Marsh v. State, 1278S297

• Court: Supreme Court of Indiana
• Citation: 272 Ind. 178,396 N.E.2d 883
• Docket Number: No. 1278S297,1278S297
• Parties: Dean MARSH, Appellant, v. STATE of Indiana, Appellee.
• Decision Date: 21 November 1979

Page 883

396 N.E.2d 883 272 Ind. 178 Dean MARSH, Appellant,
v.
STATE of Indiana, Appellee. No. 1278S297. Supreme Court of Indiana. Nov. 21, 1979.

Page 884

Rick D. Meils, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a criminal appeal from convictions for commission of a felony while armed, to-wit: rape, pursuant to Ind.Code § 35-12-1-1 and first degree burglary pursuant to Ind.Code § 35-13-4-4. Appellant seeks relief on four bases, alleging (1) error in refusing to [272 Ind. 179] permit him to peremptorily challenge a juror; (2) prosecutorial misconduct in closing statement; (3) error in refusing to grant a continuance; and (4) that the evidence was insufficient to support the verdict of guilty.

I.

During the jury selection defense counsel addressed peremptory challenge to jurors number 2, 4, 5, 7, and 8. In refusing to permit the challenge as to juror number 8, the court stated:

"Wait a minute. Once you've done one you've already accepted eight. A pass done is a pass accepted. So its 2, 4, 5, and 7. Eight remains."

Page 885

The record of voir dire examination and actions taken on challenges during such examination is not included in the record of proceedings before us. The local rule of practice which the trial court was apparently applying is likewise absent from the record and briefs. In Cochran v. State (1978) Ind., 378 N.E.2d 868, we were faced with a claim of this same nature which arose in the same court. Because of the absence of a transcript of the voir dire examination and a copy of the local rule governing that procedure, this Court was unable to reach the merits of the claim. However, in this case we find a sufficient record upon which to fairly adjudicate the claim in the colloquy of the judge, the chronological record of the steps taken during voir dire, and representations in appellant's brief.

The right of an accused to peremptory challenges is granted by Ind.Code § 35-1-30-2. The statutes governing jury challenges in criminal cases are in the same form today as when originally enacted as part of the Criminal Code of 1905 with a minor exception relating to the selections of jurors in death cases, a change which does not touch this case. In McDonald v. State (1909) 172 Ind. 393, 88 N.E. 673, with regard to this same statute, this Court said:

"(T)he statute means that when the jury is passed to a party he must challenge peremptorily if he would challenge, in the absence of an after-arising condition, and that, when the opportunity was twice given, as here, and not exercised, a party cannot complain, unless new conditions arise, calling for an exception (to,) or relaxation of the rule, the practice or the order in the particular case, and that, if a given practice, not arising to the dignity of a rule, is invoked, [272 Ind. 180] as here, one to be exempt from its operation, on account of his ignorance of it, he must reasonably apply to be relieved from its operation." 172 Ind. at 397, 88 N.E. at 675.

The Court in this statement departed from the prior common law rule which permitted peremptory challenges to be made at any time prior to the time the jury is sworn, Beauchamp v. State (1842) 6 Blackf. 299; Cochran v. State, supra, and in the same opinion established the present rule that the right to challenge peremptorily is subject to reasonable regulation by the court. Appellant relies heavily upon the appellate court opinion in Veach v. McDowell (1962) 133 Ind.App. 628, 184 N.E.2d 149, in which that court reversed a judgment because of the refusal of a judge to permit a peremptory challenge to be exercised. The circumstances of that case were that the plaintiff first examined the prospective jurors, exercised a number of peremptory challenges and passed the group to the defense which conducted examination and accepted the jury as passed to them. The plaintiff then sought the rebuked challenge. The appellate court held that the plaintiff had not...