Maddox v. State, 28752

• Decision Date: 04 December 1951
• Docket Number: No. 28752,28752
• Citation: 102 N.E.2d 225,230 Ind. 92
• Parties: MADDOX v. STATE.
• Court: Indiana Supreme Court

Page 225

102 N.E.2d 225

230 Ind. 92

MADDOX v. STATE.

No. 28752.

Supreme Court of Indiana.

Dec. 4, 1951.

Jones & Cook, Kokomo, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor and George W. Hand, Deputies Atty. Gen., for appellee.

JASPER, Judge.

Appellant was charged by second amended affidavit with vehicle taking, under § 10-3010, Burns' 1942 Replacement. He entered a plea of not guilty and served notice of an alibi. Later a special answer setting out that appellant was being placed in jeopardy twice for the same offense was filed. The cause was tried by jury, a verdict of guilty of vehicle taking was returned, judgment was entered, and sentence followed.

Appellant, under his assignment of errors, contends that he has been placed in jeopardy twice for the same offense.

The record reveals the following:

'And this cause being at issue and called for trial the same is now submitted to a jury for trial composed of the following named men and women, towit:--C. M. Job, Virgil Heckman, Lena Leafgreen, Joe Teal, Sally Davidson, J. Ord Fortner, Robert E. Chambers, Mable Fleenor, Charles Hamilton, E. R. Rouch, Ancil J. Walker, and Xen Pence, twelve disinterested freeholders or householders and qualified voters of Howard County Indiana who are examined, accepted and duly sworn to try said cause. * * *

'Comes now W. Dan Bretz, Prosecuting Attorney for the 62nd Judicial Circuit and makes the opening statement on behalf of the State of Indiana.

'The opening statement on behalf of the State of Indiana made by Mr. Bretz was interrupted by juror, Charles Hamilton, who asks permission to speak with the court.

'The following questions were asked by the court:

'Q. You were the one who asked to speak? A. Yes, I would like to explain that it was a misunderstanding, I never heard this boy Hamilton called 'Scotty' before. Estranged from family for quite awhile when he mentioned the name 'Everett' he's my nephew, I wouldn't want to go on.

'The Court now excuses the jury.

'11:10 A.M. Jury in the box.

'Jury is recalled and recessed until 1:30 P.M.

'At this time the Court now instructs the Jury not to discuss the cause with anyone and if anyone insists on talking to them to report their name to the Court.

'1:30 P.M. Jury in the box.

'The Court now asks Mr. Cook, Attorney for the defense, if he has anything to file and he answers, 'Not at this time.'

'2:05 P.M. Jury in the box.

'The Court again asks Mr. Cook if he has any papers to file and Mr. Cook replies as follows: 'The defense at this time awaits any action by the State.'

'The Court now asks Mr. Bretz, Prosecuting Attorney the following:

"Do you have any action to take?'

'Mr. Bretz replies, 'Does the defense mean it waives any action?'

'By Mr. Cook: 'The defense is neither waiving or committing itself at this time.'

'By Mr. Bretz: 'Does the defense desire to proceed with the trial with this jury?'

'By the Court: 'He has no motion.'

'By Mr. Cook: 'If he proceeds I will have no objection, I'll wait and see what he does. Nothing for me to object to at this time.'

'By the court: There being no motion the Prosecutor is instructed to proceed with his opening statement. (At this time Mr. Bretz gets up and walks to the center of the Jury Box, preparatory to continuing with his opening statement.)

'By Mr. Cook: 'The defendant objects for the reason he cannot have a fair and impartial trial for the reason Mr. Charles Hamilton, juror, stated he is an uncle to a co-defendant, and a party who is a witness in this trial, that's my objection.'

'By the Court: 'An objection to continuance?'

'By Mr. Cook: 'An objection."

Appellee then filed a verified written motion to withdraw the submission of the cause from the jury, 'for the sole and only purpose of determining the qualifications of the said juror to serve, and no other.'

The record further reveals:

'Said motion being at issue, same is now submitted to the Court for hearing and the Court having examined the same, does now grant the motion, and submission is now withdrawn for further interrogation of Charles M. Hamilton, only.

'By Mr. Cook: 'Defendant objects for the reason if the withdrawal of the case is taken from the jury it requires a complete new examination of the jury as in the first instance giving the defendant the right to examine the jury in full and move for the removal of any juror for cause of preemptory challenge. Defendant further objects for the reason that the jury as it is empannelled and duly sworn and this defendant has been placed in jeopardy and now objects to withdrawal of submission of the cause and the ruling of the Court thereon. Defendant doesn't care to question Mr. Hamilton for the reason he is a duly sworn impannelled juror and as such it is not in the province of the State of Indiana or the defendant to interrogate further.'

'By the Court: 'Mr. Bretz, do you have any questions to ask of the jury?'

'By Mr. Bretz: 'This jury is satisfactory.'

'At this time the Jury is again sworn in by the Court.

'Mr. Cook asks for a few minutes recess in order that he may prepare a petition setting out his client, the defendant herein, to be in double jeopardy.

'The Court grants the recess requested, and excuses the Jury at this time.'

Appellant then filed a verified written affirmative answer of double jeopardy, to which verified answer appellee filed a verified reply setting out substantially the same facts as above set out. The prosecuting attorney then completed his opening statement.

The question is properly presented as to whether or not appellant was put twice in jeopardy. ¹

Under the facts as above set out in this case, we must therefore decide when jeopardy attached. This court has decided on numerous occasions that when a person is properly charged with a crime, has been arraigned and pleaded to such charge, has been put upon his trial before a tribunal properly organized and competent to try him for the offense charged, and a jury has been impaneled from persons competent to sit on the trial and duly sworn, then jeopardy attaches. Armentrout v. State, 1938, 214 Ind. 273, 275, 15 N.E.2d 363; Gillespie v. State, 1907, 168 Ind. 298, 80 N.E. 829; Adams v. State, 1884, 99 Ind. 244. The court, in State v. Reed, 1907, 168 Ind. 588, 589, 590, 81 N.E. 571, said: 'It is well settled in this state that when a defendant in a criminal prosecution is put upon his trial on a valid charge in a court having jurisdiction of the subject-matter and the parties, and the cause is dismissed over his objection, the same is equivalent to an acquittal, and he has been put in jeopardy, within the meaning of section 14 of article 1, of the Constitution of this state, and cannot again be put in jeopardy for the same offense.'

It has also been decided by this court, in State v. Wamire, 1861, 16 Ind. 357, that:

'The following points of criminal law are settled in this State:

'1. If the Court, without the consent of the defendant, discharge the jury to whom his cause has been submitted, before verdict, no imperious necessity rendering such discharge necessary, it works an acquittal of the defendant * * *.'

In Adams v. State, supra, this court said, page 245 of 99 Ind.:

'It is a well settled rule that all objections to the competency of a juror are waived by neglecting to use due diligence in urging them as well as by the failure of the party, afterwards complaining, to avail himself of such objections at the proper time, after they have come to his knowledge. (Citing cases.)

'That rule applies especially to that class of disqualifications which arise from a proposed juror not being either a freeholder or householder, or a voter of the county. It is also well settled that when the ordinary forms of law have been complied with, jeopardy attaches when the jury are sworn. 1 Bishop Crim. Law, section 1014; 1 Bishop Crim.Proc., section 961; Maden v. Emmons, 83 Ind. 331.

'When jeopardy has begun, and the jury are unnecessarily and without the consent of the prisoner discharged, such a discharge of the jury is the equivalent of an acquittal, and the prisoner thereby becomes entitled to exemption from further prosecution for the same offence.'

Jeopardy attached in the case at bar when the jury was first sworn.

The proper procedure for a defendant in objecting to a juror, after the jury had been impaneled and sworn, was decided by this court in Kurtz v. State, 1896, 145 Ind. 119, 42 N.E. 1102. In that case, after the jury had been impaneled and sworn to try the cause, a juror approached the judge and, in substance, stated that, since listening to the opening statement, he thought he might have talked about the case. The defendant then moved the court to examine the juror. The prosecuting attorney objected, stating that the proper motion was to set aside the submission. The court allowed the examination of the juror. After examination, the defendant challenged the juror for cause, which the court overruled. The defendant then peremptorily challenged the juror, which the court also overruled. The defendant claimed that it was error to overrule his peremptory challenge. On appeal, this court said, page 122 of 145 Ind., page 1103 of 42 N.E.:

'We think, however, that in this case the appellant did not pursue the proper course. After the acceptance of the jury, and after they are sworn to try the cause, it is too late to examine them as to their competency, or to peremptorily challenge any of their number, unless there be first interposed a motion to set aside the submission. Had there been, in this case, a motion to set aside the submission of the cause to the jury, with a view to the re-examination of this juror on his voir dire, and had the court overruled such motion, we should have a very different case before us.

'Nor was it by any oversight or inadvertence that counsel did not make the proper motion. The motion that should have been made was suggested by the prosecuting...