Rudd v. State, No. 28768

Docket NºNo. 28768
Citation231 Ind. 105, 107 N.E.2d 168
Case DateAugust 04, 1952
CourtSupreme Court of Indiana

Page 168

107 N.E.2d 168
231 Ind. 105
RUDD

v.
STATE.
No. 28768.
Supreme Court of Indiana.
Aug. 4, 1952.

[231 Ind. 107] 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.

Page 169

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[231 Ind. 108] 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 [231 Ind. 109] 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

Page 170

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[231 Ind. 110] rights of appellant, that the acts or omissions were mere irregularities, and that, therefore, the trial court...

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23 practice notes
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...or corruption entered into their selection in any manner. The situation is entirely different from that disclosed in Rudd v. State, 1952, 231 Ind. 105, 107, N.E.2d 168. The challenge to the array was properly 'Malice may be presumed from the intentional use of a deadly weapon in such a mann......
  • Allen v. State, No. 40728
    • United States
    • United States Court of Appeals (Georgia)
    • July 7, 1964
    ...537; Zimmerman v. State, 191 Md. 7, 59 A.2d 675. The unlawful selection of juries is, of course, more than an irregularity. Rudd v. State, 231 Ind. 105, 107 N.E.2d 168, 171. '[G]rand jurors who have not been lawfully impaneled or sworn have no more authority to find bills of indictment than......
  • Flowers v. State, No. 29336
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1956
    ...was one hour earlier than it should have been. This is not sufficient to hold it an illegal grand jury. The facts in Rudd v. State, 1952, 231 Ind. 105, 107 N.E.2d 168, where we held a plea in abatement good, furnish no basis for a reversal of this The motion for a new trial challenges the s......
  • Hillman v. State, No. 29174
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1954
    ...of appellant's brief as required by Rule 2-17(e) and (f) of this court and it must, therefore, be deemed waived. Rudd v. State, 1952, 231 Ind. 105, 113, 107 N.E.2d I will now consider the points advanced by the appellant in support of his assignment of errors. Fourth: Appellant discusses fo......
  • Request a trial to view additional results
23 cases
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...or corruption entered into their selection in any manner. The situation is entirely different from that disclosed in Rudd v. State, 1952, 231 Ind. 105, 107, N.E.2d 168. The challenge to the array was properly 'Malice may be presumed from the intentional use of a deadly weapon in such a mann......
  • Allen v. State, No. 40728
    • United States
    • United States Court of Appeals (Georgia)
    • July 7, 1964
    ...537; Zimmerman v. State, 191 Md. 7, 59 A.2d 675. The unlawful selection of juries is, of course, more than an irregularity. Rudd v. State, 231 Ind. 105, 107 N.E.2d 168, 171. '[G]rand jurors who have not been lawfully impaneled or sworn have no more authority to find bills of indictment than......
  • Flowers v. State, No. 29336
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1956
    ...was one hour earlier than it should have been. This is not sufficient to hold it an illegal grand jury. The facts in Rudd v. State, 1952, 231 Ind. 105, 107 N.E.2d 168, where we held a plea in abatement good, furnish no basis for a reversal of this The motion for a new trial challenges the s......
  • Hillman v. State, No. 29174
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1954
    ...of appellant's brief as required by Rule 2-17(e) and (f) of this court and it must, therefore, be deemed waived. Rudd v. State, 1952, 231 Ind. 105, 113, 107 N.E.2d I will now consider the points advanced by the appellant in support of his assignment of errors. Fourth: Appellant discusses fo......
  • Request a trial to view additional results

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