Sisk v. State

• Citation: 232 Ind. 214,110 N.E.2d 627
• Decision Date: 20 February 1953
• Docket Number: No. 28821,28821
• Parties: SISK v. STATE.
• Court: Supreme 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.

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.

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 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; 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, 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 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.'

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 abatement to challenge individual grand jurors. Williams v. State, 1919, 188 Ind. 283, 123 N.E. 209; Pontarelli v. State, 1932, 203 Ind. 146, 176 N.E. 696; Mack v. State, 1932, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349; State ex rel. Reichert v. Youngblood, 1947, 225 Ind. 129, 73 N.E.2d 174.

The plea in abatement further failed to show that the body as constituted was composed of any persons not examined and qualified to sit as grand jurors It failed to show that any of the grand jurors were subject to any statutory causes for challenge. Anderson v. State, 1941, 218 Ind. 299, 32 N.E.2d 705. There was no charge of fraud or corruption, and no showing was made that a substantial right of appellant had been prejudiced. Weer v. State, 1941, 219 Ind. 217, 36 N.E.2d 787, 37 N.E.2d 537.

Appellant's failure to assert in his plea in abatement any statutory grounds for challenge to any of the grand jurors, or to the grand jury, was grounds for the sustaining of the demurrer to the plea in abatement. See Gilmore v. State, 1951, 229 Ind. 359, 98 N.E.2d 677. The failure to take appellant before the grand jury was not a violation of the Fourteenth Amendment to the Constitution of the United States or of Article 1, Section 12, of the Constitution of Indiana, because the right to appear before a grand jury in Indiana is a statutory right, and the proceedings before a grand jury is not a trial. Adams v. State, 1938, 214 Ind. 603, 17 N.E.2d 84, supra.

Appellant was afforded due process, and this constitutional right was satisfied when he was present in court when convicted of a crime after having been fairly apprised of the charges against him, and after a fair trial in accordance with constitutional procedural safeguards. Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Humphrey v. Smith, 1949, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986; Blood v. Hunter, 10 Cir., 1945, 150 F.2d 640.

Appellant contends as a further ground for his plea in abatement to the indictment that he was never accorded a preliminary hearing in the City Court of Evansville when taken before it although he requested such hearing.

Appellee, having filed a demurrer to the plea in abatement, admitted these facts well pleaded. Turpin v. State, 1934, 206 Ind. 345, 189 N.E. 403.

The plea in abatement shows that appellant was bound over to the Circuit Court to await action of the grand jury. The grand jury indicted appellant. Appellant was represented by counsel in the trial of his case. He was tried by jury and found guilty. He was...