Lewis v. The State

• Decision Date: 05 April 1894
• Docket Number: 17,142
• Parties: Lewis v. The State
• Court: Indiana Supreme Court

36 N.E. 1110

137 Ind. 344

Lewis v. The State

No. 17,142

Supreme Court of Indiana

April 5, 1894

From the Fayette Circuit Court.

Judgment reversed, with instructions to grant a new trial.

G. C Florea and L. L. Broaddus, for appellant.

A. G Smith, Attorney-General, F. W. Cady and D. L. Cady, for State.

OPINION

Dailey, J.

At the March term, 1893, of the Fayette Circuit Court, the appellant, John Lewis, was indicted jointly with William Calvin, Morton Dixon and Peter Crawley, for shooting, in the night time, one Walter S. Jewiss, with intent to kill and murder him. The appellant had a separate trial by jury, was convicted and sentenced to be confined in the State prison for a period of two years and to pay a fine of one cent. He appeals to this court, and assigns but one error--the overruling of his motion for a new trial. The appellee, by her prosecuting attorney, joins in error.

Five reasons are assigned by appellant for a new trial. The first three are as follows:

"1st. Because the verdict of the jury is contrary to law.

2d. Because the verdict of the jury is not sustained by sufficient evidence.

3d. Because the verdict of the jury is contrary to the evidence."

As to these specifications appellant admits that he is confronted by the rule that this court will not reverse a cause on the mere weight of the evidence, if there is evidence tending to support the verdict of the jury as to all the material facts. He does not question the record showing that the injured party testified that the appellant was present aiding and abetting one Haumesser in the felonious assault, and this alone puts in the record some evidence to sustain the verdict and brings him within the rule. But counsel complain that this is a harsh judicial rule. This is but a court of error, has nothing of the case before it except the record, in which the words of one witness mean just the same as the words of another witness.

The court and jury, in the court below, saw the witnesses, heard their voices, observed their manner of testifying, noted the degree of intelligence they possessed, and their fairness or bias for or against the accused, and many signs of truth or falsehood which can never appear in the record, and the decision comes to us with so many presumptions in its favor that it must clearly appear that substantial justice has not been done, or the ruling should be affirmed.

The bill of exceptions, which is in the record, contains the evidence in the cause, and, besides the testimony of the injured party tending to establish all the material facts necessary to a conviction, there is evidence going to show previous threats on that night, by appellant against the prosecuting witness; that appellant was in search of him shortly before the commission of the act complained of, and was pursuing Jewiss while the latter was on his way home, when the shots were fired. There is evidence from which it could be fairly inferred that he and his associates on that occasion were engaged in the felonious assault, agreeably to a common design and for a common purpose, viz., to take the life of the person assailed.

To use the language of this court in Siebert v. State, 95 Ind. 471 (479): "There is no clear defect, no link gone or too weak in the chain of facts which tend to establish the appellant's guilt of the felony, wherewith he was charged."

In Cox v. State, 49 Ind. 568 (572), the court said: "The jury found the verdict upon the evidence, and the court has sanctioned it by its judgment; and, though the evidence does not completely satisfy us, we can find no error in the law, and know of no judicial rule by which we can reverse the judgment pronounced below."

This doctrine is recognized in Siebert v. State, supra; Kelly v. State, 64 Ind. 326; Christy v. Holmes, 57 Ind. 314, and in many other cases.

The fourth reason for a new trial is as follows: "Because one of the jurors in said cause, viz., Joel Foster was guilty of misconduct in this, to wit: The said juror on his voir dire examination, in answer to questions touching his competency to sit as a juror in said cause, propounded by the defendant, answered, 'that he had formed or expressed no opinion on the merits of said cause,' which statement is now fully shown by the statement of Kate Johnston, the stenographer in said cause, filed herewith, made a part hereof and marked Exhibit A; that in fact said juror had formed and expressed an opinion on the merits of said cause, and was prejudiced and biased against the defendant, as shown by the affidavit of Anna Eisenhut, filed herewith, made a part hereof, and marked 'Exhibit B'; that defendant did not know that said juror had so formed and expressed such opinion until after the close of the trial, and could not have discovered the same by reasonable diligence; that he and his counsel made all effort in their power to ascertain whether the jurors in said court were biased or prejudiced against him, and that he was misled and surprised by the answers of said juror, Joel Foster, and would not have accepted him as a juror in said cause had he known that he had formed and expressed an opinion, as shown by the affidavit of Anna Eisenhut."

In support of the above charge of misconduct, is the following affidavit:

"Comes now the undersigned, Anna Eisenhut, who, being duly sworn, says: That she is a resident freeholder of the city of Connersville, Fayette county, Indiana, years of age, and resides on South Grand avenue, in said city; that she is acquainted with one Joel Foster, who sat as a juror in the trial of the cause of the State of Indiana v. John Lewis, in the Fayette Circuit Court at the May term thereof, 1893; that two or three days before said cause was called for trial and said trial commenced in said court, she had a conversation with said Joel Foster in regard thereto; that said conversation took place in the street in front of affiant's residence in said city of Connersville; that said conversation was, in substance, as follows:

"Affiant understood said Foster to make a complaint of some matter the exact nature of which she did not understand. Affiant said to Joel Foster, 'what is the matter?' Said Foster replied: 'I have been summoned on the jury to try those scalawags that waylaid Sandy Jewiss (meaning Walter S. Jewiss, the prosecuting witness in said cause); they ought all to go up for fifty years.' Affiant then said to Foster: 'You would not be hard on them, Mr. Foster, would you?' to which Foster replied: 'Yes, they ought to go up for fifty years;' that said statements and conversation were so had with affiant by said Joel Foster of and concerning the persons then charged and indicted with assault and battery on Walter S. Jewiss, with intent to kill the said Jewiss, the names of whom affiant did not then know, but whose names she has since learned are John Lewis, William Colvin, Mort Dixon and Peter Crawley. And further affiant saith not.

Anna Eisenhut."

To this affidavit the proper jurat was attached.

In reply to the above, the State filed the following counter affidavit of said Foster:

"Joel Foster, who being duly sworn upon his oath, deposes and says: That he was one of the regular empaneled jurors who sat upon the trial of said cause; said affiant further states that when he was being examined touching his qualifications as a juror he stated that he had formed or expressed an opinion, and said juror said that he had, but upon further examination said juror states that he was asked by the Honorable Ferdinand S. Swift, the judge who sat upon the bench in the trial of said cause, 'that notwithstanding any opinion you may have formed or expressed, could you try the cause according to the law and evidence, and render a fair and impartial verdict?' To which question said juror replied 'that he could,' and said juror further stated that no opinion that he had formed had any impression upon his mind during the trial of said cause. Said affiant further states that he is acquainted with Anna Eisenhut, the affiant in the affidavit in support of a new trial in the above entitled cause, and said juror states that he never expressed to said Eisenhut any opinion concerning the guilt or innocence of the defendant, John Lewis, prior to the trial of said John Lewis; and that at the time said Eisenhut states that she had the conversation with this affiant, he did not know the defendant, John Lewis, or any of his co-defendants, or Walter Jewiss, and did not know that any of said parties were in the county jail, or charged with any crime at all. And further affiant saith not."

This affidavit is signed by the juror, Foster, and the jurat of the officer administering the oath is attached thereto.

Kate Johnston, the official reporter, in substance, states that she was not present during the entire examination of the jury; that she took no notes of the testimony touching the qualifications of Joel Foster; that she does not know him, and has no recollection of his having been upon the jury; that it has been her practice as a stenographer, upon the examination of jurors, not to take notes touching their qualifications unless the juror states that he has formed and expressed an opinion, when, if present, she makes a note of the fact.

It is conceded by counsel for the appellant that the retention of such juror was discretionary with the court, under ...