Trombley v. State

• Decision Date: 24 October 1906
• Docket Number: 20,809
• Citation: 78 N.E. 976,167 Ind. 231
• Parties: Trombley v. The State
• Court: Indiana Supreme Court

78 N.E. 976

167 Ind. 231

Trombley v. The State

No. 20,809

Supreme Court of Indiana

October 24, 1906

From Sullivan Circuit Court; Orion B. Harris, Judge.

Prosecution by the State of Indiana against Frank Trombley. From a judgment of conviction, defendant appeals.

Affirmed.

Charles D. Hunt, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, H. M. Dowling and W. C. Geake, for the State.

OPINION

Montgomery, J.

Appellant was convicted of murder in the second degree. A reversal of the judgment is sought on account of alleged error in overruling appellant's motion for a new trial. The grounds of the motion were the giving of certain instructions, the refusal to give others tendered, misconduct on the part of two jurors, and that the verdict is contrary to law and the evidence. The evidence has not been brought before us, and we cannot therefore pass upon its sufficiency to sustain the verdict, and the alleged errors relating to instructions have been waived by a failure in appellant's brief to present them for consideration.

It is insisted by counsel for appellant that such misconduct of jurors is shown as requires the granting of a new trial. It is charged in an affidavit by appellant that, at a recess in the trial during the introduction of the State's evidence, the jury left the box, and, while returning, one of the jurors when within a few feet of Tude Ingram gave a sign of recognition to said Ingram by a movement of the hand and head, and a wink of the eye, which said Ingram answered by a smile and a nod; that said acts were seen by appellant, and when said juror and Ingram discovered that they were so observed they appeared embarrassed; that said Ingram was a brother or half-brother of the deceased, and took, and was at the time taking, an active part in the prosecution of appellant; that appellant immediately mentioned to his counsel what he had seen, but did not understand its importance, and had no opportunity to explain the matter in full until the close of the trial; and that upon his voir dire said juror had answered that he was not acquainted with said Ingram and had never seen him prior to said trial. The State filed the counter affidavits of the juror named and of said Ingram, in which they swore that the charge of appellant was absolutely false in substance and in fact, and declared that at the time mentioned they were wholly unacquainted with each other, and specifically denied the acts charged and the making of any sign or gesture at any time by way of recognition or response.

We are unwilling to hold that a public exchange of salutations between a juror and a prosecuting witness during a trial and in the manner described would constitute harmful misconduct and in this case are not required to decide the question since we cannot say that the charge is true. This issue was submitted to the trial court wholly upon affidavits, and we are therefore enabled to get a fair view of the proofs upon which his decision was grounded, and are fully satisfied with the conclusion reached by the trial court. Ordinarily this court will not review the decision of a collateral fact of this character upon contradictory evidence. Shular v. State (1903), 160 Ind. 300, 66 N.E. 746; Keith v. State (1901), 157 Ind. 376, 61 N.E. 716; Hinshaw v. State (1897), 147 Ind. 334, 47 N.E. 157; Epps v. State (1885), 102 Ind. 539, 1 N.E. 491; Doles v. State (1884), 97 Ind. 555; Long v. State (1884), 95 Ind. 481; Weaver v. State (1882), 83 Ind. 289; DePriest v. State, ex rel. (1879), 68 Ind. 569; Beard v. State (1876), 54 Ind. 413; Holloway v. State (1876), 53 Ind. 554; Romaine v. State (1855), 7 Ind. 63.

A man on trial for his life ordinarily would be instinctively quick to observe and complain of any manifestation of bias or prejudice against him on the part of the jurors upon whose decision his fate depended. If appellant saw, as he claims, a suspicious interchange of signs of recognition between his prosecutor and a juror, who were supposed to be strangers to each other, its significance would doubtless impress him at once. No subsequent occurrence or information is shown to explain, or to magnify in the mind of appellant the importance of the acts of which he complains. If after verdict he regarded the incident as important, he ought to have so regarded it at the time of its alleged occurrence; and, if he deemed it to be misconduct on the part of the juror, he should have made his complaint known to the court at the earliest opportunity, and arrested the trial. No substantial excuse is given for his failure to speak at once, and having kept silent, and thereby elected to abide the action of the jury, he waived his right to complain of the alleged misconduct. It follows, therefore, that if the acts occurred as charged and were conceded to be harmful, appellant having knowledge long previous, could not complain thereof for the first time after verdict against him. Blume v. State (1900), 154 Ind. 343, 356, 56 N.E. 771; Madden v. State (1897), 148 Ind. 183, 187, 47 N.E. 220; Robb v. State (1896), 144 Ind. 569, 43 N.E. 642; Grubb v. State (1889), 117 Ind. 277, 283, 20 N.E....