State v. Jackson
| Decision Date | 10 December 1918 |
| Docket Number | 23,428 |
| Citation | 121 N.E. 114,187 Ind. 694 |
| Parties | State of Indiana v. Jackson |
| Court | Indiana Supreme Court |
From Lawrence Circuit Court; Oren O. Swails, Judge.
Prosecution by the State of Indiana against Ray Jackson. From a judgment of conviction, the defendant appeals.
Affirmed.
Boruff & Boruff and Robert L. Mellen, for appellant.
Ele Stansbury, Attorney-General, Elmer E. Hastings and Dale F Stansbury, for the state.
The grand jury for Lawrence county, at the November term, 1916 of the Lawrence Circuit Court returned into that court an indictment in four counts against appellant and one Spencer Smith, charging them jointly with the crimes defined by §§ 2256, 2647 Burns 1914, Acts 1905 p. 584 §§ 367, 641. Section 2256 reads as follows: "Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine or substance whatever, with intent thereby to procure the miscarriage of such woman, or with like intent, uses or suggests, directs or advises the use of any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, on conviction, if the woman miscarries, or dies in consequence thereof, be fined not less than one hundred dollars nor more than one thousand dollars, and be imprisoned in the state prison not less than three years nor more than fourteen years."
Section 2647 is as follows: "Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, body, association or combination of persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars nor more than five thousand dollars, and imprisoned in the state prison not less than two years nor more than fourteen years."
The first two counts of this indictment separately charged appellant with the use of an instrument, in the first a catheter, and in the second an instrument to the grand jurors unknown, in and upon the body and womb of a woman who then was, and known to him to be, pregnant, thereby producing a miscarriage and death of such woman. The third and fourth counts each charged a conspiracy on the part of the two defendants to employ and use a certain instrument, in the third count stated to be a catheter, and in the fourth unknown to the grand jury, in and upon the body and womb of a woman then and by them known to be pregnant, with intent to procure a miscarriage of such woman. A motion to quash each count of the indictment was overruled followed by an application for separate trials, which was granted, and the state elected to try appellant first. The trial was had and appellant was convicted of the crime charged and defined by § 2256, supra. His motion for a new trial was overruled, and thereupon he was adjudged to be imprisoned in the state prison at Jeffersonville for a period of not less than three years nor more than fourteen years, and that he be fined in the sum of $ 400. Upon appeal to this court the errors assigned are (1) the overruling of his motion to quash the indictment, and (2) the overruling of his motion for a new trial.
In support of his motion to quash, he insists that the record discloses that two members of the grand jury regularly drawn were by the court discharged from service for the term, and their places supplied upon an order of court to the sheriff to complete the panel from the bystanders, which was done. From this statement he contends that the grand jury was not selected according to law, and for that reason was illegally constituted.
Our attention is called to § 1668 Burns 1914, Acts 1881 p. 557, as amended, Acts 1913 p. 15. This section provides the manner of drawing the names of persons to be summoned as grand jurors, and § 544a Burns 1914, § 519 R. S. 1881, was construed by this court in the case of Stipp v. State (1918), ante 211, 118 N.E. 818, as providing the manner of filling the place of any one excused from jury service.
Whatever may be said for or against the manner of selecting the grand jury in the case at bar, it is sufficient to say that this question cannot be presented by a motion to quash. The indictment purports to have been returned by a legal grand jury, and, no apparent defects appearing upon its face, the motion to quash must fail. Pittsburgh, etc., R. Co. v. State (1912), 178 Ind. 498, 99 N.E. 801. It will not be claimed that the irregularities relied on appear from the indictment. We know of them only from the recitals in the transcript concerning the proceedings leading up to the impaneling of the grand jury and in no other way. Our statute provides the grounds available for a motion to quash, and neither of them authorizes the court to search the record prior to the indictment. § 2065 Burns 1914, § 1759 R. S. 1881; Donahue v. State (1905), 165 Ind. 148, 74 N.E. 996. Moreover, under § 2063 Burns 1914, § 1756 R. S. 1881, no indictment or affidavit shall be deemed invalid nor shall the same be set aside or quashed "for any * * * defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Appellant has not even attempted to show wherein any of his substantial rights have been affected by the irregularities of which he complains.
"If there was anything illegal or irregular in respect to the impaneling of the grand jury, appellant should have interposed such objections by plea in abatement." Harris v. State (1900), 155 Ind. 265, 276, 58 N.E. 75, 79.
Appellant, in support of his motion for a new trial earnestly insists that the trial court erred (1) in refusing to give the jury instructions Nos. 33, 36, and 42 tendered by him; and (2) that the venue as laid in the various counts of the indictment was not sustained by the evidence.
It will be noted that the verdict of the jury, the form of which is in no way questioned, rests upon the first two counts of the indictment. It is therefore unnecessary for us to give any attention to the proceedings or evidence applicable to the third and fourth counts.
Instructions Nos. 33 and 36, and every principle of law therein stated were fully covered and stated in various forms by instructions Nos. 27, 30, 31, 34...
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