Klink v. State

• Decision Date: 29 January 1932
• Docket Number: 25,649
• Parties: Klink v. State of Indiana
• Court: Indiana Supreme Court

179 N.E. 549

203 Ind. 647

Klink v. State of Indiana

No. 25,649

Supreme Court of Indiana

January 29, 1932

Rehearing denied July 1, 1932.

1. APPEALS---Specifications in Motion for New Trial---Verdict Contrary to Law and Insufficiency of Evidence---Appellant's Brief---Failure to Point out Defects in Specifications.---Where appellant's brief did not point out in what respect the verdict was contrary to law, and did not point out any defect or omission in the evidence on any material point within the issues, no question as to the sufficiency of the evidence, or that the verdict is contrary to law, is presented on appeal. p. 650.

2. APPEALS---Appellant's Brief---Waiver of Specifications of Error---By Failure to Support Propositions by Argument or Authorities.---Where appellant's specifications of error are not supported by argument or by the citation of authorities in his brief, such specifications are waived and will not be considered on appeal. p. 650.

3. JURY---Challenges for Cause in Criminal Cases---Not Limited to Statutory Grounds.---While the statute (2257 Burns 1926) professes to give all the grounds of challenge for cause in criminal cases, the constitutional guaranty of an impartial jury will not be allowed to be destroyed by the legislature's omission of grounds that clearly render a juror incompetent. p. 651.

4. JURY---Challenge for Cause---Relation of Attorney and Client between Attorney in Trial and Prospective Juror---Must Exist at Time of Trial.---In order that a challenge for cause may be sustained on the ground of bias implied from the relation of attorney and client between an attorney in the case and a prospective juror, it is necessary that such relation exist at the time of the trial. p. 652.

5. JURY---Challenge for Cause---Relation of Attorney and Client---Attorney Executor of Estate in Which Prospective Juror and Wife are Interested.---The fact that a prosecuting attorney is executor of an estate of which a prospective juror and his wife are beneficiaries does not create a conclusive presumption of implied bias of the juror but the question is one for the trial court. p. 652.

6. JURY---Competency of Prospective Juror---Questioned by the Judge---Competency Left to Discretion of Court Unless Abuse is Shown.---Where a prospective juror has been questioned by the trial judge, and the juror has stated unequivocally that he could render a fair verdict, the competency of the juror is left in a measure to the sound discretion of the judge and his decision will not be reversed on appeal except for abuse of his discretion. p. 652.

7. JURY---Refusing Challenge of Prospective Juror for Cause---Juror Beneficiary of Estate Which Assistant Prosecuting Attorney is Administering.---Refusing challenge of prospective juror because he was beneficiary of an estate which an assistant prosecuting attorney was administering as executor and also as his own attorney, was not an abuse of the trial court's discretion so as to require the reversal of the judgment in a criminal case. p. 652.

8. APPEALS---Overruling Challenge of Juror for Cause---Proper Cause for New Trial---Not Proper Assignment of Error on Appeal.---That the trial court erred in overruling a challenge of a prospective juror is properly assignable as cause for a new trial, and is not a proper assignment of error on appeal. p. 653.

9. CRIMINAL LAW---Special Judge---Manner of Selecting---Withdrawal of List Prepared by Regular Judge.---The statute regulating the manner of selecting a special judge in a criminal case (2236 of Burns 1926) does not prohibit the withdrawal of the list of names of persons proposed by the regular judge at any time before one side has struck off a name; in fact, it is the duty of the regular judge to submit a list of persons who are competent at the time of striking. p. 654.

10. CRIMINAL LAW---Aiding in Commission of Felony---Counseling Encouraging and Commanding Notary to Attach False Certificate to Affidavit---Evidence Sufficient to Sustain Conviction.---In a prosecution for aiding in the commission of a felony by counseling, encouraging and commanding a notary public to falsely certify to swearing a certain person to an affidavit, the evidence was held sufficient to sustain a conviction. p. 654.

From Marion Criminal Court; Thomas E. Garvin, Special Judge.

Earl Klink was convicted of aiding in the commission of a felony by counseling and commanding a notary public to attach a false certificate to an affidavit, and he appealed.

Affirmed.

M. L. Clawson and W. D. Hardy, for appellant.

James M. Ogden, Attorney-General, and E. Burke Walker, Deputy Attorney-General, for the State.

OPINION

Treanor, J.

The appellant was indicted and convicted under §§ 2028 and 2598, Burns Ann. Ind. St. 1926, Acts 1905, ch. 169, p. 584, which sections are as follows:

§ 2028: "Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire, command or otherwise procure a felony to be committed may be charged by indictment or affidavit, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted; and, upon such conviction, he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal."

§ 2598: "Whoever, being a notary public or other officer or person authorized to administer oaths, certifies that any person was sworn or affirmed before him to any affidavit or other instrument or writing, when, in fact, such person was not so sworn or affirmed, shall, on conviction, be imprisoned in the state prison not less than one year nor more than three years, and fined not less than ten dollars nor more than one thousand dollars."

The indictment charged, in substance, that the appellant did "unlawfully and feloniously counsel, encourage, hire and command" a notary public to "unlawfully, feloniously and falsely certify as said notary public that William Rogers was sworn by her to a certain affidavit by affixing thereto her certificate as appears thereon," when in fact the said William Rogers was not so sworn.

Appellant assigns as error that:

1. The court erred in overruling appellant's motion for a new trial.

2. The court erred in overruling appellant's challenge for cause to juror, Albert T. Shaw.

3. The court erred in overruling appellant's objection to the selection of special judges.

The causes relied upon by appellant in his motion for a new trial are:

1. The finding of the jury is contrary to law.

2. The finding of the jury is not sustained by sufficient evidence.

3. That the court erred in overruling defendant's challenge for cause to juror, Albert T. Shaw.

Counsel for appellant insists that the appellant suffered substantial injury by reason of certain alleged errors of the trial court, which were not properly saved for this appeal; and urges that this Court go to the record for these errors "upon the theory that appellant was not adequately represented" during the trial. Counsel concedes that "under the strict rules of procedure the appellant is entitled only to appeal upon matters which did arise under his motion for a new trial." We shall first consider the matters presented by the motion for a new trial.

Of the three causes for a new trial which were saved by appellant's trial attorneys the first two are waived. The appeal brief does not point out in what respect the verdict of the jury was contrary to law and does not point out "any defect or omission in the evidence on any material point within the issues," (Appellee's brief, p. 4; Ewbank's Appellate Procedure, §§ 184, 188 [2nd Ed.]; Barker v. State, 188 Ind. 263, 120 N.E. 593), and neither specification of error is supported by argument or by citation of authorities. (Hoover v. Weesner, 147 Ind. 510, 45 N.E. 650, 46 N.E. 905; Hamilton v. Hanneman, 20 Ind.App. 16, 50 N.E. 43.) We assume that appeal counsel intended to waive these two grounds for a new trial.

The third ground of the motion for a new trial is that the court erred in overruling appellant's challenges for cause to Juror Albert T. Shaw. The appeal brief does not contain the voir dire examination of Juror Shaw, nor a condensed recital of the same. (Cl. 5, Rule 22, Supreme Court Rules.) The argument contains sufficient information to apprise the Court of the substance of the objections to Shaw and the special bill of exceptions contains the full voir dire examination.

It appears from the special bill of exceptions that Shaw was objected to as a juror to try the cause "for the reason that the said Albert T. Shaw was a client of Emsley W Johnson, a Special Deputy Prosecuting Attorney for the State in the said cause, and for the further reason that the said Emsley W. Johnson was executor of an estate of which the Juror, Albert T. Shaw, and the Juror's wife, were the beneficiaries." The voir dire examination of Shaw discloses that the deputy prosecuting attorney was, at the time of the trial, the executor of the estate of the mother-in-law of Shaw and also was acting as attorney for himself as such executor. The facts respecting the relations of Juror Shaw and the deputy prosecutor do not constitute one...