Gillespie v. State

• Decision Date: 04 April 1907
• Docket Number: No. 20,686.,20,686.
• Citation: 168 Ind. 298,80 N.E. 829
• Parties: GILLESPIE v. STATE.
• Court: Indiana Supreme Court

168 Ind. 298

80 N.E. 829

GILLESPIE

v.STATE.

No. 20,686.

Supreme Court of Indiana.

April 4, 1907.

Appeal from Circuit Court, Ohio County; Nicholas Cornet, Special Judge.

James Gillespie was convicted of murder, and he appeals. Reversed, and defendant discharged.J. B. Coles, Cynthia Coles, F. M. Griffith, A. C. Harris, and Harlan Cleveland, for appellant. Frank D. Johnston, C. W. Miller, W. C. Geake, C. C. Hadley, H. M. Dowling and McMullens & McMullens, for the State.

JORDAN, J.

On December 22, 1903, a grand jury of the Ohio circuit court, duly qualified and impaneled, indicted appellant jointly with certain other persons, to wit, Belle Seward, Carrie Barbour, and Myron Barbour, charging them with murder in the first degree in this that on the 8th day of December, 1903, at the county of Ohio, state of Indiana, they did then and there, with intent to kill and murder one Elizabeth Gillespie, feloniously, purposely, and with premeditated malice shoot at and against said Elizabeth Gillespie with a certain deadly weapon commonly called a “shotgun,” etc., and did then and there and thereby purposely, feloniously, and with premeditated malice mortally wound said Elizabeth Gillespie, of which mortal wound she, at said county, on the 10th day of December, 1903, died, etc. The record, so far as it may be said to relate to appellant, James Gillespie, discloses that on his appearance in court to answer to said charge he unsuccessfully pleaded in abatement. That thereafter, upon being duly arraigned, he separately moved to quash the indictment. This motion was overruled, and thereupon he entered his plea of not guilty. The cause was set for trial on Monday, May 9, 1904, the same being the seventh judicial day of the May term, 1904, of the Ohio circuit court. On this later day the following record of entry appears: “State of Indiana v. James Gillespie, Belle Seward, Carrie Barbour, and Myron Barbour. Comes now the state of Indiana by Theodore Wulber, prosecuting attorney, and Cassius W. McMullen, deputy prosecuting attorney, Harry R. McMullen and Henry N. Spaan, her attorneys, and the defendants come in their own proper persons and by Coles & Coles and F. M. Griffith, their attorneys, and the impaneling of the jury having begun and not being completed, the court directs the jury commissioners to draw a special venire of 40 men,” etc. On the 10th day of May, 1904, the same being the eighth judicial day of the aforesaid term of the Ohio circuit court, the following further proceedings were had in said cause, to wit: “Comes now the state of Indiana, by her attorneys and the defendants in their own proper persons and by their attorneys also come, and the impaneling of the jury is continued and completed, and this case being at issue is now submitted for trial to the following named jurors [setting out the names], 12 good and lawful men, duly sworn to try the issues and a just verdict return according to law and evidence, and the further hearing of this case is postponed until 9 o'clock tomorrow morning.” On May 11, 1904, the following appears of record in said cause: “Comes now the state of Indiana, by the prosecuting attorney and the defendants also come in their own proper persons and by counsel, and the jury herein impaneled and sworn come also in charge of their bailiffs, *** and now at this time the jury herein having been impaneled and sworn but no evidence having been introduced or any statement of the case having been made to the jury, the prosecuting attorney, filed his motion and affidavit for the setting aside of the submission herein.”

This motion and affidavit, together with the rulings of the court and the exceptions and objections of appellant, are all incorporated in a bill of exceptions and thereby made a part of the record, and are as follows: “State of Indiana, Ohio County-ss: State of Indiana v. James Gillespie, Belle Seward, Carrie Barbour, Myron Barbour. Comes now the state of Indiana, through and by Theodore Wulber, the regularly elected prosecutor of the pleas of the state in and for said county and state, and by Harry R. McMullen, Cassius W. McMullen, and Henry N. Spaan, specially appointed by this court to assist in the prosecution of the above-entitled cause, and moves that the submission of said cause for trial be set aside for the reason following, to wit: That one Oscar Jones, a competent person to act as juror, was called to sit upon the jury impaneled to try said cause, and when said juror was interrogated by counsel for the state touching his qualifications to sit as such juror in said cause, said juror answered under oath that he was not related either by blood or by marriage to any of the defendants in said cause, when in truth and in fact he was related to one of said defendants, to wit, Belle Seward. That none of the attorneys for the prosecution knew of such relationship, nor had they any means of knowing of such relationship before said Oscar Jones was accepted and sworn in to act as juror in said cause. That within half an hour before said jury was sworn to try said cause said Jones made answer that he was not related to any of said defendants. That by reason of said facts the attorneys above named were not able and had no opportunity or time to ascertain that such relationship existed as stated herein. That said relationship is as follows: That the motherof said juror was a first cousin of the mother of William Seward, deceased, the first and only husband of the defendant Belle Seward. That said juror made answer that he was not related to any of the defendants and thereby misled counsel for the state who would have challenged him for such cause had said juror disclosed such relationship. That said juror was accepted and sworn to try the said cause at about 3 o'clock p. m., of the 10th day of May, 1904, and immediately thereafter said court adjourned. That shortly after said adjournment the counsel for the state herein named ascertained the truth of the facts hereinbefore stated, and at the first opportunity, that is, immediately at the reconvening of said court on the next day, to wit, May 11, 1904, presented this motion, and before any witnesses were sworn or any evidence heard. Wherefore the state of Indiana moves the court that the submission of said cause be set aside with a view to the re-examination of said juror, Oscar Jones, upon his voir dire, and to give the state an opportunity to challenge said juror for cause as above stated. [Signed and verified by the attorneys for the state].”

The record further shows that this motion was argued by counsel for the state, submitted to the court and by the latter sustained, to which ruling of the court in sustaining said motion and setting aside the submission of the cause to the jury, the defendants, and each of them severally and separately, excepted. Thereupon the state proceeded to examine the juror, Oscar Jones, as follows: “Q. On yesterday you were asked the question whether or not you were related to any of the Gillespies, Sewards, or Barbours, at that time you answered, ‘No, not at all.’ Were you related to the deceased husband of Belle Seward? A. Well, no, not what we call relation. Q. Was not your mother a first cousin to the mother of William Seward? A. No, not a first cousin. Q. Not a cousin? What relation was your mother to the mother of William Seward? A. Well, I can't just exactly tell you, but it was further back than that. Q. You can't tell? A. No, sir. Q. Could you, if you were given a little time? Could you figure it out? A. No, sir, because we never considered ourselves any relation. Never have figured out any relation. Q. You were not, in your judgment, at least? Your mother and his mother were not first or second cousins? A. No, sir, not that I know of. I don't think they were any relation at all.” At the close of this examination of the juror in question the prosecuting attorney in behalf of the state said, “We will excuse Mr. Jones,” and thereupon he was accordingly removed from the jury. To this peremptory challenge of said juror by the state the record discloses that appellant, and each of the other defendants, objected for the reason that the answers of the juror showed that he was not related to either of the defendants, and that said submission was only set aside on account of the relationship to one of the defendants and not to enable the state to exercise further peremptory challenge. This objection was overruled by the court, to which ruling the appellant, and each of the other defendants, excepted, and tendered a joint bill of exceptions embracing such action, rulings, and judgment of the court, and prayed that the same be signed, sealed, and made a part of the record, which was accordingly done on the 11th day of May, 1904, at the time of making said rulings.

Appellant and his codefendants then filed and presented to the court a written motion, whereby they each moved to be discharged from further prosecution in said cause, and that they go acquit “for the reason that a jury was regularly impaneled, sworn, charged, and admonished by the court to try said cause; that since said impaneling, swearing, and charge of said jury, over the objection and exception and protest of the defendants, and each of them, said submission was set aside and over the objection, exception, and protest of the defendants, and each of them, a juror, to wit, Oscar Jones, was excused peremptorily by the state, after having duly qualified by examination as to his competency, and retired from said jury. Wherefore the defendants, and each of them, state that they have once been in jeopardy for this same offense, and the impaneling of another jury places them a second time in jeopardy for the same offense.” This motion the court overruled, to which appellant and the other defendants severally excepted and presented their bill of exceptions thereupon, which was signed and made a part of the record.

It further...