Gilmore v. State, 28649

• Decision Date: 16 May 1951
• Docket Number: No. 28649,28649
• Parties: GILMORE v. STATE.
• Court: Indiana Supreme Court

Page 677

98 N.E.2d 677

229 Ind. 359

GILMORE v. STATE.

No. 28649.

Supreme Court of Indiana.

May 16, 1951.

Willbur F. Dassel, Evansville, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty. Gen., Merl M. Wall, Deputy Atty. Gen., for appellee.

EMMERT, Judge.

The appellant was indicted for the offense of voluntary manslaught, of which he was found guilty by a jury. From the judgment on the verdict he prosecutes this appeal.

Before entering a plea of not guilty, the appellant filed a verified plea in abatement, which in substance alleged that after the grand jury had been impaneled, one member thereof stated that, 'he was opposed to the infliction of capital punishment and that he did not feel qualified to serve upon the Grand Jury where such a case might come before him, and further stated that he would not, if he served upon the Grand Jury, bring an indictment even if a first degree murder case were brought before such jury.' Thereupon the trial court excused said grand juror from further service. The appellant does not complain that the statutes on drawing another grand juror from the jury box to replace the one excused were not followed. Appellant alleged that during such time he was not in custody or on bail to answer any offense or crime, and he had no knowledge that the grand jury intended to investigate any offense claimed to be committed by him, and that he was not present in person or by attorney at the time the grand jury was impaneled or the grand juror excused. The state filed a demurrer to this plea in abatement, which was sustained, which ruling is here assigned as error.

It does not appear that before the impaneling of the grand jury the members were sworn to answer questions concerning their competency. This practice was recognized as proper in Jones v. State, 1831, 2 Blackf. 475. In that case the attorney prosecuting the pleas of the state asked ond juror "if he could in his conscience find any man guilty of an offense which would subject him to the punishment of death?" And the juror answered "he thought he could not in his conscience find any man guilty of an offense which would subject him to death." The trial court excused the grand juror for cause. This court, in deciding this was not error, said, 'The object, in these cases, is not to procure a jury that will acquit the guilty or convict the innocent, but to select such men as will impartially hear and examine, and acquit the innocent and convict the guilty. A grand jury is the great inquest between the government and the citizen; an institution that should be preserved in its purity; and no person should ever be permitted to take a seat as a member thereof, except such good and lawful men as will impartially and faithfully carry the true objects of the institution into effect. We think the Court did not err.'

In State ex rel. Reichert v. Youngblood, 1947, 225 Ind. 129, 73 N.E.2d 174, we held it was proper for an amicus curiae to bring to the attention of the court misconduct on the part of one or more grand jurors after the grand jury had been impaneled. The state is entitled to a grand jury which will have no conscientious scruples against discharging its statutory duty. In the opinion this court said: 'The grand jury system came to this country as a part of the common law. 38 C.J.S., Grand Juries, § 1, p. 982. In this state its selection, impaneling, swearing, instruction, rights, powers and duties are largely governed by statute. However, when cases not governed by the statute arise, resort may be had to the common law principles as declared by the courts of this state, as well as other states, for guidance. Williams v. State, 1919, 188 Ind. 283, 123 N.E. 209.' 225 Ind. at page 137, 73 N.E.2d at page 177.

'The rule is well settled that for any good cause shown the court may, without challenge from either party, excuse a juror, of its own motion, before he is sworn, and if an impartial jury is thereafter obtained the defendant cannot complain.' United States v. Jones, D.C. 1895, 69 F. 973, 975, 976. If, after the grand jury is impaneled it should develop that any member is conscientiously opposed to doing his duty, the court on its own motion should and does have the right to remove him for cause, and to complete the grand jury by properly adding another member in place of the one so excused. See 38 C.J.S., Grand Juries, § 31, p. 1021. The demurrer to the plea in abatement was properly sustained.

By a special bill of exceptions in the record it appears that the petit jury brought its verdict into open court, and by its foreman stated that it had reached its verdict. The verdict was then delivered to the court bailiff in charge of the jury, and by him delivered to the deputy clerk, who upon instructions of the court read the verdict, which stated that the jury found the defendant not guilty. Thereupon the foreman stated, 'What was that, what was that you just read? We found the defendant guilty.' After the verdict was again read the foreman stated that this was the wrong verdict and that 'We found the defendant guilty.' The trial judge said to the jury, 'Was the first verdict rendered a few minutes ago signed by inadvertence or by mistake?' And the foreman answered, 'By mistake, yes sir.' The judge then asked, 'Is that correct, gentlemen of the jury?' to which each juror said, 'That is right, yes.' After the jury had returned to the jury room to correct its verdict it returned into open court a verdict of guilty, and upon being polled by the court, the jury stated that it was its verdict, which the court then accepted and ordered spread of record in the record of the Vanderburgh Circuit Court. This verdict found the defendant guilty of voluntary manslaughter, as charged in the indictment, and that his true age was 39 years. It was then endorsed by the official file mark of the Vanderburgh Circuit Court.

The appellant's contention is that the first verdict was the only one the jury could return, and upon it he was entitled to a judgment of acquittal. This presents the question as to when the verdict in a criminal case becomes final.

Section 9-1811, Burns' 1942 Replacement, provides for the return of the verdict in open court and gives the defendant the right to have the jury polled. The practice in this state has been for the trial judge to ask the jury if it has agreed upon its verdict. If the foreman of the jury answers in the affirmative, the verdict is ordered delivered to the bailiff, who in turn delivers it to the clerk, if present, or to the judge, and then the...