Silverman v. State

• Decision Date: 20 May 1927
• Docket Number: No. 24706.,24706.
• Citation: 199 Ind. 225,156 N.E. 549
• Parties: SILVERMAN v. STATE.
• Court: Indiana Supreme Court

199 Ind. 225

156 N.E. 549

SILVERMAN

v.STATE.

No. 24706.

Supreme Court of Indiana.

May 20, 1927.

Appeal from Vanderburg Circuit Court; Philip C. Gould, Judge.

Abe Silverman was convicted of transporting intoxicating liquor, and he appeals. Reversed and remanded.John W. Spencer, Jr., of Evansville, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Dep. Atty. Gen., for the State.

TRAVIS, J.

Two questions are presented by this appeal: (1) May the judge, in the proceedings in a criminal cause, before trial, within his sound judicial discretion, order the sheriff to subpœna 30 citizens who are qualified to serve as jurors, outside the courthouse, on the third day before the day on which such cause has been set for trial, such citizens so subpœnaed to be used to fill vacancies in the regular panel of the traverse jury of the court, as such vacancies occur, when it is shown by the first part of the same entry that the court overruled defendant's verified motion, wherein and whereby he prayed the court to direct the clerk of the court to draw from the box of names of jurors 25 names of persons to serve as a special venire in this cause, and stated his reason for such request; and (2) the legal right of the court to permit the trial jury to separate upon adjournment of the court, during the progress of the trial of the cause, which was upon a charge of the commission of a felonious offense, after the court had overruled the motion that “the defendant requests that the jury which is sworn to try this cause be not separated during the trial of this cause, and the defendant objects to any separation of the jury herein during the trial of this cause.”

The offense charged is that defendant did, on July 17, 1923, unlawfully and feloniously transport intoxicating liquor in a certain vehicle, to wit, an automobile. Acts 1923, p. 108, c. 34.

The error presented on appeal is based upon the action of the trial court overruling defendant's motion for a new trial. The motion presented the alleged irregularity and error of the court which involve the two questions hereinbefore stated.

[1] Appellant, as defendant, on the fifth day before the date of the trial of the cause as ordered by the court, filed his verified motion, praying the court to direct the clerk of the court to draw from the box of names of jurors 25 names of persons to serve as a special venire in this cause, for the reasons that there would be numerous challenges of jurors, because of the wide publicity of the case throughout the county, and because it had been the practice and custom of the sheriff to subpœna divers persons in the county to appear in the court on the days when criminal causes were to be tried, for the purpose of creating and furnishing a selected class of bystanders, from which to call persons as needed to file vacancies caused by challenges, or by excused jurors. This motion was overruled by the court the third day before the day theretofore set for the cause to be tried; and at the same time, as appears by the same judicial entry, the court ordered the sheriff “to cause subpœnas to be issued for 30 reliable and reputable citizens of” the county, who are “qualified to serve as jurors in” the trial of this “cause,” and to call such persons “outside the courthouse, to be and appear in this court at 9 o'clock a. m. Wednesday, March 12, 1924, and to call such persons to fill vacancies in the regular panel of the traverse jury of this court, as such vacancies occur.”

Whenever the court shall be of the opinion that, by reason of numerous challenges which are likely to be made to jurors, a special venire should issue for jurors, and the selection of the names of persons to compose such special venire shall by the order of the court be drawn by the clerk from the box which contained the separate slips of paper upon which the names of persons are written, to be withdrawn from such box to serve as jurors (section 1825, Burns' 1926), the exercise of power by the court by this statute requires that the court act within the confines of a sound judicial discretion. At this point in this case the court is not confronted with the exercise of its power to order the impaneling of a special jury for the trial of this cause (section 1826, Burns' 1926); neither is it confronted with the necessity for impaneling a traverse jury from the bystanders, because the proper officers have failed and refused to draw and impanel a traverse jury as provided by law (section 1824, Burns' 1926); neither is it confronted with the necessity to instruct the sheriff to fill a vacancy on the regular panel of the traverse jury caused by any such juror being challenged peremptorily, or for cause (sections 579, 580, 2259, Burns' 1926).

At this point, to wit, the third day prior to the day set for trial of this cause, in the proceedings hereof, the only matter before the court was to render its decision on defendant's motion for a special venire, unless the court had the right to anticipate the needs of a special venire, which in the court's judicial discretion it was deemed necessary to have to expedite the trial of the cause, which, as hereinbefore stated, it is unnecessary to determine here. The thing requested by the defendant and refused by the court, and the thing done by the...