Fritch v. State

• Decision Date: 22 February 1927
• Docket Number: 25,090
• Citation: 155 N.E. 257,199 Ind. 89
• Parties: Fritch et al. v. State of Indiana
• Court: Indiana Supreme Court

155 N.E. 257

199 Ind. 89

Fritch et al. v. State of Indiana

No. 25,090

Supreme Court of Indiana

February 22, 1927

1.CRIMINAL LAW.---Trial court's determination as to juror's expression of opinion that defendant was guilty not disturbed on appeal.---The determination of the trial court that, prior to the trial, a juror had not expressed an opinion as to the guilt of the defendant will not be disturbed on appeal when there is evidence supporting the court's decision, notwithstanding conflicting affidavits to the contrary. p. 91.

2.JURY.---Qualifications of a juror.---To be qualified as a juror, either grand or petit, a person must be a resident voter of the county, and either a freeholder or householder p. 92.

3 ELECTIONS.---Voters' qualifications cannot be changed by statute.---The qualifications of voters as defined in Art. 2 2 of the state Constitution(91 Burns 1926) cannot be changed or added to by statute. p. 92.

4.JURY.---Registration or voting not qualification of juror.---A house- holder twenty-one years of age who had lived in the county of a trial for four years was qualified to serve as a juror although he had never voted or registered. p. 92.

5.CRIMINAL LAW.---Cross-examination of defendant.---When a defendant becomes a witness in his own behalf, he subjects himself to the same treatment on cross-examination as other witnesses. p. 93.

6.CRIMINAL LAW.---Questioning of defendant, on cross-examination, about his conviction of crime.---In this state, it is proper to ask a de-defendant, on cross-examination, whether he has been convicted of a crime for the purpose of discrediting his testimony, and this rule includes misdemeanors as well as felonies. p. 93.

7. WITNESSES.---In criminal prosecutions, defendants may be cross-examined as to previous convictions of misdemeanors.---In a prosecution against three persons for burglary and conspiracy to commit a felony, it was not an abuse of discretion to permit cross-examination of the defendants as to previous conviction for misdemeanors, as they may be cross-examined as to previous conviction of "crime" to discredit their testimony, and the word "crime" includes both felonies and misdemeanors. p. 93.

8.WITNESSES.---Cross-examination of defendant as to prior convictions within discretion of trial court.---Cross-examination of a defendant in a criminal prosecution relative to prior convictions as a means of discrediting his testimony is within the sound discretion of the trial court. p. 93.

9.CRIMINAL LAW.---Presumed that trial court limited defendants' evidence of a prior conviction, on cross-examination, to their credibility.---It will be presumed on appeal, where the instructions are not in the record, that on cross-examination of defendants relative to a prior conviction, the evidence was limited by proper instructions to the credibility of the defendants. p. 93.

10.CRIMINAL LAW.---Felons are competent witnesses and their credibility is for the jury.---The fact that witnesses for the state were felons would not require the reversal of a judgment of conviction, as it would not render them incompetent and their credibility would be for the jury. p. 94.

From Brown Circuit Court; Fremont Miller, Judge.

Art Fritch, Lowell Long and Vernon Miller were convicted of burglary and conspiracy to commit a felony, and they appeal.

Affirmed.

James B. Wilson, for appellants.

Arthur L. Gilliom, Attorney-General and Frank L. Greenwald, for the State.

OPINION

Gemmill, C. J.

Art Fritch, Lowell Long and Vernon Miller, appellants herein, were jointly indicted, tried and convicted of burglary and conspiracy to commit a felony, in the Brown Circuit Court.They have appealed and have assigned as error that the court erred in overruling their motion for a new trial.The crime of burglary in the first degree is defined in § 1, ch. 165, Acts 1915, § 2446 Burns 1926; and conspiracy to commit a felony is defined in § 641, ch. 169, Acts 1905, § 2882 Burns 1926.

On the night of January 17, 1925, James Richardson and his wife, Mary Richardson, in their home in the country between Helmsburg and Trevlac, in Brown county, were robbed of a sum of money amounting to $ 1,200, or more, by three men, whose faces were blacked.Mr. Richardson was seventy-two years old and in poor health.The robbers remained there for two or three hours and mistreated and tortured Mr. and Mrs. Richardson until the money which they had there was secured.

Two of the causes for a new trial relate to two of the jurors.One of the jurors answered upon his voir dire that he had not formed an opinion and had not expressed an opinion as to the guilt or innocence of either of the defendants.After the trial, as a part of defendants' motion for new trial, they filed an affidavit of another party, who stated that, prior to the trial, he heard said juror state that from what he had heard other people say, he thought they were guilty.The juror then executed an affidavit in which he stated that he did not say what the other party alleged that he had said, and that prior to the time he was selected as a juror, he had not formed or expressed an opinion as to the guilt or innocence of the defendants or either of them and that, at the time he was selected as a juror, he had no opinion as to their guilt or innocence and that he did not know either of them.The court tried the matter by considering the two affidavits and found that the charge was not sustained.There being evidence to support this decision, it cannot be disturbed on appeal.Smith v. State(1895), 142 Ind. 288, 298, 41 N.E. 595;Hinshaw v. State(1897), 147 Ind. 334, 378, 379, 47 N.E. 157.

Appellants claimed that another member of the jury was not a legal voter and therefore not a legal juror.This juror had lived in Brown county for four years with his family, but had never voted in that county and had never registered as a voter there.It was contended that he was not a voter because he was not registered and, for that reason, was not eligible to serve as a juror.To be qualified as a juror, either grand or petit, a person must be a resident voter of the county and a freeholder or householder. § 1, ch. 176, Acts 1917§ 1833 Burns 1926.Every citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding the election, shall be entitled to vote in the township or precinct where he or she may reside.Art. 2, § 2, State Constitution, § 91 Burns 1926.When the Constitution defines the qualifications of voters such qualifications cannot be changed nor added to by statute.Morris v. Powell(1890), 125 Ind. 281, 25 N.E. 221;State v. Shanks(1912), 178 Ind. 330, 99...