Mack v. State
| Decision Date | 18 March 1932 |
| Docket Number | 25,879 |
| Citation | 180 N.E. 279,203 Ind. 355 |
| Parties | Mack v. State of Indiana. [*] |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Withdrawal of Plea of Not Guilty---In Sound Discretion of Trial Court---Review on Appeal.---Although, in a proper case, a trial court may permit an accused to withdraw a plea of not guilty and interpose a plea in abatement or a motion to quash the indictment, the granting or denial of a motion to that effect is within the sound discretion of the court, and the inquiry on appeal must be as to whether the court abused that discretion. p. 365.
2. CRIMINAL LAW---Withdrawal of Plea of not Guilty---Review of Court's Ruling on Appeal---Matters Taken into Consideration.---In passing on the trial court's denial of a motion to be allowed to withdraw a plea of not guilty and to file a plea in abatement and a motion to quash the indictment, the Supreme Court may take into consideration the delay already had at the time the motion was filed, the cause shown for asking such relief, and the further question as to whether appellant's substantial rights were prejudiced by the court's ruling. p. 365.
3. CRIMINAL LAW---Court's Denial of Motion to Withdraw Plea of not Guilty---Not Abuse of Discretion.---The trial court's denial of a motion to be allowed to withdraw a plea of not guilty and to file a plea in abatement and a motion to quash the indictment was not an abuse of its discretion in the specific case. p. 365.
4. CRIMINAL LAW---Court's Denial of Motion to Withdraw Plea of not Guilty---Review on Appeal---Absence of Showing of Facts Presented to Trial Court---Presumption in Favor of Trial Court's Ruling not Overcome.---Where the record on appeal does not show what facts were presented to the trial in support of appellant's motion to be permitted to withdraw his plea of not guilty and to file a plea in abatement and a motion to quash the indictment, the presumption in favor of the court's ruling was not overcome. p. 365.
5. GRAND JURY---Challenge of Grand Jury after Indictment---Not Authorized by Statute---But Permitted in Proper Case.---There is not statute providing for the challenge of a grand jury by a defendant called to plead to an indictment, but such practice is allowed and approved in a proper case. p. 366.
6. GRAND JURY---Challenge of Individual Juror---After Indictment not Authorized.---While one called on to plead to an indictment may challenge a grand jury on the ground that one of its members did not possess the statutory qualifications he cannot, after indictment, challenge an individual juror for prejudice against him. p. 366.
7. INDICTMENT AND AFFIDAVIT---Questions Raised by Motion to Quash.---A motion to quash an indictment reaches only matters on the face of the indictment, and cannot question the validity of the indictment because of irregularities in the selection, impaneling and swearing of the grand jury. p. 366.
8. INDICTMENT AND AFFIDAVIT---Indictment Returned into open Court---Conclusive Evidence of the Regularity of the Finding---Inquiry into Evidence on which it was Based Not Permitted.---When an indictment, duly endorsed by the foreman, has been returned into open court by a grand jury it is conclusive evidence of the regularity of the finding and it is not competent to inquire into the amount or kind of evidence on which the jury acted. p. 366.
9. CONSTITUTIONAL LAW---Statute making Death Penalty Mandatory---Not Unconstitutional.---The statute making the death penalty for killing in the perpetration of or attempt to perpetrate rape, arson, robbery or burglary (2412 Burns Supp. 1929) is not unconstitutional as depriving one accused of crime of due process of law which is guaranteed to him by the Constitution (Art. 1, 12, Constitution, 64 Burns 1926) p. 367.
10. CRIMINAL LAW---Punishment to be Inflicted for Crime---Legislative Function.---The determination of the punishment to be inflicted for a crime is a legislative function. p. 368.
11. CRIMINAL LAW---Function of Jury in Criminal Trials---Jury has no Constitutional Right to Fix the Punishment.---The function of a jury in a criminal trial is to render a verdict determining the guilt or innocence of the accused; the judgment fixing the punishment ordinarily is imposed by the court. Although, the jury, in arriving at its verdict, has "the right to determine the law and the facts," it has no constitutional right to fix the punishment. p. 368.
12. MURDER---Death Penalty Mandatory---Statute does not Deprive Accused of Jury Trial.---Although the act of 1929 defining the crime of murder (Acts 1929, ch. 54, 4, p. 137, 2412 Burns Supp. 1929) provides that one who kills any human being in the perpetration of, or in an attempt to perpetrate, rape arson, robbery or burglary shall suffer death, it does not deprive an accused of a jury trial as described by the Constitution (13, Art. 1 of the Constitution, 65 Burns 1926). p. 368.
13. MURDER---Killing while Perpetrating or Attempting to Perpetrate Rape, Arson, Robbery or Burglary.---Premeditation or deliberation (which distinguishes first degree murder as defined in the first sentence of 2412 Burns Supp. 1929 from second degree murder as defined in 2415 Burns 1926) is not an element of the crime of killing a human being while perpetrating or attempting to perpetrate rape, arson, robbery or burglary (2412 Burns Supp. 1929), nor is malice nor intent to kill a necessary element. p. 370.
14. MURDER---Killing while Perpetrating or Attempting to Perpetrate Rape, Arson, Robbery or Burglary---Instruction as to Second Degree Murder or Manslaughter.---In the trial of a person accused of the crime defined in the proviso to 2412 Burns Supp. 1929, namely, killing a human being while perpetrating or attempting to perpetrate rape, arson, robbery or burglary, where the evidence shows that the killing was done while perpetrating or attempting one of said offenses, the court is not required to instruct the jury on second degree murder or manslaughter. p. 370.
15. CRIMINAL LAW---Misconduct of Juror---Affidavits and Counter-Affidavits---Supreme Court cannot Weigh the Conflicting Evidence.---Where affidavits and counter-affidavits were filed as to the misconduct of a juror, and the decision of the trial court thereon is supported by sufficient evidence, the Supreme Court cannot undertake to weigh the evidence contained in the conflicting affidavits. p. 370.
16. CRIMINAL LAW---Confessions Obtained by Violence and Threats of Police Officers Unlawful---Confessions so Obtained Inadmissible in Evidence.---It is unlawful for police officers in charge of a person under arrest for the commission of a crime to inflict or threaten to inflict upon him any physical violence or injury or to deprive him of necessary food or sleep, for the purpose of extorting a confession (2420 Burns 1926) and confessions so obtained are not admissible in evidence. p. 371.
17. CRIMINAL LAW---Confessions and Admissions---Admissible in Evidence---Exceptions.---Under the express provisions of the statute (2271 Burns 1926), confessions and admissions made voluntarily or under inducements other than fear produced by physical violence, threats, intimidation or undue influence, are admissible in evidence. p. 371.
18. CRIMINAL LAW---Confessions and Admissions---Question of Competency is for the Court.---If the admission of a confession in evidence is objected to by a defendant, the question of whether or not it is competent is one for the court to determine, and its competency must not be left to the jury. p. 372.
19. CRIMINAL LAW---Confessions and Admissions---Admissibility in Evidence How Determined---Burden of Proof as to Competency.---If the admission of a confession in evidence is objected to, the court should, in the absence of the jury, hear evidence as to the circumstances under which the confession was made, and the burden of proving the confession incompetent is on the defendant. p. 372.
20. CRIMINAL LAW---Confessions and Admissions---After Court has Decided a Confession Competent and it has been Introduced in Evidence---Admissibility of Contradicting and Discrediting Evidence.---After the trial court has determined that a confession is competent and it has been introduced in evidence, the defendant has the right to present to the jury evidence as to the conditions under which it was obtained or evidence which tends to contradict, discredit or lessen the weight thereof. p. 372.
21. CRIMINAL LAW---Confessions and Admissions---Evidence Held to Sustain Trial Court's Ruling as to Competency.---Evidence held to sustain the trial court's ruling that a defendant's confession was competent and admissible as against the contention that it was obtained by force and threats of violence. p. 373.
22. CRIMINAL LAW---Confessions and Admissions---Competency Questioned---Supreme Court will not Weigh Conflicting Evidence on Subject of Competency.---The Supreme Court will not weight conflicting evidence given on the hearing as to the competency of a confession made by the defendant, his contention being that police officers threatened him with physical violence, which was denied by the officers. p. 373.
23. CRIMINAL LAW---Confessions and Admissions---Competency of Parts of a Confession---Objectionable or Irrelevant Parts may be Deleted.---A confession need not be admissible as a whole, but objectionable or irrelevant parts may be deleted, and the remainder introduced in evidence. p. 374.
24. CRIMINAL LAW---Confessions and Admissions---Parts of Confession Introduced in Evidence---Accused's Rights in the Premises.---Where parts of a confession have been introduced in evidence, the accused has the right, if he desires, to require that the whole of any statement or conversation contained therein shall go to the jury. p. 374.
25. APPEALS---Refusal...
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