extr......
  • Swain v. State, No. 27134.
    • United States
    • Indiana Supreme Court of Indiana
    • 9 Febrero 1939
    ...of the United States can not be sustained. This court has decided that such oaths are not required. Foreman v. State, Ind.Sup.1938, 14 N.E.2d 546;Adams v. State, Ind.Sup.1938, 17 N.E.2d 84, 118 A.L.R. 1095. Mindful as we are of the responsibility that rests upon this court to see that appel......
  • Request a trial to view additional results

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