Walter v. State

• Decision Date: 16 April 1935
• Docket Number: 26,300
• Parties: Walter v. State of Indiana
• Court: Indiana Supreme Court

195 N.E. 268

208 Ind. 231

Walter v. State of Indiana

No. 26,300

Supreme Court of Indiana

April 16, 1935

From LaGrange Circuit Court; James L. Harman, Special Judge.

Rollo N. Walter was convicted of embezzlement by receiving a deposit as an official of an insolvent bank, and he appealed.

Reversed.

H. W Mountz, Solon B. Selleck, and Claude Cline, for appellant.

Philip Lutz, Jr., Attorney-General, and Ralph E. Hanna, Deputy Attorney-General, for appellee.

OPINION

Fansler C.J.

Appellant was convicted of embezzlement by receiving a deposit when the bank of which he was an officer was insolvent.

The first error assigned by appellant is that the court erred in overruling his motion to quash the affidavit. The motion to quash is based upon the theory that the statute under which he was prosecuted, section 2479, Burns 1926, § 10-1714, Burns 1933, § 2476, Baldwin's 1934, does not cover embezzlement by officers of loan, trust, and safe deposit companies. This question was fully presented upon a situation identical in all respects with the one at bar, and settled adversely to appellant's contention, in the cases of Green v. State (1933), 204 Ind. 349, 184 N.E. 183, and Gillian v. State (1935), 207 Ind. 661, 194 N.E. 360.

Appellant challenged the array of the jury upon the ground that the jury commissioners who selected the names to be drawn as jurors did not perform their duties without favor or prejudice, and did not in such selection endeavor only to promote the impartial administration of justice, but purposely and intentionally selected names from certain classes of the qualified voters and citizens of the county whose names appeared upon the tax duplicate, and purposely and intentionally excluded the names of women from the names so selected. In support of the challenge, the jury commissioners were introduced as witnesses. They testified that they had an understanding that they would not select the names of women voters from the tax duplicate, although the names of women qualified for jury service did appear on the tax duplicate. One of the commissioners testified that they confined themselves to the selection of male voters because it had always been done that way, and that he understood if women were drawn there would be no place to separate them. The other commissioner testified that they selected all male voters only because he understood the judge wanted only men selected; that he did not think the judge said anything to him about the selection, but that he understood the judge had talked to the other commissioner, or that it might have been the clerk, and that they went according to that understanding. It is clear from the testimony that the jury commissioners for some reason agreed in advance not to select women for jury service, and that the failure to select them was not due to accident or the absence of the names of qualified women upon the tax duplicate.

Section 4-3301, Burns 1933, § 1266, Baldwin's 1934, provides for the appointment of jury commissioners "of good character for intelligence, morality and integrity," and provides that they shall take oath in the following form: "You do solemnly swear (or affirm) that you will honestly, and without favor or prejudice, perform the duties of jury commissioners during your term of office, that, in selecting persons to be drawn as jurors, you will select none but persons whom you believe to be of good repute for intelligence and honesty, that you will select none whom you have been or may be requested to select, and that, in all of impartial administration of justice." The second "you" impartial administration of justice.'" The second "you" quoted might well be italicized, for it is clearly intended that the commissioner shall personally perform the discretionary duties vested in him, and that he will select persons whom he personally believes to be of good repute for intelligence and honesty. The provision that he will select none whom he has been or may be requested to select, emphasizes the intention that his personal judgment shall control, and must be construed as broad enough to require that he shall not exclude a person or class that he may be requested to exclude.

Section 4-3304, Burns 1933, § 1267, Baldwin's 1934, provides that the commissioners shall select the names of jurors "from the names of legal voters and citizens of the United States on the tax duplicate of the county for the current year," and this provision must be interpreted as requiring that the names shall be selected from the names of all of the qualified legal voters on the tax duplicate. A purpose to procure the selection of jurors by disinterested commissioners, acting upon their own judgment, is clear and it is consistent with the very apparent policy of the statutes. The statute fixes the qualification of jurors, and had it been intended that women, or any other class otherwise qualified, should be excluded, the legislature would have spoken upon the subject. Since women are not excluded from jury service by the statute, it must be interpreted to mean that the legislature intended that they shall be considered for service upon the basis of their personal qualifications the same as men. Neither the judge nor any officer or person has power to control the action of the jury commissioners, nor should any person be permitted to influence them in the selection of jurors.

The jury commissioners have no power to exclude from jury service a class of citizens that the legislature has included among those eligible. That the qualifications of jurors is a matter of legislative control, and that women are eligible to serve as jurors upon the same basis as men, is settled. Palmer v. State (1926), 197 Ind. 625, 150 N.E. 917.

A jury not organized in accordance with the statute is an unlawful jury, and in support of a challenge it is not necessary to show that the members of the jury are not qualified jurors. Stipp v. State (1918), 187 Ind. 211, 118 N.E. 818.

It does not suffice to say that appellant can not show that his substantial rights were impaired, or that the jurors were biased or prejudiced against him, or that he did not have a fair trial. Peremptory challenges are permitted where a defendant does not, and presumably can not, point to any bias or prejudice, or lack of qualification. For reasons, the sufficiency of which we may not question, the legislature has seen fit to provide that a defendant shall have the right to a trial by jury, the names of the members of which are drawn from the jury box, and that the names which go into the jury box shall be selected by jury commissioners upon their own judgment from the names of the legal voters and citizens on the tax duplicate, which we construe to mean all classes of citizens and taxpayers whose names appear. This right may not legally be denied, and if it is denied we must presume that the defendant was prejudiced thereby. Any other rule would permit the jury commissioners, upon their own agreement, or upon suggestion, to exclude any class not only upon the basis of sex, but because of political affiliation, religious belief, ancestry, occupation, or location of residence, and we can see nothing that would prevent the exclusion of not only one, but numerous classes from jury service. This does not mean that all classes must be represented among the jurors selected. It does mean that the jury commissioners must exercise their own judgment and discretion in selecting the names, and that in making the selection they may not arbitrarily refuse to consider any class or classes of persons. The court erred in overruling the challenge of the array.

The statute defining the crime with which appellant is charged provides that the failure, suspension, or involuntary liquidation of the bank within thirty days after the time of receiving the deposit, which is charged to have been embezzled, shall be prima facie evidence of intent to defraud. The court gave a number of instructions based upon this provision of the statute. The fact that a bank fails, or is suspended, or goes into voluntary liquidation, within thirty days after a deposit is received, is not of itself evidence of insolvency thirty days before.

In the case of Powers v. State (1933), 204 Ind. 472, 184 N.E. 549, it was held to be error to permit proof that the defendant had no permit to carry a pistol, notwithstanding a statute to the effect that in the trial of a person charged with committing a felony against the property or person of another while armed with a pistol, the fact that the defendant was carrying the pistol without a permit shall be prima facie evidence of his intent to commit the felony with which he is charged. It was there held that the legislature has no power to declare that certain facts shall be prima facie evidence of the ultimate fact of criminal intent where such facts standing alone and without legislative enactment to aid them would not be sufficient to support a verdict. Evidence of the failure, or suspension, or involuntary liquidation of a bank, within thirty days after receiving a deposit, may be competent evidence tending to prove insolvency at the time of accepting the deposit, if it is connected with other facts and circumstances surrounding the transaction. But the judgment of a court that the institution was insolvent thirty days after accepting the deposit was held to be incompetent as evidence of insolvency in Green v. State, supra.

The cases cited deal with the competency of evidence, but here we are confronted with instructions in which the court told the jury that if the trust company suspended its business within thirty days after the time of receiving the deposit, such suspension is prima facie evidence that the company was...