Posey v. State
| Decision Date | 06 January 1956 |
| Docket Number | No. 29292,29292 |
| Parties | , 54 A.L.R.2d 706 Clifton POSEY, Edward Michael, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Edward J. Morrison and Joseph S. Thompson, Columbus, for appellant.
Edwin K. Steers, Atty. Gen., and Owen S. Boling, Deputy Atty. Gen., for appellee.
LANDIS Judge.
Appellants were charged by affidavit with the crime of rape and were convicted, after a jury trial, of the lesser included offense of assault and battery with intent to commit a felony.
Error is assigned on this appeal upon the denial of appellants' motion for a new trial, setting up the statutory ground, 'That the jury had received and considered evidence, papers, and documents not authorized by the court.' Other alleged grounds for a new trial were set forth in appellants' motion, attempting to raise substantially the same question, but as they are not in the form authorized by statute, they will not be considered on appeal. Ewbank's Indiana Criminal Law (2d ed.) § 672. Denny v. State, 1921, 190 Ind. 76, 129 N.E. 308; Cosilito v. State, 1926, 197 Ind. 419, 151 N.E. 129.
Appellants buttress their motion for a new trial with the affidavit of their attorney, setting forth the cause was submitted to the jury for decision at 11:30 A.M.; that the jury deliberated until approximately 10:20 P.M., when it reached a verdict; that the following day at 3:00 P.M. said affiant-attorney was told by the foreman of the jury: 'We never would have reached a verdict if it had not been for the criminal law books in the jury room,' that 'they were a big help to him' and the rest of the jury in arriving at their decision; that he 'read to the jury the penalties, included in the lesser offenses.' Said affiant-attorney further says he immediately went to the Courthouse and communicated these matters to the trial judge, and affiant-attorney and said judge went to the jury room where the jury had deliberated, and found Vol. 1 of Burns' Indiana Statutes, 1926 Edition, open at the page having reference to the crime of rape; that in said book, between various pages, were book marks and playing cards inserted as book marks, at the appropriate places for assault and battery with intent to commit a felony, assault and battery, and assault, and the statute regarding lesser included offenses; that the trial judge then removed the law books from the jury room, and upon inquiry was told by the bailiff they had been in the jury room as long as he had been bailiff, which was approximately seven years.
The State of Indiana filed counter affidavit of the prosecuting attorney and supporting affidavit of the jury foreman, admitting the jury did have Vols. 1 and 2 of Burns' 1926 Statutes without authorization of the court, but denying that appellants were prejudiced, as these were official compilations of the law about which the jury had been previously instructed in open court. The jury foreman's affidavit admitted the statutes were present and had been looked at by the jury in the jury room, but denied the statement of appellants' attorney that he had said the books 'were a big help to him and the jury and that the verdict would not have been reached * * * but for the books'; that said statutes had no more effect on the jury, than the written instructions of the court defining the crimes would have had, if they had been present in the jury room.
In the trial of criminal causes in Indiana, it has been stated that the jury are the judges of the law, as well as the facts.
See: Lynch v. State, 1857, 9 Ind. 541; Williams v. State, 1858, 10 Ind. 503; McDonald v. State, 1878, 63 Ind. 544; Art. 1, § 19, Constitution of Indiana.
This section of the Constitution, however, giving the jury in criminal cases the right to determine the law and the facts, does not take away from the court the right to advise the jury as to the law applicable. Scherer v. State, 1919, 188 Ind. 14, 121 N.E. 369.
The propriety of the use of law books by jurors in the jury room during their deliberations has been before this court and has been considered on a number of previous occasions.
In Newkirk v. State, 1866, 27 Ind. 1, the jury obtained and used a copy of Bishop's Criminal Law, which is a general treatise on the common law of crime, and this was held to be reversible error.
In Jones v. State, 1883, 89 Ind. 82, 87, the jury, during their deliberations had possession of Vol. 71 of the Ind.Reports, in which was reported the previous appeal of said cause to the Supreme Court. Such volume contained a recital of the evidence on the former trial, competent and incompetent, and its consideration by the jury in the jury room was held to be such misconduct as warranted a new trial.
Mulreed v. State, 1886, 107 Ind. 62, 66, 7 N.E. 884, 887, involved the alleged taking to the jury room, and consideration by the jury, of an...
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Shultz v. State
...with the bailiff, outside the presence of the court, the defendant's age. The guilty verdict was affirmed. Accord, Posey v. State (1956), 234 Ind. 696, 131 N.E.2d 145. In Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791, conversation between one of the jurors and a State's witness was h......
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...No prejudicial act was done. Similarly, prejudice must be shown when the jury takes documents into its deliberations. Posey v. State, (1955) 234 Ind. 696, 131 N.E.2d 145; McClanahan v. State, (1954) 233 Ind. 365, 118 N.E.2d 734. The juror who had the notes testified that she made these simp......
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