Hitch v. State

• Decision Date: 21 October 1936
• Docket Number: 26680.
• Citation: 4 N.E.2d 184,210 Ind. 588
• Parties: HITCH v. STATE.
• Court: Indiana Supreme Court

4 N.E.2d 184

210 Ind. 588

HITCH v. STATE.

No. 26680.

Supreme Court of Indiana.

October 21, 1936

Falph Hitch was convicted of the embezzlement of public funds, and he appeals.

Affirmed.

Appeal from Criminal Court, Marion County; Earl R McFerren, Sp. judge.

Holmes & Holmes and Johnson & Zechiel, all of Indianapolis, for appellant.

Philip Lutz, Jr., Atty. Gen., and James D. Sturgis, Asst. Atty Gen., for the State.

FANSLER, Judge.

Appellant was convicted of the embezzlement of public funds. Three assigned errors are presented for decision.

Appellant filed a verified motion challenging the array of jurors upon two grounds: (1) That the selection of name was not made ‘ as nearly as may be, in equal numbers from each county commissioner's district,’ as provided by section 4-3304, Burns' Ann.St.1933, section 1267, Baldwin's Ind.St.1934; and (2) that the key to the jury box was not kept in the possession of the jury commissioner of opposite politics from the clerk, as provided in section 4-3305, Burns' Ann.St.1933, section 1272, Baldwin's Ind.St.1934. The verified motion does not allege facts describing the commissioners' districts, nor does it allege facts showing from what locality the prospective jurors were drawn. The burden was upon appellant to establish the allegations of his petition. Witnesses were called. A county commissioner testified that there were nine townships in the county; that the first commissioner's district was comprised of Warren, Lawrence, and Franklin townships; that the third district was comprised of Decatur, Wayne, and Pike townships. He testified that Perry and Center townships were in district 2, when he was interrupted, and afterwards, in answer to the question of whether Washington township was in that district, he said Washington township was in district 2. A deputy clerk, after some confusion and cross-examination, testified that there were four townships in district 1, one in district 2, and four in district 3. There is thus a conflict in the evidence. The record of the board of commissioners establishing the boundaries of the district is, of course, the best evidence upon the subject, but it was not offered in evidence. This court does not take judicial knowledge of such records. One of the jury commissioners testified that the names were taken in substantially equal numbers from each of the townships in the county. On this evidence, the court overruled the challenge to the array. If there were three townships in each commissioner's district, and the names were taken in substantially equal numbers from each...