Hamilton v. State, No. 26358.

• Docket Nº: No. 26358.
• Citation: 190 N.E. 870, 207 Ind. 97
• Case Date: June 20, 1934
• Court: Supreme Court of Indiana

207 Ind. 97
190 N.E. 870

HAMILTON
v.
STATE.

No. 26358.

Supreme Court of Indiana.

June 20, 1934.

Appeal from Boone Circuit Court; Fred E. Hines, Special Judge.

Louis Hamilton was convicted of murder in the first degree while in the perpetration of a robbery, and he appeals.

Affirmed.

[190 N.E. 871]

Holmes, Ermston & Holmes, of Indianapolis, for appellant.

Philip Lutz, Jr., of Indianapolis, James D. Sturgis, of Fort Wayne, and Floyd J. Mattice, of Indianapolis, for the State.

ROLL, Judge.

This is a prosecution by the state of Indiana against appellant and another upon an indictment returned by the grand jury of Marion county, wherein appellant is charged with murder in the first degree while in the perpetration of a robbery. Acts 1929, c. 54, p. 137, § 4, Burns' Ann. St. Supp. 1929, § 2412.

Appellant and his codefendant, Charles Vernon Witt, both applied and obtained a change of venue from Marion county, and the cause was sent to Boone county, Ind. In the Boone circuit court the defendants applied for and were granted separate trials. Witt was tried first and convicted. Appellant was arraigned in the Boone circuit court and entered a plea of not guilty. He was tried in July, 1932, in which trial the jury failed to agree and was discharged. He was again placed upon trial in November, 1932, and the jury returned a verdict of guilty as charged.

The Honorable Brenton A. DeVol was special judge and presided at the first trial. Appellant before his first trial filed his request to have a jury drawn from an adjoining county, under the provisions of sections 2260–2264, Burns' Ann. St. 1926, Acts 1905, c. 88, p. 153. Judge DeVol granted appellant's petition and entered an order as provided by the above statute. The jurymen were summoned from Montgomery county. That jury failed to agree on a verdict, and was discharged. Later Special Judge DeVol resigned as such special judge and Judge Frederick E. Hines of the Hamilton circuit court was duly selected as special judge to try this case. On November 10, 1932, Special Judge Hines ordered a special venire of forty names to be drawn from the jury box. Appellant filed a motion to set this special venire aside for the reason the court had theretofore by its judgment directed that the jurors be drawn from Montgomery county. This motion was overruled. Appellant filed a motion to remove and set aside certain prospective jurors, for the reason

[190 N.E. 872]

they were not drawn by the jury commissioners out of the jury box but were selected by the sheriff. This motion the court overruled. The court ordered the drawing of several additional special venires, all of which were drawn by the jury commissioners out of the jury box, and finally a jury was impaneled and sworn to try the cause.

Appellant was found guilty of murder in the first degree as charged in the indictment, and sentenced to death as provided by law.

Appellant's motion for a new trial was overruled, and the only error assigned in this court is the overruling of his motion for a new trial.

Appellant assigns eight reasons in his motion for a new trial: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3), (4), and (5) relate to the admission of certain evidence over the objection of appellant; (6), (6 1/2), and (7) relate to the giving and refusal of certain instructions.

Appellant first contends that the verdict is not sufficient to overcome the presumption of innocence and second he contends that State's Exhibit 3 was erroneously admitted, but says that this proposition will be discussed fully under cause five of the motion for a new trial.

We will discuss the sufficiency of the evidence, and the admission of State's Exhibit 3 after we have disposed of other questions presented.

The second ground for a new trial is, “the verdict is contrary to law” and under this cause for a new trial appellant seeks to present the following points: (1) Of overruling of his motion to set aside venire of jurors; (2) of overruling of his motion to exclude certain prospective jurors; (3) of being denied a fair trial because tried before a jury, drawn from Boone county, the place of trial; (4) that drawing jurors from Boone county was contrary to law, and therefore prejudicial to appellant; (5) that the selection of persons for jury service by the sheriff was contrary to law and prejudicial to appellant, and (6) of the court's refusal to permit the court reporter to read the testimony of Helen Zyskowski, given at a former trial.

We learn from the record that all of the above motions were made before the jury was selected and sworn to try the case. Appellant did not challenge the array of the jury or move to dismiss the jury thus selected or to withdraw the submission therefrom. Appellee points out in its brief that no question touching the alleged improper impaneling of the jury was properly saved or is presented by the record in this case. It points out that an error in connection with the impaneling of the trial jury cannot be assigned or specified under the ninth statutory ground for a new trial, but must be assigned or specified in a motion for a new trial under the first statutory ground, as provided in section 2325, Burns' Ann. St. 1926, which reads in part as follows:

“2325. (2158.) Causes—Motion.—282. The court shall grant a new trial to the defendant for the following causes, or any of them:

“First. Irregularities in the proceedings of the court or jury, or (for) any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial. ***

“Ninth. When the verdict of the jury or the finding of the court is contrary to law or is not sustained by sufficient evidence.”

The statute is sufficient within itself to sustain appellee's position. It has been decided many times by this court that the trial of a case does not begin until the jury has been impaneled and sworn. Durst v. State (1920) 190 Ind. 133, 128 N. E. 920; Ewbank Criminal Law, sections 372, 392, 700; Cosilito v. State (1926) 197 Ind. 419, 151 N. E. 129;Bruce v. State (1927) 199 Ind. 489, 158 N. E. 480;New York, etc., R. Co. v. Shields (1916) 185 Ind. 704, 112 N. E. 762;Collett v. State (1901) 156 Ind. 64, 65, 59 N. E. 168. It therefore follows that the error of which appellant complains did not occur at the trial. This point is well stated in the following excerpts from the case of Bush v. State (1920) 189 Ind. 467, at page 471, 128 N. E. 443, 445:

“The overruling of appellant's challenge to Juror Kuhler is also assigned as a cause in his motion for a new trial, and is therein stated as ‘an error of law occurring at the trial.’ The state makes the point that the trial did not begin until the jury was impaneled and sworn; consequently the alleged error of which appellant complains did not occur at the trial.

“Section 2158, Burns' 1914 [Acts 1905, p. 584, § 282], prescribes various causes for which a new trial may be granted. One of the causes thus provided (clause 7) is for ‘error of law occurring at the trial.’ The ruling now under consideration, as we have seen, was specifically assigned as a cause for a new trial under clause 7, supra, and not under clause 1, as appellant would have us treat it. We must assume that the court below ruled on the motion as presented by the

[190 N.E. 873]

record before us, and for us not to do so would be a violation of a long–settled rule in this jurisdiction, that every reasonable presumption should be indulged in favor of the jurisdiction, rulings, and regularity of the proceedings of the trial court. New York, etc., R. Co. v. Shields (1916) 185 Ind. 704, 112 N. E. 762. We would have a different proposition if this ruling had been brought under clause 1, supra. Collett v. State (1901) 156 Ind. 64, 59 N. E. 168.”

And at page 474 of 189 Ind., 128 N. E. 443, 445, of the same opinion of this court it is said:

“In the instant case the claimed erroneous ruling occurred before the jury was impaneled and sworn. Therefore under the authorities cited the ruling in question is not before this court for review as an error of law occurring at the trial.”

The alleged improper proceedings in the selection of jurors and impaneling the trial jury presents no question for the consideration of this court by assigning and specifying the ninth statutory ground for a new trial, viz., “that the verdict is contrary to law” for the reason that this specification means and relates to the law as applied to the facts as shown by the evidence. It means that applying the law to the facts as shown by the evidence there is no basis in law for a verdict of guilty. It is virtually a demurrer to the evidence. Gaines v. Taylor (Ind. App. 1933) 185 N. E. 297, 299;Metropolitan Life Ins. Co. v. Lyons (1912) 50 Ind. App. 534, 98 N. E. 824, 825;De Tarr v. State (1906) 37 Ind. App. 323, 76 N. E. 897;Louisville, etc., Ry. Co. v. Renicker (1893) 8 Ind. App. 404, 35 N. E. 1047;Phenix Ins. Co. v. Rogers et al. (1894) 11 Ind. App. 72, 38 N. E. 865. The rule governing this proposition is well stated in the case of Gaines v. Taylor, supra, and we quote the following from that case with approval:

“A verdict is ‘contrary to law’ in the sense that a new trial should be granted for the reason that it is contrary to law, ‘when, in its general scope and meaning, it is contrary to the principles of law applicable to the case, and not merely defective in some particular.’ Anderson v. Donnell et al. (1879) 66 Ind. 150, 160; Watson's Works on Practice and Forms, § 1996. In the case of Louisville, etc., Ry. Co. v. Renicker (1893) 8 Ind. App. 404, 35 N. E. 1047, and in the case of Phenix Ins. Co. v. Rogers et al. (1894) 11 Ind. App. 72, 38 N. E. 865, 869, this court quotes with approval from Buskirks' Practice as follows: ‘A motion for a new trial on the ground that the verdict or decision is contrary to law is in the nature of a demurrer to the evidence. It admits all the evidence given...