Randolph v. State

• Decision Date: 20 July 1928
• Docket Number: No. 24527.,24527.
• Citation: 200 Ind. 210,162 N.E. 656
• Parties: RANDOLPH v. STATE.
• Court: Indiana Supreme Court

200 Ind. 210

162 N.E. 656

RANDOLPH

v.STATE.

No. 24527.

Supreme Court of Indiana.

July 20, 1928.

Appeal from Delaware Circuit Court; Clarence W. Dearth, Judge.

William Randolph was convicted of involuntary manslaughter, and he appeals. Affirmed.A. E. Needham, of Muncie, for appellant.

U. S. Lesh and O. S. Boling, both of Indianapolis, for the State.

WILLOUGHBY, J.

On March 17, 1923, while driving an automobile upon the streets of the city of Muncie, appellant collided with another automobile with such force and violence that one of its occupants was instantly killed. On that day appellant was arrested and remained in custody until the date of his trial. He was tried and convicted of involuntary manslaughter under an indictment returned by the grand jury of Delaware county at the January term, 1923. The indictment was filed in the clerk's office on March 28, 1923. On March 31, 1923, appellant was arraigned and entered a plea of not guilty. On April 21, 1923, and at the next term of court, the defendant withdrew his plea of not guilty and filed a motion to quash the indictment. This motion was overruled on May 3, 1923, and on May 7th appellant filed a motion to view the premises, which motion was granted. On May 17, 1923, appellant filed a plea in abatement, to which appellee demurred upon the ground that the facts therein stated were not sufficient to abate the action. This demurrer was sustained and appellant entered a plea of not guilty. There was a trial by jury, and over appellant's motion for a new trial and in arrest, judgment was rendered on the verdict. The rulings on demurrer and on the motion for new trial are assigned as error and relied on for reversal.

[1] Pleas in abatement must be certain to a certain intent in every particular, and must leave nothing to be supplied by intendment and no supposable answer unobviated. No presumptions of law or fact will be indulged in their favor. State v. Comer, 157 Ind. 611, 62 N. E. 452;Melville v. State, 173 Ind. 352, 89 N. E. 490, 90 N. E. 467;Smith v. State, 188 Ind. 501, 124 N. E. 698.

The rule is that pleas in abatement must be certain in intent in every particular, and it requires the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving nothing to be supplied by intendment or construction. The pleader must not only answer fully what is necessary to be answered, but must also anticipate and exclude all such supposable matter as would, if alleged on the opposite side, defeat his plea. Needham v. Wright, 140 Ind. 190, 39 N. E. 510; Chitty on Pleading, 9 Am. Ed. 462, 463; Stevens on Pleading, 9 Am. Ed. 352-431. State v. Comer, supra; Smith v. State, supra.

[2] If a plea in abatement is bad from any cause as against a demurrer, neither the trial court nor this court is bound by the statement of defects contained in the memorandum, nor by the failure of the demurring party to file a memorandum. The trial court may rightfully sustain a demurrer to an insufficient pleading on grounds entirely outside those mentioned in the memorandum. State ex rel. v. Sizelove, 83 Ind. App. 48, 137 N. E. 616;Poer v. State ex rel., 188 Ind. 55, 121 N. E. 83;State v. Sarlin, 188 Ind. 359, 123 N. E. 800;Hall v. State, 178 Ind. 448, 99 N. E. 732.

[3] At the common law grand jurors were selected as well as summoned and returned by the sheriff and the manner of their selection was a matter entirely in his discretion. Now in practically all jurisdictions statutes have been enacted regulating the method of selecting grand jurors.

Section 1817, Burns' 1926, provides that the circuit court shall, during the last term beginning in each calendar year, appoint for the next calendar year two persons, one of whom shall be a resident of the town or city in which the terms of the court shall be held, as jury commissioners, who shall be freeholders and voters of the county, well known to be of opposite politics, and of good character for intelligence, morality, and integrity, and cause them to appear and take an oath or affirmation in open court, to be entered of record in the order book of the court in a certain form, prescribing the form of such oath.

Section 1820, Burns' 1926, provides that the jury commissioners shall immediately from the names of legal voters and citizens of the United States, on the tax duplicate of the county for the current year, proceed to select, and deposit in a box to be furnished by the clerk for that purpose, the names, written on separate slips of paper, of uniform shape, size, and color, of twice as many persons as will be required by law for grand and petit jurors in the courts of the county, for all the terms of such courts to commence within the calendar year next ensuing. Such selection shall be made, as nearly as may be, in equal numbers from each county commissioner's district.

Section 1822, Burns' 1926, provides that at 10 o'clock a. m. on the Monday immediately preceding the commencement of any term of any criminal court, or circuit court, where there is no criminal court authorized, the clerk, having first well shaken the box, shall open the same in his office, and publicly draw therefrom six names of competent persons, who shall be summoned as the grand jury for such ensuing term, and he shall issue a venire therefor as the court or judge in vacation may direct.

Section 1821, Burns' 1926, provides that the jury box shall remain in the possession of the clerk securely locked, and the only key thereto shall be and remain in the possession of the jury commissioner of opposite politics from said clerk, who shall be present at each and every time said box is to be opened for any purpose within the provision of this act.

Section 2117, Burns' 1926, provides that the grand jury shall be composed of six persons having the qualifications required by law.

Section 580, Burns' 1926, provides that in the circuit, superior, criminal, and probate courts of the state of Indiana, where persons drawn for jury service or jurors in any such courts have been excused from service for the term of court, the judge thereof shall immediately notify the clerk of the circuit court thereof, and of the number so excused from the service and said clerk shall immediately proceed to draw from the jury box for each of said courts the number of names required by each of said courts to fill up the regular panel thereof, and record and certify such drawing upon the proper order book of such courts, respectively, and the names so drawn and certified shall become members of the regular panel of such court for such term. The names shall be drawn and the persons summoned in accordance with the existing provisions for the drawing and summoning of jurors, except that such persons so drawn shall be immediately summoned to appear at once in such courts. It has been held that this statute is applicable to the filling of vacancies of this kind in a grand jury. Stipp v. State, 187 Ind. 211, 118 N. E. 818;Duffey v. State, 187 Ind. 611, 120 N. E. 658;State v. Jackson, 187 Ind. 694, 121 N. E. 114; Smith v. State, supra.

Under section 2119, Burns' 1926, it is provided that the court may in its discretion discharge such grand jury and order a new one drawn in the manner provided by law. Section 2121 provides that a grand juror may be excused from attending on account of his own sickness, or physical infirmity, or the sickness or death of any member of his family, and for other things enumerated in said section.

It has been held that, where a grand juror is excused for the term, the vacancy must be filled from the jury box in the regular way. Stipp v. State, supra.

[4] The appellant's plea in abatement alleges in the first four specifications that the grand jury which returned the indictment in this case was not qualified to serve in such capacity and return an indictment charging a public offense and did not have legal authority as an inquisitory body to investigate the alleged commission of a public offense, and that said grand jury was not organized as required by the laws of the state of Indiana. These specifications state mere conclusions of the pleader and opinions as to the validity of the law under which the grand jurors were drawn.

[5] A plea in abatement must state facts and no presumptions can be indulged in favor of its validity. These specifications are insufficient. See State v. Comer, supra.

[6][7][8] The fifth specification alleges that the grand jury was drawn under order of court and that the order was illegal. This is purely the opinion of the pleader upon a question of law and does not state any fact concerning the drawing of said grand jury. But in the fifth specification is also the statement that the names of said grand jurors were drawn by the jury commissioners and not by the clerk of the Delaware circuit court. It appears from the plea that both jury commissioners were present and it must be assumed under section 1821, Burns' 1926, that the clerk was present at said drawing and had possession of the box. It...