Turpin v. State, 25843.

• Citation: 206 Ind. 345,189 N.E. 403
• Decision Date: 09 March 1934
• Docket Number: No. 25843.,25843.
• Parties: TURPIN v. STATE.
• Court: Supreme Court of Indiana

206 Ind. 345

189 N.E. 403

TURPIN

v.STATE.

No. 25843.

Supreme Court of Indiana.

March 9, 1934.

Appeal from Washington Circuit Court; James L. Tucker, Judge.

Lawrence Turpin was convicted of second–degree murder, and he appeals.

Affirmed.

Eli B. Stephenson, of Bedford, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.

FANSLER, Judge.

The appellant and one Jenkins were charged jointly, by indictment in two counts, with the murder of Zack Burton. The appellant was separately tried and found guilty of murder in the second degree upon the first count, which charged that the appellant and Jenkins killed Burton while engaged in the perpetration of and attempt to perpetrate the crime of robbery by willfully and purposely shooting Burton with a pistol held in the hands of Jenkins.

The appellant filed an answer in abatement to which a demurrer was sustained. Several grounds for abatement are alleged in the answer, but only one is urged in the appellant's brief. That is the allegation: “That the Prosecuting Attorney was present with the Grand Jury when he submitted a new specially prepared indictment to them and present while they were deliberating thereon and expressing their opinions about same and said prosecutor suggested and urged that said Grand Jury return the new indictment which is the identical one herein returned October 1st, 1928. He had prepared it in two counts and with said Grand Jury discussed the sufficiency of the evidence submitted in said cause to sustain the charge.”

The statute provides: “The prosecuting attorney or his deputy shall be allowed at all times to appear before the grand jury, for the purpose of giving information relative to any matter cognizable by it or advice upon any legal matter when required; and he may interrogate witnesses before the grand jury, when the jury or he deems it necessary, but no prosecuting attorney, officer or person shall be present with the grand jury during the expression of their opinions or in giving their votes upon any matter before them.” Section 2142, Burns' Ann. St. 1926.

The demurrer, of course, admits all the facts well pleaded. Such a plea does not deny the merits of the prosecution or the guilt of the accused, and only tends to delay or postpone the remedy. The answer is required to anticipate and exclude all supposable matter which, if alleged by the state, would defeat the plea, and, therefore, in considering its sufficiency upon demurrer the allegations will be strictly construed unaided by any intendment or presumption, and will only be held sufficient if any supposable matter which might be asserted in reply is certainly and conclusively excluded. State v. Comer, 157 Ind. 611, 62 N. E. 452;Williams v. State, 188 Ind. 283, 123 N. E. 209.

The statute clearly contemplates that the prosecuting attorney may be present with the grand jury for the purpose of giving information and advice upon legal matters, and that he may interrogate witnesses, and thus assist the grand jury in developing evidence. The drafting of indictments is highly technical, and in determining the crime with which a person is to be charged, consideration must be given to the facts which may be established by the evidence, and it must be determined what crime, if any, will be established by the facts available. An attempt by grand juries to determine for themselves, without advice or consultation with the prosecuting attorney, what, if any, crime is established by the facts concerning which they have heard evidence, and the character of the indictment which will properly charge that crime, would undoubtedly lead to numerous miscarriages of justice. The statute must not be interpreted as meaning that the prosecutor shall not aid and assist the grand jury in determining what, if any, crime is constituted by given facts, and the method of charging the crime. In so assisting the grand jury it may be necessary that he be present and submit a specially...