McDonald v. State

• Decision Date: 03 June 1909
• Docket Number: 21,402
• Citation: 88 N.E. 673,172 Ind. 393
• Parties: McDonald v. The State of Indiana
• Court: Indiana Supreme Court

88 N.E. 673

172 Ind. 393

McDonald v. The State of Indiana

No. 21,402

Supreme Court of Indiana

June 3, 1909

From Criminal Court of Marion County (37,342); James A. Pritchard Judge.

Prosecution by The State of Indiana against Eugene F. McDonald. From a judgment of conviction, defendant appeals.

Affirmed.

Clifford C. Kealing, for appellant.

James Bingham, Attorney-General, Alexander G. Cavins, Edward M White and William H. Thompson, for the State.

OPINION

Myers, J.

Appellant was convicted on an indictment charging him and another with conspiring for the purpose and with the intent unlawfully, feloniously and designedly to defraud the Adams Express Company, by preparing a package, securely wrapped, which package contained, among other things, two damp sponges, excelsior and damp phosphorus, so arranged that when sufficiently dried the phosphorus would ignite and cause such package and its contents to be burned and consumed; that, in pursuance of the conspiracy, they delivered the package to said express company to be transported from Indianapolis, Indiana, to Louisville, Kentucky, and falsely represented that the package contained papers of the value of $ 10,000; that the conspirators intended, by the preparation of such package, and its delivery to the express company, that the contents of the package, while in possession of the company, should become sufficiently dry to ignite, burn and destroy the package, and to claim to have been damaged in the sum of $ 10,000, and fraudulently and unlawfully to make demand upon the company therefor, and cheat and defraud the latter by obtaining money from such company by virtue of such false pretenses.

The only error assigned is upon the overruling of the motion for a new trial.

The questions sought to be presented arise upon alleged error in refusing the peremptory challenge of a juror on his voir dire, and in giving instructions. The evidence is not in the record. A bill of exceptions discloses that in impaneling the jury, when the jury had been passed back to the defendant's counsel for reexamination for the third time, and defendant had used but three peremptory challenges, being entitled to ten, the defendant peremptorily challenged a juror who had been in the jury box from the time the impaneling of the jury began, and the challenge was disallowed, "for the reason that, under a rule of said court, which had been in existence for many years, the defendant's peremptory challenge was made too late," said rule was stated by the court at the time as follows: "That each side, the defendant and the State, is entitled to examine each juror twice, and challenge, if desired, but cannot challenge a juror after the jury has been passed twice with each juror in the box. Said rule is an oral rule, and is not entered in the records of the court, but has been regularly enforced for many years." It is further recited that the defendant and his attorney, at the time of the challenge, did not know of the rule, but they did not inform the court on being advised of such rule that either or both of them were ignorant of it, and did not ask that it be suspended, nor that an exception be made to its enforcement. on account of such ignorance. We think it quite clear that there can properly be no such thing as an oral rule of a court. Rules of court, when legally adopted and promulgated, have the effect of positive laws. § 1443 Burns 1908, § 1323 R. S. 1881; Magnuson v. Billings (1899), 152 Ind. 177, 52 N.E. 803; State v. VanCleave (1902), 157 Ind. 608, 62 N.E. 446; Smith v. State, ex rel. (1894), 137 Ind. 198, 140 Ind. 340, 36 N.E. 708; 11 Cyc., 742.

They ought not only to be formally promulgated, but they should be definitely stated, which could not be true of a practice reposing solely in the breast of a judge. They should be published and made known in some permanent form, so that they might be known to all. The so-called rule was clearly not a rule at all, and binding upon no one-- clearly not upon one who has no notice of it. The statutory provision (§ 2099 Burns 1908, Acts 1905, pp. 584, 634, § 228) is as follows: "In prosecutions for capital offenses, the defendant may challenge, peremptorily, twenty jurors; in prosecutions for offenses punishable by imprisonment in the state prison, ten jurors; in other prosecutions, three jurors. When several defendants are tried together, they must join in their challenges."

Irrespective of the so-called rule, was appellant denied a statutory right? No provision is made by statute nor by rule as to how or when the right shall be exercised, and it is claimed by appellant that it may be done at any time until the jury is sworn. In some jurisdictions the passing of a juror after he has been examined, tendered to and accepted by the other party, is a waiver of the right to challenge. In others, the right to challenge is in the sound discretion of the court. In others, a party who accepts a juror with knowledge of an objection waives the objection, but if a cause of objection is afterward discovered it is not waived, unless he is guilty of negligence in not discovering the objection. 24 Cyc., 322, 323. There is no showing made that appellant did not know from the beginning the grounds for the peremptory challenge, and he stands here upon the bare proposition that he was entitled to the challenge in any event, without offering any excuse to the court, or making any request for exemption or relief from the local practice. Had any request for exemption upon the ground that the so-called rule was void, or that the appellant or his counsel had no knowledge of it, been made, or if any reason were shown why the juror twice passed by appellant as satisfactory had been discovered to be unacceptable, a different question would be presented, for, independently of the so-called rule, appellant shows no ground for relief from his own act and acquiescence.

We think it cannot be said that the right of challenge is denied where it is restricted to a defined number of opportunities for challenge, nor that there must be a definite rule fixing the time when, or the manner in which, it must be exercised for we think it may be controlled either by a fixed rule, or by any reasonable limitation imposed in any specific case, so long as the right of peremptory challenge is not taken away; in other words, that, when reasonable opportunity is given to challenge, the spirit of the statute is complied with, and that it does not mean that the right is an open one at all times until the jury is sworn, irrespective of all else; that there is no good reason why there may be speculation as to what the opposite party may do, and the jury passed backward and forward to await the action of the adversary; that the 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...