Foreman v. State

• Decision Date: 28 April 1938
• Docket Number: No. 26956.,26956.
• Parties: FOREMAN v. STATE.
• Court: Indiana Supreme Court

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...