Smith v. State

Decision Date29 May 1900
PartiesSMITH v. STATE.
CourtIndiana Appellate Court


Appeal from circuit court, Henry county; William O. Barnard, Judge.

Charles H. Smith was convicted of a violation of the liquor laws, and appeals. Affirmed.

Wm. A. Brown, for appellant. W. R. Steele, Pros. Atty., W. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.


The appellant was prosecuted and convicted, upon affidavit and information,for a sale without license of intoxicating liquor in less quantity than a quart. His application for a change of venue from the county, upon his own affidavit, was overruled. By express provision of the statute, such an application in other than capital cases is addressed to the discretion of the court. Section 1771, Horner's Rev. St. 1897 (section 1840, Burns' Rev. St. 1894). The action of the trial court upon the application, it is held, will not be ground for reversal where there does not appear to have been an abuse of discretion. Masterson v. State, 144 Ind. 240, 43 N. E. 138;Ransbottom v. State, 144 Ind. 250, 43 N. E. 218;Conrad v. State, 144 Ind. 290, 43 N. E. 221;Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465. See Gillett, Cr. Law, § 807. The affidavit of the appellant indicated as the ground for his statement that there was a local prejudice against him and his defense,-a hostility towards the crime with which he was charged, rather than towards him,-on the part of a class of persons called “temperance people,” who instigated prosecutions against the appellant, and by resolution at their meeting, and by publications in newspapers, secured the presence at the trial of a number of “ladies and gentlemen,” who do not appear to have sought or to have purposed to take the law into their own hands, but who were merely seeking the orderly and regular enforcement of the law through the court. It does not appear that the members of the organization were not what they were called in one of the newspapers, “substantial citizens,” or that those of them who were in court, in the presence of the learned judge, were not persons of such character, or that they did not behave as such. The statute provides that every criminal action shall be tried publicly in the county in which the offense shall have been committed, except as otherwise provided. Though the affidavit indicated to the court that there were present persons who had been induced to come by the efforts and advertisements of a society organized to promote the enforcement of the law, yet the court saw who were there, and observed their demeanor, which does not appear to have been unbecoming or unfavorable to the unbiased course of justice. The people have a right, as against one accused of a crime, to be present in court, either on their own motion, or upon request, public or private, to witness, with becoming deference, the solemn administration of the laws, or of any particular law for the enforcement of which they may be especially solicitous; and we cannot reverse the judgment because of the action of the court in refusing a change of venue from the county without a plain indication of an abuse of sound discretion to the injury of the accused, which is not discovered in the case before us.

The cause was tried on the 10th of July, 1899, in the April term of the court. The court overruled the appellant's challenges for cause to four jurors severally, the cause being in each case that the juror had set upon a jury in that court within the preceding 12 months. The record showed that these jurors were members of the regular panel for the April term, 1899; that the court, believing that the business of the term was closed, had finally discharged the jury, and the jurors had drawn their pay, and had been told by the court that they would not be needed for the term; that thereafter the information in this cause was filed in the clerk's office, and thereupon the court put the cause at issue and set it down for trial on the 10th of July, 1899, the April term of the court being still in session; that thereupon the court directed the sheriff to notify the same jurors to attend the court on said day as jurors, and the jurors were present in obedience to that request. Three of the jurors so challenged were afterwards removed from the jury by the appellant's peremptory challenges, and the other one of said four was so challenged for cause after the appellant had exhausted his peremptory challenges, and said fourth juror served as such upon the trial. It is by statute made unlawful for any officer or officers, or jury commissioner or commissioners, charged with the selection of a panel of petit jurors, to select any person who has served as a juror in the circuit, superior, or criminal court of the county during the year immediately preceding such selection; and it is also unlawful for any officer of either of those courts to select as a talesman any person who has served as a juror in either of said courts during the year immediately preceding such selection; and, if any person be selected as such juror contrary to the statutory provisions, this is sufficient cause for challenge. The statute provides for the selecting and depositing in a box by the jury commissioners of the names of twice the number of qualified persons required for grand and petit jurors in all the courts of the county for all the terms thereof to commence within the next ensuing calendar year. The jurors of the regular panel are drawn by the clerk for service as jurors at the ensuing term, and the clerk is required to issue a venire for them as the court or the judge thereof in vacation may direct. After a petit jury has served four weeks during any term of court, the court may, in its discretion, discharge it, and direct the clerk to draw another petit jury, and summon the same. Sections 1450, 1451, 1452, Burns' Rev. St. 1894 (sections 1386, 1387, 1395, Horner's Rev. St. 1897). The jurors who were challenged by the appellant, as above stated, it must...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT