Sisk v. State, No. 28821

Docket NºNo. 28821
Citation232 Ind. 214, 110 N.E.2d 627
Case DateFebruary 20, 1953
CourtSupreme Court of Indiana

Page 627

110 N.E.2d 627
232 Ind. 214
SISK

v.
STATE.
No. 28821.
Supreme Court of Indiana.
Feb. 20, 1953.

[232 Ind. 216]

Page 628

Theodore Lockyear, Sr., Russell S. Armstrong, Evansville, for appellant.

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

JASPER, Judge.

Appellant was charged by indictment, under § 10-3401, Burns' 1942 Replacement, with murder in the first degree. A motion to quash was filed by appellant and overruled. Thereafter a plea in abatement was filed, to which appellee filed a demurrer. The trial court sustained the demurrer. A plea of not guilty was entered. Trial was had before a jury and a verdict of guilty of first degree murder was returned. Judgment was entered on the verdict and appellant was sentenced to life imprisonment.

Appellant first contends that the trial court erred in sustaining appellee's demurrer to the plea in abatement. Under the plea in abatement, appellant asserts that he was incarcerated in the Vanderburgh County Jail prior to the impaneling of the grand jury which indicted him; and that, under § 9-811, Burns' 1942 Replacement, he was denied the substantial right of appearing before the court to challenge members of the grand jury, and that, because of the denial of this right, his statutory and constitutional rights were invaded. As a further ground, under the plea in abatement, appellant contends that he was denied the right to a preliminary hearing, and therefore his conviction is invalid.

[232 Ind. 217] Section 9-811, Burns' 1942 Replacement, provides as follows:

'A person held to answer a charge for a felony or misdemeanor may challenge an individual grand juror before the jury is sworn, for one or more of the following causes only:

'First. That such individual grand juror is a minor.

'Second. That he is not a freeholder or a householder of the county.

'Third. That he is an alien.

'Fourth. That he is insane.

'Fifth. That he is the prosecuting witness upon a charge against the defendant.

'Sixth. That he is a witness on the part of the prosecution.

'Seventh. That such a state of mind exists on his part in reference to the party charged that he can not act impartially and without prejudice to the substantial rights of the challenger.

'Eighth. That he holds his place in the grand jury by reason of the corruption

Page 629

of the officer who selected and impaneled the grand jury.

'Ninth. That he is in the habit of becoming intoxicated.

'Tenth. That he has requested, or caused any officer or his deputy to be requested, to place him upon the grand jury.'

Section 9-812, Burns' 1942 Replacement, provides as follows:

'Such challenge may be oral. If the facts alleged be denied, the challenge must be tried at once by the court, and the juror challenged may be examined as a witness to prove or disprove the challenge, and he is bound to answer every question pertinent to the inquiry therein. The challenger, and other witnesses then present, may also be examined on either side, and the rules of evidence applicable to the trial of other issues shall govern the admission or exclusion of testimony on the trial of the challenge; [232 Ind. 218] but the matter must be summarily heard, and the court must allow or disallow the challenge.'

It is well settled that the proceedings of a grand jury is not a trial. Adams v. State, 1938, 214 Ind. 603, 17 N.E.2d 84, 118 A.L.R. 1095.

Appellant asserts that the failure to take him before the grand jury prior to their being sworn was a violation of his constitutional rights under Article 1, Sections 12 and 13, of the Constitution of Indiana, and the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

The Fifth and Sixth Amendments to the Constitution of the United States apply only to the Federal Government, and do not apply to state governments. Hanks v. State, 1948, 225 Ind. 593, 76 N.E.2d 702; Gaines v. Washington, 1928, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Brock v. North Carolina, 73 S.Ct. 349.

Article 1, Section 13, of the Constitution of Indiana, provides:

'In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.'

This section does not apply to the rights of an accused to challenge the polls in impaneling a grand jury. Appellant fails to show that any of his rights were contravened under this section.

Appellant's plea in abatement does show that he appeared in the City Court of Evansville on September 12, [232 Ind. 219] 1950, where an affidavit charging him with the crime of murder was filed, and that the City Court bound him over to the Circuit Court to await the action of the grand jury. Appellant was in City Court while this proceeding took place. On September 18, 1950, the grand jury was impaneled and sworn. Appellant was taken to the court house, in a room adjacent to the court room, where he remained while the grand jury was impaneled, sworn, and instructed by the court.

The above facts show that appellant knew he was being held to answer a charge before the grand jury. The right under § 9-811, Burns' 1942 Replacement, is permissive and may be waived by appellant. Appellant, knowing he was held to answer a charge before the grand jury, failed to make any request to appear before the court at the impaneling of the grand jury. The failure to request permission to so appear was a waiver of his right to do so. In 38 C.J.S., Grand Juries, § 28e, page 1017, it is said:

'The right to be present at the impaneling of the grand jury and to make a challenge either to the polls or to the array is held to be a substantial right, the denial of which by the court renders the grand jury incompetent to sit on the case, and it has been held immaterial that the challenge of accused might have proved ineffectual. However, in the absence of express

Page 630

statutory provision to the contrary, it is generally held that there is no absolute right on the part of an accused person absent or in confinement to be brought into court for the purpose of challenging a grand jury, and that failure on his part to ask permission to appear and make his challenge at the proper time is a waiver of the privilege, and this is especially true where it is not shown that a valid cause of challenge existed, or that he was prejudiced by his absence.

'Objection that one was not allowed to be present while the grand jury that found an indictment against him was being impaneled, and to challenge grand jurors, is waived by a plea of not guilty.'

[232 Ind. 220] It is said in 24 Am.Jur., § 28, pp. 852, 853, Grand Jury:

'Objections to the legality of the organization of the grand jury may be made by any one under prosecution for an offense about to be submitted to the consideration of the jury. It has been held that if the prisoner is denied the privilege of making such objection, the denial constitutes ground for a new trial. But the prisoner must apply for leave or request permission to appear and make objection. It is not the duty of the court to bring him into court for the purpose of exercising this privilege.'

Appellant having waived his right to appear in court to challenge the poll, could not thereafter file a plea in...

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21 practice notes
  • Stearsman v. State, No. 29373
    • United States
    • Indiana Supreme Court of Indiana
    • June 7, 1957
    ...Connell v. State, 1939, 215 Ind. 318, 322, 19 N.E.2d 267; Arthur v. State, 1949, 227 Ind. 493, 499, 86 N.E.2d 698; Sisk v. State, 1953, 232 Ind. 214, 225, 226, 110 N.E.2d 627, certiorari denied 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360; Havener v. State, 1955, 234 Ind. 148, 125 N.E.2d 25, 27;......
  • Owen v. State, No. PS
    • United States
    • Indiana Supreme Court of Indiana
    • November 2, 1978
    ...as a premise to reversal of a conviction. Frisbie v. Collins, (1952) 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Sisk v. State, (1953) 232 Ind. 214, 110 N.E.2d Appellant next argues that it was error to have all prospective jurors in the courtroom during selection of the jury. He [269 Ind. 52......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...jury, he waives his right to challenge the jury. King v. State, (1957) 236 Ind. 268, 272-73, 139 N.E.2d 547, 549-50; Sisk v. State, (1953) 232 Ind. 214, 219, 110 N.E.2d 627, 629, Cert. denied (1953) 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360. Compare McFarland v. State, (1978) Ind., 381 N.E.2d......
  • Sisk v. Lane, No. 14382.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 1, 1964
    ...of murder in Indiana in 1951 and sentenced to life imprisonment. His conviction was affirmed by the Indiana Supreme Court, Sisk v. State, 232 Ind. 214, 110 N.E.2d 627 (1953), and certiorari was denied by the United States Supreme Court. 346 U.S. 838, 74 S.Ct. 61, 98 L.Ed. 360 (1953). He fil......
  • Request a trial to view additional results
21 cases
  • Stearsman v. State, No. 29373
    • United States
    • Indiana Supreme Court of Indiana
    • June 7, 1957
    ...Connell v. State, 1939, 215 Ind. 318, 322, 19 N.E.2d 267; Arthur v. State, 1949, 227 Ind. 493, 499, 86 N.E.2d 698; Sisk v. State, 1953, 232 Ind. 214, 225, 226, 110 N.E.2d 627, certiorari denied 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360; Havener v. State, 1955, 234 Ind. 148, 125 N.E.2d 25, 27;......
  • Owen v. State, No. PS
    • United States
    • Indiana Supreme Court of Indiana
    • November 2, 1978
    ...as a premise to reversal of a conviction. Frisbie v. Collins, (1952) 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Sisk v. State, (1953) 232 Ind. 214, 110 N.E.2d Appellant next argues that it was error to have all prospective jurors in the courtroom during selection of the jury. He [269 Ind. 52......
  • Porter v. State, No. 177S14
    • United States
    • Indiana Supreme Court of Indiana
    • July 3, 1979
    ...jury, he waives his right to challenge the jury. King v. State, (1957) 236 Ind. 268, 272-73, 139 N.E.2d 547, 549-50; Sisk v. State, (1953) 232 Ind. 214, 219, 110 N.E.2d 627, 629, Cert. denied (1953) 346 U.S. 838, 74 S.Ct. 60, 98 L.Ed. 360. Compare McFarland v. State, (1978) Ind., 381 N.E.2d......
  • Sisk v. Lane, No. 14382.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 1, 1964
    ...of murder in Indiana in 1951 and sentenced to life imprisonment. His conviction was affirmed by the Indiana Supreme Court, Sisk v. State, 232 Ind. 214, 110 N.E.2d 627 (1953), and certiorari was denied by the United States Supreme Court. 346 U.S. 838, 74 S.Ct. 61, 98 L.Ed. 360 (1953). He fil......
  • Request a trial to view additional results

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