Hawkins v. State
| Decision Date | 05 November 1941 |
| Docket Number | 27534. |
| Parties | HAWKINS v. STATE. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Appeal from Circuit Court, Floyd County; George C Kopp, judge.
Chas R. Turner, of New Albany, Grover Todd, of Jeffersonville, and Wilson Nichols, of Munfordville, Ky., for appellant.
George N. Beamer, Atty. Gen., James K. Northam, First Asst. Atty. Gen., Norman E. Duke, Deputy Atty. Gen., and Homer D. Smith, Pros. Atty., of Jeffersonville, for appellee.
Appellant was convicted of murder in the perpetration of a robbery and sentenced to be electrocuted. The errors assigned will be considered in the order presented by the briefs.
November 13, 1940, by agreement of the parties the case was set for trial one the 16th day of December thereafter and appellant's request for a special venire of 75 talesmen was granted. The trial began at 9 o'clock a. m. on the date set and the regular panel and the special venire of 75 were exhausted. During the day appellant's motion for a second special venire of 25 talesmen was granted, the jurors were drawn instanter and the sheriff directed to summon them for the following morning. At that time selection of the jury was continued but before the end of the day the special venire of 25 was exhausted. During the second day appellant by oral motion requested another special venire of 25 which motion was overruled and the court directed the sheriff to select the remaining talesmen from 'bystanders or citizens of the county,' as permitted by § 4-3308, Burns' 1933, § 1279 Baldwin's 1934, when for various reasons named in the statute 'no traverse jury shall be present.' Appellant exhausted his twenty peremptory challenges. The record does not show that after his motion for a special venire was overruled he made further objection to any 'bystander' talesman. How many of the members of the jury were from 'bystanders' does not appear. It is not charged that any of the persons so selected was not a competent juror. Nor is it made to appear that either party was denied the right to challenge any such talesman for any of the numerous causes provided in § 9-1504, Burns' 1933, § 2254, Baldwin's 1934.
The right to a special venire is not absolute but under the statute, § 4-3309, Burns' 1933, § 1271, Baldwin's 1934, rests in the discretion of the trial court. While neither Harlan v. State, 1921, 190 Ind. 322, 130 N.E. 413, nor Crickmore v. State, 1938, 213 Ind. 586, 12 N.E.2d 266, presents the same factual situation as this case we think the reasoning of these cases is applicable and that, no abuse of discretion appearing, the alleged error is not available to appellant.
He cites only two cases. The first, Hicks v. State, 1927, 199 Ind. 401, 156 N.E. 548, is not in point. The other, Silverman v. State, 1927, 199 Ind. 225, 156 N.E. 549, is distinguishable. The court therein recognized that the exercise of the power to call a special venire 'requires that the court act within the confines of a sound discretion' but held that the trial court determined the necessity for such venire by ordering the sheriff to summon a panel of thirty bystanders, five more than in the special venire requested, and that the necessity so found to exist did not warrant the trial judge in ordering their selection in a manner different from that prescribed in the statute. It also appears from the opinion that the motion and the order to the sheriff occurred several days before the day set for trial. In the case at bar the motion was made toward the end of the second of two days devoted to examination of talesmen. There may then have been in the jury box eleven jurors tentatively accepted. If so, the judge might reasonably have considered unnecessary a special venire of 25 to obtain one juror. Even if more than one was to be obtained we can not say from the record that the judge abused his discretion in denying the motion.
Misconduct of two jurors, William Rebison and George E. Judd, is charged. Robison's conduct was made the subject of a verified motion praying that the cause be withdrawn from the jury which was overruled. In his motion for a new trial appellant again raised the question as to Robison and for the first time as to Judd. In each case the misconduct alleged was that after he was accepted as a juror but before he had heard any evidence he expressed the opinion that appellant was guilty and should be given the death penalty. Affidavits and counter affidavits were filed and on the motion for a new trial evidence was heard including that of the two jurors each of whom denied the alleged misconduct. Appellant's attorneys exercised their right of cross-examination at this hearing. The trial court in overruling the motion for a new trial evidently decided there was no misconduct. We can not override his conclusion on a question of fact where there was conflicting evidence. McCallister v. State, 1940, 217 Ind. 65, 26 N.E.2d 391; Anderson v. State, 1933, 205 Ind. 607, 186 N.E. 316; Clodfelder v. State, 1926, 198 Ind. 277, 154 N.E. 725.
The record discloses that juror Judd was chosen from the second special venire. The names of the talesmen in that and the first special venire appear in the record. The names of the members of the regular panel do not appear. We are therefore unable to determine whether Robison was a member of the regular panel or a 'bystander.' Neither the affidavits nor the testimony on the motion for new trial disclose how he was selected. There was no testimony indicating that he made false answers when he was being questioned as to his qualifications to sit as a juror. If he was a 'bystander' we may assume from the state of the record that he was then acceptable, except as his right to serve was challenged generally by the motion for a special venire. Appellant has no valid complaint either as to manner of selection or the personnel of the jury.
One of the witnesses called by the state was Clementine Luttrell. After she had been examined and cross-examined she was dismissed. Later after other witnesses had been examined, appellant asked that she be recalled for further cross-examination and five questions were asked to each of which the state's objection was sustained. Appellant claims error in these rulings.
The first was clearly improper. She was asked if she had not been 'charged in the Clark Circuit Court as an accessory or accomplice in this charge of the murder of Edmund Davis.' The purpose of the question could only be to affect her credibility as her identity was not in question. As said in Petro v. State, 1933, 204 Ind. 401, 412, 184 N.E. 710, 713, 'the mere fact that a person has been arrested or a charge placed against him is no evidence of his guilt, and should not be the basis of a question to affect his credibility as a witness.'
The next three questions in varying language all ask the same thing in substance, whether she was promised immunity from a murder charge if she would testify in this case. After objection to one of them had been sustained the record shows the following:
The testimony referred to was as follows:
It had already been shown in the first cross-examination that while this trial was in progress she had pleaded guilty to a delinquency charge and had been sentenced to the Indiana Girls' School until she should be twenty years old. She was then seventeen.
The trial court has a broad discretion in determining the extent to which may be carried an examination for the purpose of affecting the credibility of a witness. Peats v. State, 1938, 213 Ind. 560, 575, 12 N.E.2d 270, 278. The same broad discretion exists as to the latitude of cross-examination. Foust v. State, 1928, 200 Ind. 76, 84, 161 N.E. 371, 374. Where the question calls for a repetition of an answer previously made by the same witness, it is not error to sustain objection to the question. Drury v. State, 1929, 200 Ind. 544, 547, 165 N.E. 321, 322; Griffin v. State, 1933, 124 Tex.Cr.R. 233, 61 S.W.2d 509. The trial court evidently had this rule in mind when he sustained the objection. We fail to find any abuse of discretion.
The fifth question was: 'Were you advised that you could refuse to testify in this case on the grounds that your evidence would tend to incriminate you?' Appellant does not indicate what answer he was expecting to this question. Whether 'yes' or 'no,' the answer would have tended to show only that she knew or did not know her constitutional privilege. This was personal and might be waived. Neither answer.
would have indicated any bias against appellant. We can see no harm in sustaining the objection.
Appellant tendered 28 instructions all of which were given except two. By these he sought to have the jury instructed that under the indictment for murder while perpetrating a robbery, he could be convicted of murder in the second degree, manslaughter, or involuntary manslaughter. This Court has held otherwise in Swain v. State, 1938, 214 Ind. 412, 15 N.E.2d 381; Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349 and Cole v. State, 1922, 192 Ind. 29, 134 N.E. 867. The reason is found in the fact that neither premeditation, intent to kill nor malice is a necessary element of the crime charged. This was long ago decided in Stocking v. State, 1855, 7 Ind. 326. The instructions...
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