Hicks v. State
| Decision Date | 26 May 1927 |
| Docket Number | No. 25223.,25223. |
| Citation | 199 Ind. 401,156 N.E. 548 |
| Court | Indiana Supreme Court |
| Parties | HICKS v. STATE. |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Cox, Judge.
Roosevelt Hicks was convicted of murder in the first degree, and he appeals. Affirmed.
Ira M. Holmes, of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
In the court below appellant was indicted, tried, and convicted by a jury of the crime of murder in the first degree and sentenced to suffer death. His motion for a new trial was overruled, and this ruling is assigned as error. The only causes relied on for a new trial may be combined, and, this done, the question presented is: Did the court commit reversible error in requiring appellant, over his objection and exception, to first examine the jury on its voir dire?
[1] As we understand appellant, he takes the position that the law will regard as prejudicial any affirmative burden the defendant is required to assume in a criminal case. The Constitution of this state, article 1, § 13, known as the Bill of Rights, provides that: “In all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury. ***” From such guarantee it no doubt follows that the accused must be given every reasonable opportunity to procure a fair and impartial jury. He was charged with a capital offense and, by statute, given the right to challenge peremptorily 20 jurors. Section 2255, Burns' 1926. The state is also given the same number of peremptory challenges. Section 2256, Burns' 1926.
[2] We have no statute, as do Missouri and New York, nor for aught appearing is there any rule of court fixing the order in which these challenges shall be exercised, or which of the parties to the action shall first proceed with such void dire examination. But appellant insists that the well established and recognized practice in civil cases is that the party having the burden of the issue has the burden of first passing the jury, or to examine the jury first on its voir dire, although there is no provision in the Civil Code requiring it. Hence, it is claimed that the rule of practice in civil cases must be applied in criminal prosecutions, citing section 2406, Burns' 1926, wherein it is provided that:
“In all criminal cases where no special provision has been made in this act, the rules of pleading and practice in civil actions shall govern, so far as applicable.”
Our answer to this contention is that this provision of the Criminal Code evidently refers to the rules of pleading and practice declared by the Civil Code, and, since there is no provision in the Civil Code on this subject, reference thereto will not supply the omission in the Criminal Code to provide which of the parties shall first pass the jury.
In this connection our attention is directed to the case of Jones v. State, 2 Blackf. 475, 478, which seems to be the only case in this state where the question here presented has been before this court. In that case it was said:
“If this were a new question and we had it to settle, we should say that the state ought first to make her challenges; but as all the English authorities establish a different doctrine and no American cases have been seen by us to authorize a different practice, we are bound for the present to sanction what the circuit court has done.”
This rule, reluctantly announced 96 years ago, has not, until now, been challenged in this court, nor does it appear to have received legislative attention. But since the decision in the Jones Case, courts of last resort in a number of states have spoken upon this question. After carefully reading the opinions of those courts, we have drawn the conclusion that while there is some conflict, yet in the absence of a statute or rule of court to the contrary, the weight of authority leaves the order of challenging petit jurors to the sound judicial discretion of the judge trying the cause, and that such discretion will not be interfered with unless it is clearly made to appear that it has been abused. Pointer v. United States, 151 U. S. 396, 14 S. Ct. 410, 38 L. Ed. 208;Turpin v. State, 55 Md. 462;State v. Pike, 49 N. H. 399, 6 Am. Rep. 533;State v. Flint, 60 Vt. 304, 14 A. 178;Johnson v. State, 88 Neb. 565, 130 N. W. 282, Ann. Cas. 1912B, 965;Santry v. State, 67 Wis. 65, 30 N. W. 226;State v. Pierce, 8 Iowa, 231;State v. Shelledy, 8 Iowa, 477;Schufflin v. State, 20 Ohio St. 233;State v. Boatwright, 10 Rich. (S. C.) 407;Nobles v. State, 127 Ga. 212, 56 S....
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