State v. House
| Decision Date | 25 April 1918 |
| Docket Number | No. 23238.,23238. |
| Citation | 187 Ind. 353,118 N.E. 528 |
| Parties | STATE v. HOUSE, Mayor. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Knox County; Benjamin M. Willoughby, Judge.
James M. House, as Mayor of the City of Vincennes, was charged with official misconduct, and found not guilty, and the State appeals. Affirmed.
U. S. Lesh, of Huntington, Elmer E. Hastings, of Washington, Ind., Edward M. White, of Indianapolis, John G. McCord, of Pinevillage, and Joseph W. Kimmell and Curtis G. Shake, both of Vincennes, for the State. W. H. Hill and J. W. Emison, both of Vincennes, and A. J. Padgett, of Washington, Ind., for appellee.
By affidavit filed in the Knox circuit court by one Joseph W. Kimmell, the appellee, James M. House, mayor of the city of Vincennes, was charged with certain alleged official misconduct, principally in neglecting to enforce the criminal laws of the state. By this affidavit the maker invoked the provisions of section 240 of an act approved March 6, 1905, entitled “An act concerning municipal corporations.” Acts 1905, pp. 219, 386; section 8894, Burns 1914.
It appears that Kimmell at the time of making and filing this affidavit, November 29, 1916, was the prosecuting attorney for the Twelfth judicial circuit, and so acted in the trial court in the furtherance of the accusations so filed until the court overruled his challenge to the array of jurors as drawn in compliance with a special venire ordered by the court, overruled his challenge to the array of the regular panel, and overruled his objection to the jury being sworn to try the issue formed by the affidavit and plea of not guilty. The jury was then sworn, whereupon the prosecuting attorney refused to proceed with the case, refused to make a statement of the case to the jury, and refused to introduce any evidence to support the accusations so made. The cause was then submitted to the jury, and a verdict returned, finding the defendant not guilty, and he was thereupon discharged by the court from custody. The three rulings so made by the trial court are here assigned as independent errors.
The challenge to the venire and the challenge to the regular panel were each made in writing and duly verified. Appellee insists that neither of these challenges are a part of the record because not made so by a bill of exceptions. This contention is put upon the ground that there is no law in this state authorizing a challenge to the array of a special venire or to the array of a regular panel, and that under the proviso of section 289 of “an act concerning public offenses” (Acts 1905, pp. 584, 648; section 2165, Burns 1914), only such pleadings, motions in writing, etc., as are required by law to be filed are by that statute a part of the record without a bill of exceptions.
It is true that neither our Civil nor Criminal Code made any provision for a challenge to the array of either a special venire or a regular panel, yet in the absence of such provision, or its equivalent, such practice has been recognized and sustained at common law (Cooley's Blackstone, 359; 17 A. & Eng. Ency. of Law [2d Ed.] 1111), on the theory of inherent authority in the trial court to see that there is no material or prejudicial departure in the statutory method of selecting the panel. Wright v. Stuart, 5 Blackf. 120;Ullman v. State, 124 Wis. 602, 103 N. W. 6; 16 R. C. L. § 56, page 239.
In some states the practice in such cases is regulated by statute, but in the absence of a statute as here, where the common law is in force (Sopher v. State, 169 Ind. 177, 81 N. E. 913, 14 L. R. A. [N. S.] 172, 14 Ann. Cas. 27), the modern and the better practice requires that any omission or unauthorized action of those charged with the duty of selecting and bringing a jury into court should be brought to the attention of the court by a specific statement of the facts in writing. That was done in this case, and we therefore hold that the written challenges are within the purview of the proviso of section 289, supra, and a part of the record. Adams v. State, 179 Ind. 44, 99 N. E. 483.
On the day this cause was called for trial, the said challenges were each filed and passed on by the trial court. These proceedings were practically in accordance with the practice in such matters at common law. Proffat, Jury Trials, § 153. At common law this practice was not authorized as a mode of testing the qualifications possessed by the jury, but was effective only when applied...
To continue reading
Request your trial