Townsend v. State

• Decision Date: 16 September 1892
• Citation: 132 Ind. 315,31 N.E. 797
• Parties: Townsend v. State.
• Court: Indiana Supreme Court

132 Ind. 315

31 N.E. 797

Townsend

v.State.

Supreme Court of Indiana.

Sept. 16, 1892.

Appeal from circuit court, Owen county; G. W. Grubbs, Judge.

King Townsend was convicted of assault and battery with intent to commit a felony and the crime of malicious mayhem, and appeals. Affirmed.

J. W. Williams, for appellant. A. G. Smith, for the State.

COFFEY, J.

The appellant was indicted in the Owen circuit court for the alleged crime of assault and battery with intent to commit a felony and the crime of malicious mayhem. Upon a trial of the cause he was found guilty by a jury, upon whose verdict the court gave judgment. He appeals to this court, and assigns as error that the circuit court erred in overruling his motion for a new trial. It was assigned as one of the reasons for a new trial that during the progress of the cause 2 of the 12 jurors selected by the parties were discharged by the court by reason of illness, and that the verdict was rendered by the remaining 10 jurors. This is the only matter argued in this court by the counsel for the appellant, his contention being that a verdict in a criminal case by less than 12 jurors is a nullity. In answer to this contention, it is urged by the attorney general that it does not appear by the record that the appellant was tried by 10 jurors only, but, on the contrary, it appears that he was tried by the 12. This renders it necessary to examine into the state of the record before us. It appears from the clerk's entry, signed by the presiding judge, that 12 jurors were impaneled to try the cause. As we have seen, it was assigned as one of the causes for a new trial that 2 of the jurors so impaneled were discharged by the court while the trial was in progress, but no reference is made in the motion for a new trial to any affidavits in support of the charge. Thirty days' time was given by the court in which to file a bill of exceptions. The bill filed contains the following language: “Be it remembered that on the 18th day of January, 1892, the same the 19th day of the December term, 1891, of this court, the following pleas and proceedings were had before the Honorable George W. Grubbs, sole judge of said court: The defendant filed his motion and reasons for a new trial, which motion and reasons are as follows: [See transcript from pages 9 to 17, inclusive;] which motion and reasons for anew trial said court overruled, to which ruling of the court the defendant at the time excepted.” There is on...