Norton v. State

• Decision Date: 03 April 1886
• Citation: 106 Ind. 163,6 N.E. 126
• Parties: Norton v. State.
• Court: Indiana Supreme Court

106 Ind. 163

6 N.E. 126

Norton

v.State.

Supreme Court of Indiana.

April 3, 1886.

Appeal from Vigo circuit court.C. F. & J. G. McNutt, Faris & Harnill, and Wm. H. Spencer, for appellant.

The Attorney General, David W. Henry, and Henry C. Newitt, for appellee.

Howk, J.

In this case the appellant, Norton, was indicted, tried by a jury, and found guilty of the crime of incest, as charged in the indictment, with one Elizabeth Flagg, his step-daughter, and his punishment assessed by the jury at imprisonment in the state's prison for the term of four years. Over appellant's motion for a new trial and in arrest, the court rendered judgment against him on the verdict.

Appellant has here assigned errors upon the overruling (1) of his motion for a new trial; (2) of his motion for a venire de novo; and (3) of his motion in arrest of judgment. We will consider and pass upon these alleged errors in the inverse order of their statement.

Under section 1843, Rev. St. 1881, a motion in arrest of judgment, in a criminal cause, can only be sustained for one or other of the following causes: (1) When it appears that the offense charged in the indictment or information is not within the jurisdiction of the court; or (2) when the facts stated in the indictment or information do not constitute a public offense. It is not shown by appellant that either one of these statutory causes for arresting the judgment exists in this case. Besides, the error of the court in overruling the motion in arrest is not discussed by appellant's counsel in their brief of this cause, and this may be regarded, we think, under the decisions of this court, as a waiver of such error, even in a criminal cause. Bybee v. State, 94 Ind. 443;Fairbanks v. Meyers, 98 Ind. 92.

Under the alleged error of the court in overruling appellant's motion for a venire de novo, the only point made by his counsel is based upon their construction of the provisions of section 1829, Rev. St. 1881, and the alleged non-compliance of the trial court therewith. This section provides as follows:

“When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and, if all appear, their verdict must be rendered in open court. If all do not appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term. The defendant shall have the right, in all criminal cases, to have the jury polled.”

It is not claimed by appellant that the jury had not all appeared when their verdict herein was rendered in open court; but it is claimed that their names were not called prior to such rendition of their verdict. Although the statutory provision requiring that the names of the jury must be called is mandatory in form, and although we think that such provisions ought always to be strictly complied with, yet we can hardly regardthe omission to call the names of the jury as a material or fatal error, unless it further appears that the jury did not in fact all appear at the time their verdict was rendered in open court. To such an error, conceding it to be such, as the one here complained of, section 1891, Rev. St. 1881, seems to us peculiarly applicable, so far as our consideration of the error is concerned. In that section it is thus provided:

“In the consideration of the questions which are presented upon an appeal, the supreme court shall not regard technical errors or defects, or exceptions to any decision or action of the court below, which did not, in the opinion of the supreme court, prejudice the substantial rights of the defendant.”

In the case at bar, if the jury all appeared at the time their verdict was returned into open court, as we must assume they did, in the absence of any showing to the contrary, then we are of opinion that the omission of the court to have the names of the jury called, even if erroneous, did not prejudice the substantial rights of the appellant. Clayton v. State, 100 Ind. 201.

Under the alleged error of the court in overruling appellant's motion for a new trial, many questions are presented and discussed by his counsel; and of these we will consider and decide such as seem to us to have been fairly saved in the record, in the same order his counsel have pursued in their argument.

Appellant's counsel first insist that the trial court erred in overruling his application for a continuance of the cause, made on the twenty-seventh day of June, 1885. The application was founded upon the affidavit of appellant, and the cause assigned for such continuance was to enable him to procure the attendance and testimony, at the trial of this case, of certain named witnesses. Whether the court did or did not err in overruling this application for a continuance, the question is not so saved in or presented by the record before us as that it can be considered and decided here. This is so because appellant's affidavit, upon which rested his application for such continuance, was not made a part of the record of this cause in any manner known to our law. The only time this affidavit appears in the transcript is when the order-book entry of the proceedings of the court in the case, of the day on which it was made and filed, is copied into the transcript; of which entry such affidavit seems to have been a considerable part. The affidavit was not set out in the bill of exceptions; it was not made a part of such bill by the use of the words “here insert,” as provided in section 626, Rev. St. 1881, or by an order of court; and it was improperly copied into the order-book entry, and did not thereby become a part of the record. In the bill of exceptions is a memorandum of the clerk below, to the effect that appellant's affidavit could be seen at the page and line of the transcript where such order-book entry appears therein. But such memorandum did not make the affidavit a part of such bill of exceptions, for two reasons, namely: (1) Because the bill did not contain the words “here insert,” which were necessary to authorize the insertion therein in the affidavit; and (2) because the affidavit was not a proper part of the order-book entry, and was improperly copied into the transcript as a part of such entry, and thereforea reference to such copy could not and did not make the affidavit a part of such bill. These points of practice are settled by many of our decisions. Sidener v. Davis, 69 Ind. 336;Colee v. State, 75 Ind. 511;Barnes v. Jones, 91 Ind. 161;Crumley v. Hickman, 92 Ind. 388.

The next matters of which complaint is here made by appellant's counsel relate to the selection of the jury for the trial of the cause, and may properly be considered together. The indictment against the appellant, in this case, seems to have been returned and filed on May 21, 1885, and the cause seems to have been set down for trial on June 27, 1885, which was the forty-eighth day of the May term, 1885, of the court below. Prior to the day last named, the petit jury of such May term having served as such for four weeks during the term, the trial court in its discretion has discharged the jury for the term, as it was expressly authorized to do by the last provision of section 1387, Rev. St. 1881. When appellant's case was called, he demanded a trial by the regular panel of the petit jury, previously discharged as aforesaid; and thereupon it was ordered by the court that its clerk should proceed forth with to draw and issue a summons for a jury to appear in such court on June 29, 1885. This order was expressly authorized by section 1387, supra. The record then recites that the clerk of such court, and Milton S. Durham, one of the jury commissioners of Vigo county, withdrew from the box set apart for that purpose certain named parties to act as jurors to try this cause, all of whom were householders or freeholders and qualified voters of Vigo county. Afterwards appellant moved the court to quash the summons or venire issued for the jury last drawn for the trial of this case, and challenged the array, which motion and challenge were overruled by the court, and this ruling is complained of here as...