Fritch v. State

• Decision Date: 22 February 1927
• Docket Number: No. 25090.,25090.
• Citation: 199 Ind. 89,155 N.E. 257
• Parties: FRITCH et al. v. STATE.
• Court: Indiana Supreme Court

199 Ind. 89

155 N.E. 257

FRITCH et al.

v.STATE.

No. 25090.

Supreme Court of Indiana.

Feb. 22, 1927.

Appeal from Brown Circuit Court; Fremont Miller, Judge.

Art Fritch and others were convicted of burglary and conspiracy to commit a felony, and they appeal. Affirmed.

James B. Wilson, of Bloomington, for appellants.

Arthur L. Gilliom, Atty. Gen., and Frank L. Greenwald, of Gary, for the State.

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 section 1, c. 165, p. 619, Acts 1915, and in section 2446, Burns' 1926; and conspiracy to commit a felony is defined in section 641, c. 169, p. 742, Acts 1905, and in section 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 72 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.

[1] 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 defendant's 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.

[2][3] 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 4 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. Section 1, c. 176, p. 688, Acts 1917; section 1833, Burns' 1926. Every citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the 6 months, and in the township 60 days, and in the ward or precinct 30 days, immediately preceding the election, shall be entitled to vote in the township or precinct where he or she may reside. Article 2, § 2, state Constitution; section 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, 9 L. R. A. 326;State v. Shanks (1912) 178 Ind. 330, 99 N. E. 481. The theory upon which registration laws may be supported is that they do not impair or abridge the elector's privilege, but merely regulate its exercise by requiring evidence of the right. 9 R. C. L. 1036, § 52. Only a voter can register. The juror in question was a voter, eligible to serve as a juror; as registration is not one of the constitutional qualifications of a voter. Appellants' contention as to said juror cannot be sustained.

[4][5][6][7] Errors are alleged to have been committed at the trial, as the court over the objections of each of said defendants required each of them, when a witness on cross-examination, to answer questions put to him as to his conviction before said trial of certain misdemeanors. The misdemeanors were assault and battery, trespass, slander, and provoke. It is well settled that, when a defendant becomes a witness in his own behalf, he subjects himself to the same treatment on cross-examination as other witnesses. Neal v. State (1912) 178 Ind. 154, 98 N. E. 872;Grose v. State (1925) 197 Ind. 331, 149 N. E. 722. In Underhill, Criminal Evidence (3d Ed.) § 115, it is said:

“The defendant may be questioned when he becomes a witness in his own behalf as to specific acts to test his credibility. Thus his previous conviction of an offense, crime, or felony may be shown.”

In a criminal case, in this state, it is proper to ask a defendant, on cross-examination, if he has been...