Nix v. State, 29806

Decision Date19 April 1960
Docket NumberNo. 29806,29806
Citation166 N.E.2d 326,240 Ind. 392
PartiesBarbara Ann NIX, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Norval K. Harris, Bedwell & Bedwell, Sullivan, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Asst. Atty. Gen., Paul H. Frazier, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

The appellant was charged by affidavit with the offense of uttering a false, forged and counterfeit check. Upon a plea of not guilty and a trial by jury she was found guilty and was sentenced to not less than two (2) nor more than fourteen (14) years imprisonment and a fine of $500. This is an appeal from that judgment.

The only ground relied upon for a reversal upon this appeal is the following specification in the appellant's motion for a new trial:

"Comes now the defendant Barbara Ann Nix, and moves the court for a new trial herein for each of the following reasons:

"1. Misconduct of the juror, Marcus Bartley, which tended to prevent a fair and due consideration of the case, in this: When questioned by the attorney for the defendant as to his qualifications, to act as a juror, said Juror Marcus Bartley was asked: 'Do you know of any reason which I might not know of which would keep you from giving the defendant a fair and impartial trial?' to which said Juror Marcus Bartley answered 'No'; whereas in truth and in fact, said Juror Marcus Bartley had notified police officers on January 24, 1959 that fraudulent check-passers were operating in Sullivan, Ind.; that either John L. Devers or Cecil I. Downey attempted to pass a 'bad' check in the Kroger Store, Sullivan, Ind. where Juror Bartley was manager on said date; that said Downey and Devers were later arrested on said date at Vincennes, Ind. and this defendant, Barbara Ann Nix, was arrested with them; that all three were brought together to the Sullivan County Jail, Sullivan, Ind.; that separate charges were filed against Devers and Downey and this defendant; that on February 19, 1959 said Downey and Devers were arraigned in Sullivan Circuit Court and pleaded guilty and were sentenced for from one to ten years for issuing frauduling checks; that said Juror Marcus Bartley knew all these facts and because of his said knowledge, it was impossible for said juror to give said defendant, Barbara Ann Nix, a fair and impartial trial.

"Wherefore, defendant prays that she be granted a new trial."

Affidavits were filed in support of the above specification and counter-affidavits by the State. The record contains the following stipulations:

'And now the State of Indiana and the defendant, by counsel stipulate and agree that for the purpose of this appeal, the record does now show that the voir dire examination of prospective jurors in the trial of this cause, made by both the State of Indiana and the defendant, was not reported and was not transcribed.

'The parties further agree that inasmuch as the defendant's motion for new trial contained one and only one specification, namely: misconduct of a juror; that in the interest of the expense to be incurred by Sullivan County, Indiana that it is not necessary, and no transcrit of the evidence herein is to be made, or shall be made and offered as a part of the record herein.'

The State contends that since the alleged misconduct of the juror occurred upon the voir dire examination, this Court on appeal, is unable to determine the alleged misconduct without all of the voir dire examination before it. A reading of the stipulations reveals that there has been no agreement or stipulation that a special bill of exceptions of the voir dire examination may be omitted. The stipulation with reference to the omission of the bill of exceptions pertains solely to the evidence taken 'at the trial'. The evidence taken at the trial is unnecessary for a consideration of the question here. The voir dire examination, however, is not part of the trial. A jury trial does not begin until a jury is impaneled and the cause is submitted. Acts 1881 (Spec.Sess.), ch. 38, § 371, p. 240, being § 2-1901, Burns' 1946 Replacement; Bush v. State, 1920, 189 Ind. 467, 128 N.E. 443; Glenn v. Clore, 1873, 42 Ind. 60.

In the absence of stenographic notes of the voir dire examination the parties could have stipulated the substance of all the questions and answers of this juror taken upon the voir dire and the same could have been settled as a special bill of exceptions by agreement or by the judge. The law looks with favor upon agreed statements of fact or evidence, since such an arrangement makes for the saving of both time and expense and expedites legal proceedings. Here, however, we have no such an agreed statement of facts settled as a special bill of...

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16 cases
  • Adams v. State
    • United States
    • Indiana Supreme Court
    • 19 Julio 1971
    ...the voir dire examination of the jurors and the record does not present such question for review. We stated in Nix v. State (1960), 240 Ind. 392, 396, 166 N.E.2d 326, 328, where the voir dire examination of witnesses was in issue: 'The necessity of having before us the voir dire examination......
  • Bardonner v. State
    • United States
    • Indiana Appellate Court
    • 12 Marzo 1992
    ...voir dire is not part of a trial. The trial does not begin until the jury is impaneled and the cause is submitted. Nix v. State (1960), 240 Ind. 392, 166 N.E.2d 326. Defendant should have moved to strike, discharge the jury panel, or challenge the array. See, e.g., Utterback v. State (1974)......
  • State v. Alderette
    • United States
    • Court of Appeals of New Mexico
    • 3 Julio 1974
    ...N.M.S.A.1953 (2d Repl. Vol. 6, 1973 Supp.)). It has been held that voir dire examination is not part of the trial. Nix v. State, 240 Ind. 392, 166 N.E.2d 326 (1960). State v. Gutierrez, 78 N.M. 529, 531, 433 P.2d 508 (Ct.App.1967) is not applicable. It holds that any unauthorized communicat......
  • Barnes v. State, 573S99
    • United States
    • Indiana Supreme Court
    • 10 Julio 1975
    ...the challenge for cause would be waived if the defendant did not promptly inform the court and challenge the juror. Nix v. State, (1960) 240 Ind. 392, 166 N.E.2d 326; Maddox v. State, (1952) 230 Ind. 92, 102 N.E.2d This case is remanded to the trial court for an evidentiary hearing pursuant......
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