Smith v. State
| Decision Date | 29 October 1919 |
| Docket Number | 23,506 |
| Citation | 124 N.E. 698,188 Ind. 501 |
| Parties | Smith v. State of Indiana |
| Court | Indiana Supreme Court |
From Fulton Circuit Court; Smith N. Stevens, Judge.
Prosecution by the State of Indiana against Henry Smith. From a judgment of conviction, the defendant appeals.
Affirmed.
William J. Reed and J. H. Bibler, for appellant.
Ele Stansbury, Attorney-General, and Dale F. Stansbury, for the state.
In this prosecution of appellant upon an indictment for assault and battery with intent to kill, the court sustained a demurrer to appellant's plea in abatement.
The plea alleged that one member of the grand jury regularly called was excused, and that a substitute member was, at the direction of the court, called by the sheriff from among the bystanders, and was sworn as a member of the jury. A jury so organized is irregular and cannot return an indictment which will stand when properly attacked. See Stipp v. State (1917), 187 Ind. 211, 118 N.E. 818. A plea in abatement setting up such facts should be sustained, provided that it discloses that the defendant has not by his conduct, or by omission, waived the defect.
Such a plea must anticipate and exclude all such supposable matter as would, if alleged by the opposite party, defeat the plea. Rush v. Foos Mfg. Co. (1898), 20 Ind.App 515, 519, 51 N.E. 143; State v. Comer (1901), 157 Ind. 611, 614, 62 N.E. 452; C. Callahan Co. v. Wall Rice, etc., Co. (1909), 44 Ind.App 372, 89 N.E. 418; Needham v. Wright (1895) 140 Ind. 190, 39 N.E. 510.
This plea in abatement was filed more than eighteen months after the indictment was returned, and after six terms of the circuit court had passed. The record discloses that the defendant had prior to the filing of his plea asked and been granted several continuances. If it be that the court cannot for the purpose of aiding or defeating a plea of abatement look outside of the plea, and to the record, or take judicial knowledge of the record, which proposition we do not here decide, still the fact that the record discloses such requests shows that the supposition that he had requested such rulings is well justified; and if the supposable requests were made with knowledge, actual or constructive, of facts which would make the indictment subject to successful attack, then such supposable requests constituted a waiver of the right to make such attack.
Appellant evidently recognized this as the correct rule by offering ignorance as an excuse for his delay, and for that purpose he alleged in his plea that he was a resident of and was in the State of Iowa when the grand juror was substituted, and when the grand jury made its investigation and returned the indictment, and had no knowledge of the fact of such substitution, or method of such substitution, or of the fact that the grand jury was investigating any charge against him. As a further excuse, the plea further alleges that an attorney living at Knox, Indiana, who represented him in defending against said indictment, had no knowledge of such facts until the day of April, 1919. The...
To continue reading
Request your trial