Silverman v. State, No. 24706.

Docket NºNo. 24706.
Citation199 Ind. 225, 156 N.E. 549
Case DateMay 20, 1927
CourtSupreme Court of Indiana

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.

[156 N.E. 550]


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...

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6 practice notes
  • Whitaker v. State, No. 29712
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1960
    ...Ind. 663, 141 N.E. 514; McKinney v. [240 Ind. 683] People (1845), 7 Ill. 540, 43 Am.Dec. 65, see note p. 80.' Silverman v. State, 1927, 199 Ind. 225, 230, 156 N.E. 549. Page 216 The reason for this rule has not changed and we see no reason to overthrow it. The court erred in permitting the ......
  • Hawkins v. State, No. 27534.
    • United States
    • Indiana Supreme Court of Indiana
    • November 5, 1941
    ...cites only two cases. The first, Hicks v. State, 1927, 199 Ind. 401, 156 N.E. 548, is not in point. The other, Silverman v. State, 1927, 199 Ind. 225, 156 N.E. 549, is distinguishable. The court therein recognized that the exercise of the power to call a special venire ‘requires that the co......
  • Lowery v. State, No. 1280S448
    • United States
    • Indiana Supreme Court of Indiana
    • May 5, 1982
    ...all kinds the jury could not be separated once the trial had begun without the consent of the defendant. See, Silverman v. State, (1927) 199 Ind. 225, 156 N.E. 549; Faulkner v. State, (1923) 193 Ind. 663, 141 N.E. 514; Anderson v. State, (1867) 28 Ind. 22; Quinn v. State, (1860) 14 Ind. 589......
  • Hicks v. State, No. 25223.
    • United States
    • Indiana Supreme Court of Indiana
    • May 26, 1927
    ...rule of practice in civil cases must be applied in criminal prosecutions, citing section 2406, Burns' 1926, wherein it is provided that: [156 N.E. 549] “In all criminal cases where no special provision has been made in this act, the rules of pleading and practice in civil actions shall gove......
  • Request a trial to view additional results
6 cases
  • Whitaker v. State, No. 29712
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1960
    ...Ind. 663, 141 N.E. 514; McKinney v. [240 Ind. 683] People (1845), 7 Ill. 540, 43 Am.Dec. 65, see note p. 80.' Silverman v. State, 1927, 199 Ind. 225, 230, 156 N.E. 549. Page 216 The reason for this rule has not changed and we see no reason to overthrow it. The court erred in permitting the ......
  • Hawkins v. State, No. 27534.
    • United States
    • Indiana Supreme Court of Indiana
    • November 5, 1941
    ...cites only two cases. The first, Hicks v. State, 1927, 199 Ind. 401, 156 N.E. 548, is not in point. The other, Silverman v. State, 1927, 199 Ind. 225, 156 N.E. 549, is distinguishable. The court therein recognized that the exercise of the power to call a special venire ‘requires that the co......
  • Lowery v. State, No. 1280S448
    • United States
    • Indiana Supreme Court of Indiana
    • May 5, 1982
    ...all kinds the jury could not be separated once the trial had begun without the consent of the defendant. See, Silverman v. State, (1927) 199 Ind. 225, 156 N.E. 549; Faulkner v. State, (1923) 193 Ind. 663, 141 N.E. 514; Anderson v. State, (1867) 28 Ind. 22; Quinn v. State, (1860) 14 Ind. 589......
  • Hicks v. State, No. 25223.
    • United States
    • Indiana Supreme Court of Indiana
    • May 26, 1927
    ...rule of practice in civil cases must be applied in criminal prosecutions, citing section 2406, Burns' 1926, wherein it is provided that: [156 N.E. 549] “In all criminal cases where no special provision has been made in this act, the rules of pleading and practice in civil actions shall gove......
  • Request a trial to view additional results

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