Hauk v. The State

• Decision Date: 16 February 1897
• Docket Number: 18,054
• Citation: 46 N.E. 127,148 Ind. 238
• Parties: Hauk v. The State
• Court: Indiana Supreme Court

46 N.E. 127

148 Ind. 238

Hauk v. The State

No. 18,054

Supreme Court of Indiana

February 16, 1897

Rehearing Denied June 11, 1897, Reported at: 148 Ind. 238 at 264.

From the Montgomery Circuit Court.

Affirmed.

Clodfelter & Davis and George P. Haywood, for appellant.

W. A Ketcham, Attorney-General, Merrill Moores, Dumont Kennedy and Thomas & Whittington, for State.

OPINION

Jordan, C. J.

Appellant and one William R. Stout were jointly indicted by the grand jury of Montgomery county for the crime of producing an abortion. The defendant Stout severed, and appellant was alone tried and convicted, and over his motion for a new trial he was sentenced in accordance with the verdict of the jury to pay a fine and be imprisoned in the State prison for a term of five years. The indictment contains three counts, but the court in its instructions confined the jury in their deliberations to the second count by instructing them that under the evidence there could be no conviction upon the first or third, and the verdict discloses that the jury found appellant guilty as charged in the second count of the indictment, hence all questions relating to the first and third counts may be considered as properly eliminated from the case.

Appellant in his motion for a new trial assigned one hundred and four reasons for setting aside the jury's verdict, and his learned counsel in their brief seek to present numerous alleged erroneous rulings upon the part of the lower court. The prosecution is based upon section 1996, Burns' R. S. 1894 (1923, R. S. 1881), which is as follows:

"Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman, or, with like intent, uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, if the woman miscarries or dies in consequence thereof, be fined not more than five hundred dollars nor less than fifty dollars, and imprisoned in the state prison not more than fourteen years nor less than three years."

The second count of the indictment reads as follows:

"And the grand jurors aforesaid, on their oaths aforesaid do further present that one William R. Stout and one Philip Hauk, on the 18th of January, 1896, at and in Fountain county, and State of Indiana, did then and there unlawfully, feloniously and willfully use a certain instrument and substance to the grand jurors unknown, in and upon the body and womb of Grace McClamrock, who was then and there a pregnant woman, by then and there unlawfully, feloniously, and willfully introducing said instrument and substance into the body and womb of the said Grace McClamrock with the intent then and there and thereby to procure the miscarriage of the said Grace McClamrock, the said William R. Stout and the said Philip Hauk then and there well knowing that the said Grace McClamrock was then and there a pregnant woman, and the said Grace McClamrock in consequence thereof and by said use of said substance and instrument as aforesaid, did, on the 20th day of January, 1896, at and in the county of Montgomery and State of Indiana, miscarry; and the said Grace McClamrock in consequence thereof, and by said use of said instruments and substance, and in consequence of said miscarriage, did, on the 24th day of January, 1896, at and in the said county of Montgomery and State of Indiana, die; said miscarriage not being then and there necessary to preserve the life of the said Grace McClamrock."

We will address our inquiry to the several rulings or decisions of the court, upon which counsel for appellant insist upon a reversal, in the order in which they have been presented in their brief. Appellant applied for a change of venue to another county, basing his application therefor upon the alleged grounds that he could not secure a fair and impartial trial in Montgomery county on account of the excitement, bias and prejudice existing therein against him and his cause of defense. He filed in support of his said application the affidavits of nine persons. The State resisted the change and in support of its resistance filed the affidavits of sixteen persons, all tending to disprove that any excitement, bias or prejudice existed in the county against the appellant that would prevent him from having a fair and impartial trial therein.

It was shown that some of the affiants whose affidavits were produced by the State, had but recently been in all parts of the county, and from their conversations and intercourse with its citizens had an opportunity to familiarize themselves relative to the facts about which they deposed. The court denied this application, and this, counsel for appellant urge, was an abuse of a sound judicial discretion. A change of venue in a criminal action, not punishable by death, by the provisions of section 1840, Burns' R. S. 1894 (1771, R. S. 1881), is left to the sound discretion of the trial court, and under a firmly settled rule, it must affirmatively appear upon appeal, that this discretion has been abused to the injury of the complaining party, in order to avail the latter in securing a reversal. Walker v. State, 136 Ind. 663, 36 N.E. 356; Reinhold v. State, 130 Ind. 467, 30 N.E. 306. Under the facts, we cannot affirm that such abuse of discretion upon the part of the lower court in overruling the motion for a change appears, and therefore there is no available error upon the court's ruling in this respect.

Appellant sought to abate the action against him upon the grounds, alleged in his plea of abatement, that such a state of mind existed upon the part of each of the grand jurors who returned the indictment in the cause as incapacitated each of them from acting in the matter impartially and without prejudice to his substantial rights. As an excuse for not interposing this objection to the grand jurors by challenge before they were sworn as provided in section 1725, Burns' R. S. 1894 (1656, R. S. 1881), it appears in substance, by the averments of the plea, that at the time the grand jury was in session, and at the time they found and returned the indictment, appellant was confined in the county jail upon the charge, and had no opportunity to challenge said grand jury, and, by being incarcerated in jail, he was prevented from so doing; that he was wholly without means to obtain counsel, and was dependent on his friends for assistance, and, at the time the indictment was returned, he was ignorant of the law which permitted him to exercise the right to challenge the said jury or any member thereof. Section 1725 (1656), supra, gives to any person held to answer to the charge of a felony or misdemeanor the right to challenge, before the grand jury is sworn, any member thereof, for certain enumerated causes, the seventh cause mentioned being substantially that such a state of mind exists upon the part of the jurors relative to the accused that they cannot act in his case impartially and without prejudice. A demurrer upon the part of the State was sustained to the plea, and this, it is contended, was error. Challenges to the poll of a grand jury under this section by a person held to answer a criminal charge must be made before the jury is sworn, and, in general, the objection is waived by a failure to assert it at the time prescribed by the statute. It is true that a party charged with a crime may at the time the grand jury is impaneled be placed under such circumstances as will excuse him from availing himself of his right to challenge or object to the jurors at that time, and for this reason be permitted thereafter to exercise it by way of a plea in abatement to the indictment. This is recognized by the decisions of this court. Mershon v. State, 51 Ind. 14; McClary v. State, 75 Ind. 260. The law, however, does not favor pleas in abatement, and no presumptions are indulged in their favor, but they are required to be certain, and must state every fact necessary to uphold their sufficiency. Mershon v. State, supra. Tested by this rule, and the insufficiency of the plea in controversy is apparent. It is not shown by any facts therein alleged that the defendant was in jail at the time the grand jury was sworn or impaneled, but it is averred that he was in jail at the time the grand jury was in session and when they found and returned the indictment. It might be true that appellant was in custody at the time the jury was in session and when the indictment was returned, and still he might have been on bail or had counsel when the grand jury was sworn, and had ample opportunity at that time to assert his right of challenge. There are no facts averred in the plea showing affirmatively that appellant either attempted in any way to avail himself of his right of challenge, or that he was prevented by any circumstances from doing so at the proper time. The court therefore properly sustained the demurrer to the plea in abatement.

The next insistence is that the count of the indictment upon which appellant was convicted discloses that the offense was committed in Fountain county, and consequently the original jurisdiction thereof was, under the law, lodged in the Fountain Circuit Court, and upon this ground it is contended that appellant's motion to quash this count should have been sustained. The learned counsel appearing in behalf of the State concede that, under the general rule, jurisdiction of the grand jury to return the indictment, and of the court to try the accused, is confined to the particular county wherein the crime was committed, but they claim that under the facts alleged and also as proven upon the trial, that jurisdiction over the alleged offense is...