Kurtz v. The State

• Decision Date: 21 February 1896
• Docket Number: 17,169
• Citation: 42 N.E. 1102,145 Ind. 119
• Parties: Kurtz v. The State
• Court: Indiana Supreme Court

42 N.E. 1102

145 Ind. 119

Kurtz v. The State

No. 17,169

Supreme Court of Indiana

February 21, 1896

Rehearing Denied May 18, 1896.

From the Vanderburgh Circuit Court.

Affirmed.

P. W Frey and W. W. Ireland, for appellant.

W. A Ketcham, Attorney-General, and J. W. Spencer, J. R. Brill, and F. E. Matson, for State.

OPINION

Howard, J.

The appellant was convicted of murder in the first degree, and sentenced to the State's prison for life.

It is admitted by the State, that appellant was greatly wronged by the deceased, both in his domestic relations and also in the abusive language used by the deceased and in the threats used by him against the life of the appellant.From a purely legal standpoint, however, there is abundant direct evidence which supports the verdict; and there was no element of self-defense.

The error insisted upon by the appellant is that the court overruled his motion to discharge one of the jurors from the panel trying the case, both for cause and peremptorily.

After the jury were sworn upon their voir dire, examined, accepted, and sworn to try the cause, and after the opening statements were made by the State and the defendant, and while the first witness was examined, Henry Edmonds, one of the jurors, left the box and approached the judge, to whom he said, that since listening to the opening statement of the prosecuting attorney he thought he might have talked about the case.The juror then returned to his seat, and the court, in the presence of the jury and the parties, made known the communication which had been made.

Soon after, the appellant asked that court be adjourned until the next morning, in order that a motion might be made regarding the communication received from the juror.The next morning, on the opening of court, the jury and the parties being present, the defendant moved the court for an examination of said juror as to his competency to sit in the case.To this motion the prosecuting attorney, for the State, objected, claiming that the court could not entertain the motion, because the proper motion was to set aside the submission of the cause to the jury, after which the jury might again be examined on their voir dire.The court, however, held that the motion to set aside the submission might be made afterwards, if an examination of the juror should show that this ought to be done.

The juror was thereupon examined by the parties, after which counsel for defendant challenged the juror for cause, which challenge was overruled by the court.The record next recites: "Now, here, the defendant, at the same time and place, challenges the said Edmonds peremptorily, the said defendant having exhausted, in the said cause, in the impaneling of said jury, only fifteen peremptory challenges, and moves the court to excuse said juror so peremptorily challenged by defendant, and put another juror in the box in his place, which motion the court now here denies and overrules, to which the defendant excepts."

The answers made to the examination of the juror show that he was competent; and hence there was no error in overruling the challenge for cause, even if it had been made before the impaneling of the jury.It did not appear that he had formed or expressed any opinion in the case; but only that, perhaps from an over-sensitive conscience, he was fearful, on hearing the prosecutor's statement, that he might have formed or expressed such opinion; which opinion, if any there was, the juror said, would readily yield to the evidence and would not prevent him from rendering a fair and impartial verdict.

Appellant insists that even if it were true that he had no right to challenge the juror for cause, he certainly had a right to challenge him peremptorily; that he had not exhausted the twenty peremptory challenges given him by the statute; that with or without fault, the juror had, on the original examination, conceded the fact that he had, or might have, expressed some opinion in the case, and...