Heyl v. State

• Decision Date: 25 February 1887
• Docket Number: 13,239
• Citation: 10 N.E. 916,109 Ind. 589
• Parties: Heyl v. The State
• Court: Indiana Supreme Court

10 N.E. 916

109 Ind. 589

Heyl v. The State

No. 13,239

Supreme Court of Indiana

February 25, 1887

From the Marion Criminal Court.

Judgment affirmed, with costs.

J. W Gordon, L. O. Bailey, M. Carey and T. J. Cogan, for appellant.

L. T Michener, Attorney General, and J. H. Gillett, for the State.

OPINION

Mitchell, J.

The appellant was tried upon an information, and found guilty of the charge of grand larceny. He was sentenced to a fine and five years imprisonment in the State's prison.

No regular panel of jurors having been drawn or returned for the term at which the trial took place, the bailiff, by the direction of the court, called from the by-standers, twelve qualified persons as jurors. The appellant objected to being tried by a jury thus selected.

The first point insisted upon is that the court erred in requiring him to submit his cause to a special jury.

That justice must use right means in attaining its ends, and that its ends when attained must be such as the law allows and approves, can not be denied.

The question is, did the court proceed in the organization of the jury in a manner which the law does not sanction?

Section 1396, R. S. 1881, reads as follows: "In all cases when the proper officers have failed or refused to draw and empanel a traverse jury, or where, for any other cause whatever, no traverse jury shall be present at any term of the court, it shall be lawful, and is hereby made the duty of the circuit court, if the business thereof require it, to order the sheriff to summon a jury from the by-standers or citizens of the county," etc.

Section 1790 provides that the trial jury used in civil cases shall act in criminal cases, and that the sheriff, in case a jury trial is demanded, shall call a jury in the manner prescribed by law, or as directed by the court.

Section 522 provides that "The court shall have the power, where the business thereof requires it, to order the empaneling of a special jury for the trial of any cause."

These sections of the statute leave no room to doubt the power of the court to empanel a special jury under the circumstances disclosed in the record.

The officers charged with the duty of drawing or selecting a jury may have neglected their duty. It may often happen that a panel regularly selected becomes disqualified. It can not be permitted that circumstances such as we have mentioned should deprive the court of the necessary machinery for the transaction of its business. Hence the statutes to which we have referred make provision for any such emergency.

No question is made but that the jurors empaneled possessed all the requisite statutory qualifications. Nor is there any claim that they did not, when empaneled, constitute "an impartial jury."

Having been selected and empaneled in a manner authorized by law, the constitutional rights of the appellant were not infringed. Pierce v. State, 67 Ind. 354; Evarts v. State, 48 Ind. 422; Winsett v. State, 57 Ind. 26.

The bill of exceptions states that no jury had been drawn for that term, so that even if it had been necessary, as is contended, that the record should affirmatively show the necessity for, or authority to call, a special jury, it does so appear. Without that, however, the regularity of the proceedings would have been presumed, in obedience to the maxim that "All acts are presumed to have been rightly and legally done."

In its seventh charge the court instructed the jury, in substance, that if they had a reasonable doubt as to any material fact going to the defence, or necessary to make the cause, the defendant was entitled to the benefit of such doubt.

As to what constituted a reasonable doubt, the jury were told, in substance, that not every possible or frivolous doubt that might be conjured up, was a reasonable doubt; but that if the evidence in the case failed to satisfy their minds of the truth of every material proposition necessary to establish the criminal liability of the defendant, with such certainty that a prudent man would feel safe in voluntarily acting in his own important affairs, there would in such a case be a reasonable doubt, and that in that event they must acquit the defendant.

The fifteenth instruction asked by the defendant, and given by the court, is as follows: "A reasonable doubt exists, whenever, as long as taking all the evidence in the case together, and fairly considering it, it does not so satisfy your minds of the truth of the proposition to be found, that a reasonable and prudent man would feel safe to act upon it in matters involving his own most important affairs and dearest interests, voluntarily and under circumstances in which he was under no compulsion to act at all."

The argument of the appellant is, that the instruction given by the court of its own motion, upon the subject of what constitutes a reasonable doubt, was erroneous, and that although the court at his request subsequently instructed the jury correctly, on the same subject, since the first charge was not withdrawn, the error was not cured by giving an inconsistent although correct instruction.

The rule that an erroneous instruction, unless it be plainly withdrawn, can not be corrected by giving an accurate but inconsistent instruction on the same subject, is founded in reason, and is not to be infringed. Of course, if the law governing a material proposition involved in a case, is put to the jury in one instruction one way, and in the same or another in such a way as to be inconsistent with and contradictory of the first, the result must be confusion in the...