Sparks v. State

• Decision Date: 27 December 1972
• Docket Number: No. 1--972A68,1--972A68
• Citation: 154 Ind.App. 691,290 N.E.2d 793
• Parties: Charles Eugene SPARKS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 793

290 N.E.2d 793

154 Ind.App. 691

Charles Eugene SPARKS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--972A68.

Court of Appeals of Indiana, First District.

Dec. 27, 1972.

Phillip W. Brown, Shelbyville, for appellant.

Jerry J. Lux, Shelbyville, Theodore L. Sendak, Atty. Gen., Lynda F. Huppert, Deputy Atty. Gen., for appellee.

ROBERTSON, Presiding Judge.

The defendant-appellant, Sparks, was convicted by a jury of first degree burglary, automobile banditry, and theft. The sole issue raised on appeal is whether or not the defendant was denied a fair trial by reason of a conversation between the court bailiff and members of the jury during the jurors' deliberations.

The facts, which are not disputed, can be summarized as follows: a few hours after the jury had begun deliberations, the bailiff was called by a juror to the door of the jury room. The juror stated to the bailiff that they wanted to be instructed as to the definition of 'disfranchisement' and what they, as jurors, were required to do with respect to disfranchisement. The bailiff explained to all the members of the jury that only the judge could re-read the instructions to the jury. The juror, however, persisted in requesting an explanation of disfranchisement, and the jury's duties in regard thereto. The bailiff relented and advised the jury, based on his understanding of the term, that disfranchisement meant that the defendant could not vote or hold public office. The juror then asked the bailiff whose duty it was to determine the period of disfranchisement, and the bailiff replied it was the jury's duty to determine the matter. The final question asked of the bailiff regarded when the period of disfranchisement would begin. The bailiff replied that it would begin right away.

The conversation between the bailiff and the jury was set out in defendant's affidavit in support of the motion to correct errors which was sworn to by defendant's attorney who overheard the substance of the conversation.

We are of the opinion that the conversation between the bailiff and the jury constitutes reversible error. The statutory prohibition of such conduct reads:

'. . . the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer, who must be sworn by the clerk to keep them together in some private and convenient place, and furnish them food as directed by the court, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court, when so agreed, or when ordered by the court . . ..' IC 35--1--37--4, Ind.Ann.Stat. § 9--1810 (Burns 1956).

The scope of the complained of conversation obviously goes beyond the prescribed bounds of the above quoted statute.

Additionally, it has been held to be reversible error to explain the probability of parole, Deming v. State (1956), 235 Ind. 282, 133 N.E.2d 51, to explain the effect of good behavior in prison upon the length of a life sentence, Turner v. State (1970), Ind., 256 N.E.2d 825, and to...