Laine v. State, No. 472A174

• Docket Nº: No. 472A174
• Citation: 289 N.E.2d 141, 33 Ind.Dec. 502, 154 Ind.App. 81
• Case Date: November 16, 1972
• Court: Court of Appeals of Indiana

Page 141

289 N.E.2d 141 154 Ind.App. 81 Jerry LAINE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 472A174. Court of Appeals of Indiana, Third District. Nov. 16, 1972.

[154 Ind.App. 82]

Page 142

Carl M. Franceschini, LaPorte, Jack Murray, Knox, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., David J. Wallsmith, Pros. Atty., Knox, for appellee.

SHARP, Judge.

The Defendant-Appellant, Jerry Laine, appealed from a conviction of the offense of accessory after the fact to theft. Appellant was charged by way of indictment returned by the Grand Jury of Starke County, Indiana, and, upon conviction, was sentenced to the State Reformatory for a term of from one to ten years. The jury returned its verdict on October 26, 1971 and the Defendant-Appellant filed his motion to correct errors with certain affidavits of jurors attached on December 9, 1971. Thereafter on December 28, 1971 the State filed a response to the motion to correct errors with supporting affidavits. On January 14, 1972 the trial court overruled the Defendant-Appellant's motion to correct errors, which had been amended. A supplemental motion to correct errors was filed on January 17, 1972. Argument was heard thereon on February 14, 1972 and the trial court overruled the same on February 23, 1972.

The sole question which we must determine here relates to events which occurred during the time that the jury was deliberating and before it returned its verdict. The jury commenced its deliberations at approximately 2:40 P.M. on October 28, 1971 and the events here in question occurred at approximately 11:15 P.M.

The Defendant Appellant has attached to his motion to correct errors filed on December 9, 1971 the affidavit of four members of the jury in this case. This court renews, with equal vigor, the condemnation of this practice which is found in Jessop v. Werner Transportation Co., Ind.App., 261 N.E.2d 598 (1970), Nowling v. Akers, Ind.App., 274 N.E.2d 546 (1971) and more [154 Ind.App. 83] recently in Lindsey v. State, Ind.App., 282 N.E.2d 854 (1972). Our Supreme Court also agrees. See Wilson v. State, 253 Ind. 585, 255 N.E.2d 817 (1970). If the contentions of the Appellant were based solely upon the affidavits of the jurors just referred to we would unhesitatingly affirm the conviction in this case.

However, there is more. On December 20, 1971 the Prosecuting Attorney of Starke County filed his response to the Defendant-Appellant's motion to correct errors and attached to it the affidavit of Matthew Frayne. The pertinent part of that affidavit is as follows:

'1. That he is presently and was, on the 28th day of October, 1971, the Bailiff of the Starke Circuit Court.

2. That on the above date at approximately 11:15 P.M. C.S.T., he observed one Earl Wilson, known to be the foreman of the jury in session in the above captioned cause, leave the jury room and

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enter into the hallway. Whereupon, Mr. Wilson requested Mr. Frayne to come into the jury room which this affiant did.

3. That upon entering the jury room he was informed by Mr. Wilson that the jury had some questions as to the form of verdicts in the above captioned cause. Whereupon this affiant advised the jury that, if they had questions, he would notify the court and that the court would read all of the instructions to them again. That Mr. Wilson advised that that would be unnecessary and that they only had questions regarding the forms of verdicts at that time. Whereupon Mr. Wilson handed four forms of verdict to this affiant and asked...