Gianino v. State

• Decision Date: 21 April 1915
• Docket Number: 22,731
• Citation: 108 N.E. 579,183 Ind. 199
• Parties: Gianino v. State of Indiana
• Court: Indiana Supreme Court

108 N.E. 579

183 Ind. 199

Gianino v. State of Indiana

No. 22,731

Supreme Court of Indiana

April 21, 1915

From Clark Circuit Court; James W. Fortune, Judge.

Prosecution by the State of Indiana against Joseph Gianino. From a judgment of conviction, the defendant appeals.

Affirmed.

L. A Douglass, H. W. Phipps and B. C. Lutz, for appellant.

Richard M. Milburn, Attorney-General, Warren B. Allison, Horace M Kean, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney and Wilbur T. Gruber, for the State.

OPINION

Morris, J.

Appellant was charged by affidavit with the crime of arson. § 2260 Burns 1914, Acts 1905 p. 584, § 371. From a judgment on a verdict of guilty, he prosecutes this appeal. The record shows that after deliberation, the jury returned into open court and its foreman handed to the clerk, who read the same, the following: "We the jury find the defendant guilty as charged in the affidavit: that he is -- years of age, and that he burned property of the value of $___. George Van Pelt, foreman." Thereupon defendant moved that the jury be polled. The motion was overruled, but the court asked the jurors, "Is this your verdict gentlemen?", and they answered "Yes", and then the court asked, "So say you all?" and they answered "Yes". Following this colloquy, the court directed the jurors who were not members of the regular panel to stand aside and report to the sheriff for their per diem, which direction was obeyed, and thereupon they were recalled and placed in the jury box and the jury was ordered by the court to return to the jury room and correct its verdict and fill out the blanks showing the age of defendant and the value of the property burned. To this, appellant objected and excepted. The jury returned to the jury room, and, as shown by the record, "afterwards, on the same day, said jury returned into court, the following corrected verdict, to wit: 'We the jury find the defendant guilty as charged in the affidavit: that he is 25 years of age, and that he burned property of the value of $ 5,000.00. George Van Pelt, foreman.'"

To the above proceeding defendant objected and moved the court to discharge him. The motion was overruled. The judgment here was rendered on the above corrected verdict, and the first one returned was not recorded. After the return of the corrected verdict, the appellant made no motion to require the polling of the jury. Reversible error is predicated on the denial of appellant's motion to poll the jury. § 2142 Burns 1914, Acts 1905 p. 584, § 266, confers on a defendant in a criminal case the right to have a jury polled which consists in asking each juror separately in relation to his assent to the verdict before its recording. State Life Ins. Co. v. Postal (1909), 43 Ind.App. 144, 84 N.E. 156, 1093. Had such a motion been made and overruled after the return of the corrected verdict, the court's action doubtless would have constituted reversible error, but we are constrained to hold otherwise where, as here, the verdict first returned was not accepted by the court or recorded. When the jury returned to the jury room, although sent back to correct its verdict, it retained its power to find the appellant guilty or not guilty. The failure to move for a poll of the jury when it returned the second time, or to renew the former...