Stipp v. State

• Decision Date: 26 February 1918
• Docket Number: No. 23336.,23336.
• Citation: 118 N.E. 818,187 Ind. 211
• Parties: STIPP et al. v. STATE.
• Court: Indiana Supreme Court

187 Ind. 211

118 N.E. 818

STIPP et al.

v.STATE.

No. 23336.

Supreme Court of Indiana.

Feb. 26, 1918.

Appeal from Circuit Court, Delaware County; Alonzo L. Nichols, Special Judge.

Lee Stipp and others were convicted under an indictment charging them with the operation of a place where intoxicating liquors were sold, bartered, and given away in violation of Burns' Ann. St. 1914, § 8351, and appeal. Reversed, with instructions.

J. Frank Mann and Frank Feeley, both of Muncie, for appellants. Ele Stansbury and Dale F. Stansbury, both of Indianapolis, Elmer E. Hastings, of Washington, Ind., and Horace G. Murphy, of Muncie, for the State.

SPENCER, C. J.

Appeal from a judgment of conviction based on an indictment which charges that appellants are guilty of operating a place where intoxicating liquors were sold, bartered, and given away in violation of section 8351, Burns 1914. To this charge appellants filed a plea in abatement presenting an alleged irregularity in the selection of the grand jury which returned the indictment, and now challenge the action of the trial court in sustaining a demurrer to that plea. The answer in abatement alleges that after the original members of the grand jury had been selected in accordance with the provisions of section 1668, Burns 1914, and had assembled for the purpose of being charged and sworn, one of their number, Mose Peterson, was, for good cause shown, regularly excused from service. The plea then alleges:

That the judge of the trial court “did not fill the vacancy thus caused by calling together the jury commissioners of said county and by having the name of an additional member drawn as provided by law, but at the said time ordered the court bailiff of said court to go to a certain business house in the city of Muncie, said county and state, and there summon are William W. Ross to come into court and act as member of said grand jury in the place of the said Mose Peterson; that, pursuant to the order of said judge, the said court bailiff proceeded to the said place of business, and there found and summoned the said William W. Ross to appear in court and serve as a member of said grand jury; that thereupon, in response to the summons, the said Ross did appear in said circuit court room and by direction of the said judge took his place as a member of the said grand jury, and he, the said Ross, together with the five other members drawn by the jury commissioners, was accepted as member of the said grand jury, and said Ross was sworn as a member under the direction of said judge, and thereupon the said judge appointed the said Ross as the foreman of the said grand jury.”

Other allegations of the pleading attack the motive of the judge in assuming to exercise the power to select the new juror.

In support of their assertion that Ross was improperly selected as a member of the grand jury, appellants direct our attention to the statutory provisions for the filling of vacancies on grand juries after their organization (section 1960, Burns 1914), or in case the vacancy caused by the successful challenge of a juror (section 1967, Burns 1914), and contend that under all other circumstances the necessary additional juror must be selected in the same manner as the original body was drawn. Without disputing this contention, the state insists that appellants' remedy, if any, is provided by section 1965, Burns 1914, and that they should have challenged the selection of Ross before the grand jury was sworn. It is true, as stated in 12 R. C. L. 1032, § 19, that:

“If the accused knew that his case would be presented to the grand jury because he had been committed to await its action, he must *** object to defects in the grand jury's organization by challenge to the polls or to the array. But if he was not in custody or out on bail at that time the grand jury was impaneled, and so had no knowledge that his case would go before the grand jury, and consequently no opportunity to object to its organization before the indictment was found against him, he may make his objection by plea in abatement.”

See, also, Mershon v. State (1875) 51 Ind. 14, 18.

[1] In the present case the facts pleaded in appellants' answer are sufficient to show that they presented their objections at the earliest opportunity and we are required, then, to pass on their contention that when the juror, Peterson, was excused from service on the grand jury, his successor should have been selected...