Rudd v. State, 28768

• Decision Date: 04 August 1952
• Docket Number: No. 28768,28768
• Citation: 231 Ind. 105,107 N.E.2d 168
• Parties: RUDD v. STATE.
• Court: Indiana Supreme Court

Page 168

107 N.E.2d 168

231 Ind. 105

RUDD v. STATE.

No. 28768.

Supreme Court of Indiana.

Aug. 4, 1952.

Clarence E. Benadum, Frederick F. McClellan, Jr., Muncie, for appellant.

J. Emmett McManamon, Atty. Gen., John Ready O'Connor, William T. McClain, Deputies, for appellee.

EMMERT, Judge.

The grand jury of Madison County, for the April 1949 term, returned an indictment in three counts charging appellant with murder in the second degree, voluntary manslaughter and involuntary manslaughter. Appellant seasonably filed a plea in abatement to the indictment, wherein he charged violations of several statutes prescribing the duties of the jury commissioners and the clerk. After a hearing the trial court overruled the plea in abatement, and appellant entered a plea of not guilty to each count of the indictment. Appellant was then tried by a jury, which returned a verdict that he was guilty of murder in the second degree, and from the judgment on this verdict this appeal is prosecuted.

The only issue properly presented here is the legality of the grand jury that indicted appellant. 'It is well settled that this court will indulge all reasonable presumption in favor of the regularity and validity of proceedings in the lower courts, and will not reverse a judgment unless the record affirmatively shows that material errors intervened in such proceedings.' Ford v. State, 1887, 112 Ind. 373, 376, 14 N.E. 241, 243. Ewbank, Ind.Cr.Law (2d Ed.) § 198, pp. 121, 122.

We have carefully examined the record of all the evidence heard on the plea in abatement, and from the uncontroverted evidence it appears that clear statutory provisions were disregarded concerning the selection and placing of names in the jury box, the security provisions for keeping the jury box locked, the drawing of names for jury service, and the calling of such persons for grand jury service.

Charles C. Harrold, Clerk of the court, and Ray Houston, a jury commissioner, were members of the same political party, and Vernet Turner, the other jury commissioner, was not an 'adherent of the same political party as the clerk.' Turner was appointed commissioner in February, 1948, but he was never instructed by the court as to his duties as required by § 4-3301, Burns' 1946 Replacement. There is some dispute in the evidence as to why or whose fault it was that Turner did not have the key to the jury box as required by § 4-3304 and § 4-3305, Burns' 1946 Replacement, ¹ but it clearly appears from the evidence that he did not begin keeping the key in his possession until after the return of the indictment against appellant on April 22, 1949. Before this time the clerk had the key. The jury box was not emptied during the last term of court of 1948 before more names were placed therein for jury service for the next calendar year, as required by § 4-3304, Burns' 1946 Replacement. State v. Bass, 1936, 210 Ind. 181, 184, 1 N.E.2d 927. Both jury commissioners obtained the names from the tax schedules in the county assessor's office, but neither did so in the presence of the other at any time, and it must be inferred that these names were placed in the jury box by each without the other being present. This was a violation of § 4-3304, Burns' 1946 Replacement. The jury commissioner Turner was not present nor was he notified to be present on March 28, 1949, when the grand jury for the April term was drawn from the jury box. ² The order book record disclosed that the name of Walter Stohler was drawn second from the box for the April term grand jury, but he was never called nor did he ever serve as a grand juror at the April term nor at any other time in 1949. ³ At various times if the clerk or a jury commissioner knew a name as drawn from the box was of a deceased person, or had a guardian appointed for him or was insane, by mutual agreement such name was stricken off the list as drawn without any court order being had. There was no exclusion of members of the Negro race for jury service, nor was there any bad faith, fraud or corruption in any of the acts or omissions of the clerk or either jury commissioner.

The state's position is that none of the acts or omissions were done in bad faith or harmful to the substantial rights of appellant, that the acts or omissions were mere irregularities, and that, therefore, the trial court properly refused to abate the indictment. The state insists that § 4-3321, Burns' 1946 Replacement, justifies the action of the trial court. This section in part provides:

'* * * This act shall be construed liberally, to the effect that no indictment shall be quashed, and no trial, judgment, order or proceeding shall be reversed or held invalid on the ground that the terms of this act have not been followed, unless it shall appear that such noncompliance was either in bad faith or was objected to promptly upon discovery and was probably harmful to the substantial rights of the objecting party.' (Section 2, Ch. 156, Acts 1937.)

However, it should be noted that this section only applies to Chapter 156 of the 1937 Acts, and the only section of this act involved in this appeal concerns the time, manner, method, place, recording, and summonsing of the grand and petit juries in such numbers as may have been fixed by order of court. Since no bad faith was involved, and since appellant did promptly object by proper procedure to the statutory violations, we must determine whether the violations of § 4-3320, Burns' 1946 Replacement, were probably harmful to the substantial rights of appellant. Unfortunately, we are not able to obtain much help from the precedents of this state, since each case was decided with reference to its particular facts, and the language of the opinions must be understood in the light of the particular facts involved.

It is difficult to imagine that the General Assembly, after prescribing the procedure to be followed by § 4- 3320, Burns' 1946 Replacement, to insure judicial fairness in drawing and calling grand and petit juries, then by § 4-3321, Burns' 1946 Replacement, intended to say that none of these requirements mean anything for an accused unless he could prove at a hearing on his plea in abatement that he was innocent and ought not have been indicted in the first place. It seems to us that the proper construction is to hold that an accused, regardless of his guilt or innocence, has the right to insist that there be substantial compliance with § 4-3320, Burns' 1946 Replacement, and if these provisions are not substantially complied with, his substantial rights are harmed.

In Anderson v. State, 1941, 218 Ind. 299, 32 N.E.2d 705, this court, after a review of the authorities, and after noting the provisions of Chapter 156 of the 1937 Acts, held that appellant's substantial rights had not been violated by failure to properly enter and certify the names on the order book, and to give two days' notice of one drawing. ⁴ The opinion quoted with approval the language of Judge Mitchell in Cooper v. State, 1889, 120 Ind. 377, 379, 22 N.E. 320, 321,...