Reed v. State

• Decision Date: 17 February 1897
• Citation: 46 N.E. 135,147 Ind. 41
• Parties: REED v. STATE.
• Court: Indiana Supreme Court

147 Ind. 41

46 N.E. 135

REED

v.STATE.

Supreme Court of Indiana.

Feb. 17, 1897.

Appeal from circuit court, Elkhart county, H. S. Zook, Special Judge.

James Reed was convicted of burglary, and appeals. Affirmed.

Jonas O. Hoover and Chamberlain & Turner for appellantMiles R. McClaskey and Wm A. Ketcham, Atty. Gen., for the State.

HACKNEY, J.

The appellant was charged, by indictment in two counts, first with burglary, and second with larceny; and upon a trial by jury, before a special judge, he was convicted of burglary, as charged in said first count, and his punishment fixed at three years in the state's prison, and disfranchisement. Motions were made and overruled to quash the counts of the indictment jointly and severally, and the rulings are claimed to have been erroneous because of the failure, in the count for burglary, to describe the goods intended to be stolen as the same goods charged in the second count to have been stolen. Under section 1817, Rev. St. 1894 (section 1748, Rev. St. 1881), it has been properly held that such description is not required. McCollough v. State, 132 Ind. 427, 31 N. E. 1116. In case of the improper joinder of counts, and a conviction upon one count only, there is no error in such misjoinder. Myers v. State, 92 Ind. 390. Neither was it error to deny appellant's motion to require the appellee to elect upon which count the trial should proceed. Glover v. State, 109 Ind. 391, 10 N. E. 282; Myers v. State, supra; Short v. State, 63 Ind. 376;Mershon v. State, 51 Ind. 14;Griffith v. State, 36 Ind. 406.

In various forms, the question is presented as to the action of the trial court in sentencing the appellant in a room other than the usual public court room, and in thereafter passing upon the motion for a new trial in his absence. We suppose the first question is intended to find support in the thirteenth section of the bill of rights, which secures to an accused “the right to a public trial”; and we presume counsel had in view, with reference to the second of these questions, that provision of section 1855, Rev. St. 1894 (section 1786, Rev. St. 1881), that “no person prosecuted for any offense punishable * * * by confinement in the state prison * * * shall be tried unless personally present during the trial.” Either question presents the inquiry as to the force and meaning of the word “trial.” “The requirement of a public trial is for the benefit of the accused,-that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triors alive to a sense of their responsibility and the importance of their functions.” Cooley, Const. Lim. (5th Ed.) 380. Unless, therefore, the formal declaration of the sentence is a part of the trial, within the spirit or the letter of the bill of rights, as expressed, no error was committed. It has been held that the hearing of a motion to quash an indictment (Epps v. State, 102 Ind. 542, 1 N. E. 491), and the overruling of a motion for a new trial (People v. Ormsby, 48 Mich. 471, 12 N. W. 671), in the absence of the accused, were not parts of the trial, as contemplated by the statutory and constitutional rule. Numerous cases hold that questions of pleading do not relate to the trial. Blackstone's definition of “trial” is, the examination of the matter of fact in issue. Bl. Comm. 330. “In criminal law, an actual trial by jury; not the arraignment and pleadings preparatory thereto.” And. Law Dict. 1054; U. S. v. Curtis, 4 Mason, 236, Fed. Cas. No. 14,905. It is true, Bicknell's Criminal Practice (page 212) says the judgment should be pronounced in open court, and we think this is correct. It is said also in Sir Thomas Raymond's Reporter (page 68), “If H. be convicted upon a verdict upon an information or indictment, his fine ought to be set in open court, and not privately in the judge's chambers.” The setting of the fine, however, is the act of the trior, under our system, and should be done in the same public manner in which the evidence is heard. Ordering the judgment or pronouncing the sentence is not a part of the trial, and in this case was but the formal declaration of the result of the trial. While we would be slow to lend our sanction to such secrecy and exclusion in the proceedings of a court, in administering the criminal laws, as to suppress its sentences and judgments from the public, or to deny the friends of an accused the right to be present on such an occasion, it does not appear in this case that the court was not regularly in session, with proper notice of the place of its sitting, and with full opportunity for interested persons to be present. It many times happens that, from special emergency, steps are taken in a cause before a special judge, as in this case, while another cause is on trial, and rendering it necessary to occupy a room in the court house other than the court room. If, in doing so, no legal or constitutional right of the accused is infringed, and it is manifest that no substantial injury has been done, error is not available, if it exists. Neither does it appear from the record or briefs of counsel that the appellant was prejudiced by the action of the court in rendering judgment before the motion for a new trial was filed and passed upon. Calvert v. State, 91 Ind. 473.

There is conflict in the evidence, and the first and second causes for a new trial-that the verdict is not supported by the evidence, and that it is contrary to the evidence-must fail, since we are not permitted to pass upon conflicts in the evidence, and it is not claimed that no evidence supports the verdict.

There are over 50 other causes for a new trial assigned in the motion, some of which are not argued, some are expressly waived, and some involve questions already passed upon. Those not so disposed of relate to (1) alleged misconduct of the prosecuting attorney in the argument; (2) misconduct of jury in reading, during deliberation upon their verdict, a newspaper containing severe strictures upon the appellant and his defense; (3) instructions given by the court; and (4) the admission of evidence objected to. Of the first of these, it is complained that the prosecuting attorney commented upon the wealth of a witness for the state, as a reason for giving credit to his evidence. Various objections were urged to such comment, and the attorney for the appellant requested the court to instruct the prosecutor to desist from further statements of like character, and to require retraction of said comment by him. The exception taken was “to the ruling of the court against the request” so made. There was some evidence before the jury of extensive property ownership by the witness, probably justifying comment, and it was an inference for the jury as to whether he was credible. The exceptionreserved was much narrower than the objection made below anddiscussed here. A particular statement was before the court; it wasnot a question of instruction as to future arguments of likecharacter; and while within the province of the trial court towithdraw from the jury an improper argument by counsel, it is notthe court's duty to require the attorney to retract an improperstatement We observe no prejudice to the rights of the appellant in the inference suggested by the prosecutor, and certainly none within the scope of the exception reserved.

Complaint is also made of the comment of counsel for the state upon the length of time consumed by the defense in the trial, and of a comparison thereof with the time occupied in another trial. While the fact of such other trial having taken place was before the jury, the duration of that trial was not...