Johnston v. State

Decision Date23 December 1958
Docket NumberNo. 29677,29677
Citation155 N.E.2d 129,239 Ind. 77
PartiesThomas Harry JOHNSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Robert E. Clemence, Covington, Keith E. Barnhart, Attica, Edward L. McCabe, Williamsport, for appellant.

Edwin K. Steers, Atty. Gen., Merl. M. Wall, Asst. Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was convicted of murder in the first degree under Acts 1941, ch. 148, § 1, p. 447, being § 10-3401, Burns' 1956 Replacement, tried by jury found guilty as charged and sentenced to death by electrocution.

The sole question here presented concerns the fact that one juror, Alice Leoma Harvey, failed on the voir dire examination to disclose that she was a second cousin of the victim named in the indictment.

The undisputed evidence is that neither appellant nor his attorney knew of such relationship until 'about a week before he filed a motion for a new trial.' There was no consent by the parties that this juror could serve.

Appellant asserts (1) that regardless of the juror's knowledge of such relationship under the factual situation here she was disqualified, and he was entitled to a new trial because of such disqualification, and (2) that her failure to disclose her relationship to the victim constituted misconduct which is cause for a new trial under Acts 1905, ch. 169, § 282, p. 584, being § 9-1903, Burns' 1956 Replacement.

First: 'The construction of all statutes of this state shall be by the following rules, unless such construction be plainly repugnant to the intent of the legislature or of the context of the same statute:

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'Eleventh. When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, by the civil law rules, or within the degree of second cousin, inclusive, shall be deemed to disqualify such person from acting, except by consent of parties.' 2 R.S.1852, ch. 17, § 1, p. 339, being § 1-201, Burns' 1946 Replacement.

It is asserted here that because appellant did not ask this juror specifically whether or not she was related to the victim the question was waived. Failure to challenge, without notice of the incompetency, does not constitute a waiver under this section of the statute.

On the voir dire examination, Mrs. Harvey was asked by the prosecuting attorney:

'Q. Did you know the other person involved in this incident, Vida Mae Foxworthy? A. No sir.

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'Q. Do you know at this time, Mrs. Harvey, and reason why you could not sit on this jury, if called upon to do so, and render a fair and impartial verdict from the facts that were given you? A. There is none I know of. [A similar question was also asked by counsel for defendant-appellant, with like answer.]

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'Q. Mrs. Harvey, have you in the past read anything about this case? A. To my knowledge, when this case first--when this first happened, I recall reading an account in the paper.

'Q. You just read it as a passing news item? A. Yes.'

Mrs. Harvey was questioned by appellant's attorney as follows:

'Q. You did not know the victim in this case? A. No.

'Q. Did you by any chance know the family? A. No sir.

'Q. And you are not personally acquainted or by acquaintance familiar with any of the persons in this action? A. No.'

Where, as here, the Legislature has, within the limits of their power, declared who shall not be competent as jurors, it is binding upon the courts. Block v. State, 1885, 100 Ind. 357, 361, 362.

In Hudspeth v. Herston, 1878, 64 Ind. 133, 134, the trial court, before the jury was sworn to decide the case, asked the following question:

'Are either of you related, by blood or marriage, to either of the parties to this suit?'

One juror--Lewis A. Baker--answered in the negative. It developed after the jury had returned a verdict, that Baker was related to the appellee within the degree prohibited by statute. 1 Baker, in an affidavit, stated that when he was examined on voir dire, he did not know that he was related to the appellee but such fact had since come to his knowledge. At pages 135, 136 of 64 Ind. this court said:

'It can not be said, we think, under the facts shown by the affidavits in this case, that the appellants consented to the trial of this action by a cousin of the appellee, when they did not know of such relationship until after the trial. Nor can it be correctly said, that the appellants have waived the objection to the juror, on account of his relationship to the appellee, because they did not, personally or by their counsel, examine the juror on his oath as to his relationship to the appellee. We are clearly of the opinion, that, as to this matter, the appellants had the right to rely implicitly, without any further examination, upon the answer of the juror to the question propounded to him by the court.

'It seems to us, also, that the fact alleged by the juror in his affidavit, that, at the time of the trial, he was wholly ignorant of any relationship between him and the appellee, can have no possible bearing on the correct decision of the question now under consideration. The appellants had a clear legal right to have their case tried by a disinterested jury. Under the law, the juror, Baker, was not a competent juror; but, without fault or negligence on the part of the appellants, and in ignorance of his incompetency, they accepted him as a juror. As soon as they were informed of the juror's incompetency, the appellants moved the court, on that ground, for a new trial of this cause, but the motion was overruled.'

It seems to us that this is exactly the situation in the case at bar and nothing has been shown by the State which would cause us to change the rule so ably stated in Hudspeth v. Herston, supra.

We recognize that the Herston case was a civil action, but, if the rule therein stated applies when only property rights are involved, certainly it should apply with intensified force when a man's life is at stake.

In our opinion this juror was wholly disqualified under the statute 1 to sit as a member of the jury which tried appellant.

Second: The evidence at the hearing on the motion for a new trial discloses that the juror, Alice Leoma Harvey, was present a short time prior to the trial of appellant in the home of her grandmother, Jane Riley Barker, who was an aunt of the victim, Vida Mae Foxworthy, when Mrs. Barker's obituary was prepared. The person who wrote the obituary testified, in pertinent part, as follows:

'Q. I believe you stated that in making preparation of that obituary, that the relation of the family was discussed? A. Well, yes, when you write on obituary----

'Q. Yes? A. Yes, we discussed that.

'Q. And I believe you stated your mother, Mrs. Clark and Mrs. Harvey and yourself were present? A. That is right.

'Q. And in the naming of this here relationship of Mrs. Jane Barker, was any mention made of Vida Mae Foxworthy? A. Yes, we talkied and wondered if she would be at the funeral. And we talked about everybody in a social visit.

'Q. And that was in the presence of your mother, Mrs. Clark, Mrs. Harvey and yourself? A. Yes, sir, just a family discussion, that is right.

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'Q. But as to the best of your recollection at the time Alice Harvey was in the kitchen in your presence, the name of Vida Mae Foxworthy was mentioned? A. Yes, sir, it was. (Re-direct examination by the court.)

'A. Just where was the conversation at that time? Can you relate it in substance, Mrs. Wyde? A. Well, we were talking and wondering----

'Q. Who? A. Mrs. Clark, Mrs. Harvey and my mother were talking, others were going in and out. We were talking about this obituary and wondered if Wayne Babb had got word. Wayne was a cousin of mine. He lived at a distance. And we wondered if Vida would be to the funeral. You know how a family discussion is, if they would be present. It just lasted a few minutes.'

This witness further testified that she and the juror-Harvey's-mother, visited appellants trial; that she spoke to the juror Mrs. Harvey, and saw her 'in the jury box.' Alice Leoma Harvey, the juror, testified at the hearing, in part, as follows:

'Q. And when you read the matter of the death of Vida Mae Foxworthy in the newspaper, that did not bring to mind anything of a relationship? A. No, sir, to me it was just another news item.

'Q. And did you or did you not discuss the matter of the news item with your parents? A. I did not.

'Q. Did you at any time inform them you was a member of this jury? A. I did.

'Q. At what time in relation to the time the trial was goint on? A. After the trial started. It was when they were selecting jury; when I was called to be selected, because I left baby with my mother the day I come up.

'Q. That is just when they were selecting the jury? A. Yes, sir.

'Q. Do you know whether or not your mother was here in the court room during the trial? A. She was not.

'On cross-examination, in answer to questions by Keith E. Barnhart, attorney for defendant, the witness testified as follows:

'Q. You did inform your mother you were sitting as a juror on this case? A. Yes, I did.

'Q. And in fact you left your child there and explained to her why you were leaving the child? A. The first day is the only time.

'Q. That was before the trial started? A. Yes, that was first day I was up here.

'Q. And you did not discuss this case with anyone during the trial? A. No, sir I did not.'

In Block v. State, supra, 1885, 100 Ind. 357, the judgment was reversed because one of the jurors was incompetent and this fact did not come to the knowledge of the appellant until after the trial.

In Rhodes v. State, 1891, 128 Ind. 189, 27 N.E. 866, 25 Am.St.Rep. 429, after the trial, one of the jurors made affidavit that his eyesight was so defective that he could not distinguish one of the witnesses from another, or see the face of the defendant. In reversing the judgment, this court, 128...

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