190 Ind. 133 | Ind. | 1920
Lead Opinion
— On January 28, 1917, the grand jury of Delaware county returned an indictment against the appellant, which indictment is in the words and figures as follows, to wit: “The Grand Jurors of Delaware county, State of Indiana, being duly and legally impaneled,, charged and sworn upon their oaths, do charge and present that George T. Durst, on or about the 1st day of April, 1916, at and in the county of Delaware, State of Indiana, did then and there unlawfully keep, run and operate a place where intoxicating liquors were then and there unlawfully sold, bartered and given away in violation of the laws of the State of Indiana, and was then and there found unlawfully in possession of intoxicating liquors for the purpose of then and there unlawfully selling, bartering and giving the same away in violation of the laws of the State of Indiana, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana.”
The defendant entered a plea of not guilty to said charge, and upon the issue thus formed a trial was had resulting in a verdict of guilty. Judgment was rendered on such verdict, and from the judgment defendant appeals. The questions presented by the appeal arise on motion for a new trial: (1) Error in giving and refusing certain instructions. (2) Error in admitting and excluding certain evidence. (3) Error in empaneling the jur
The appellant claims that the court erred in giving
The defendant claims that Raymond Dudley was the proprietor of the business and had full control of it, and that Dudley was not in his employ, and consequently the acts of Dudley and others in the conduct of said business could not be considered in determining the guilt or innocence of said defendant. Kit Maynard, a witness for the state, described the building and the rooms in it, and said there were a number of persons employed upstairs. He also testified that the money that was taken in upstairs from the various operations, including the sale of beer, was taken down below and put in the safe in a tin box. He says every morning Mr. Durst came up and counted out the money; then he would make a deposit slip and take it over to the Peoples Trust Company, using Peoples Trust Company deposit slips. This witness says that he saw him counting the money every morning during the entire time witness was there. This witness Maynard testified that he was in the employ of defendant at that place for eighteen .months, ending March, 1916. From this evidence the jury may have found that Dudley, Maynard and others were engaged in business with defendant as partners, and in that event their acts introduced in evidence might properly be considered by the jury as affecting the guilt of defendant. The tendered instruction was properly refused. Dugan v. State, supra; Donovan v. State, supra.
Instruction No. 9, given by the court of its own motion, is as follows: “If you believe from the evidence in this case that the building wherein the intoxicating liquors were sold, bartered and given away in violation of law as alleged in the indictment in this case was during all said time leased and rented to, and under the control and management of persons other than the defendant, and said building and fixtures and the business therein conducted were not in the control of the defendant, the mere fact that the defendant had knowledge of the illegal business conducted in said building or the fact that defendant, while acting for the persons conducting the business, made occasional sales of the intoxicating liquors of said other persons would not make the defendant guilty of the crime charged in the indictment in this case.”
An examination of these two instructions shows that No. 9, given by the court of its own motion, substantially covers the instruction refused, and in addition instructs the jury that appellant might have made occasional sales without making him guilty of the crime charged in the indictment. If a proper instruction is tendered and refused, but is substantially given in another form, there is no error. State v. Jackson (1918), 187 Ind. 694, 121 N. E. 114; Dugan v. State, supra.
No error being made to appear in the record, the judgment is affirmed.
Dissenting Opinion
Dissenting Opinion.
— This case holds that errors of the trial court in sustaining or overruling challenges to jurors when a jury is being empaneled to try a case may be properly assigned as cause for a new trial, but that, where such a ruling is designated in the motion for a new trial as an “error of law occurring at the trial,” it cannot be considered, for the reason that the trial of a case does not begin until the jury is empaneled and sworn. The decision on this question is based on a like decision by this court in the case of Bush v. State (1920), 189 Ind. 467, 128 N. E. 443. The writer was unable to agree to the proposition when it was stated in the case cited and was marked as dissenting. After a further consideration of the question, the writer is convinced that, in fairness to the court and to himself, a brief statement should be made of the reasons that impelled the dissent.
The statute provides that a new trial may be granted in the following cases. Then follow eight clauses specifying in general terms the grounds upon which motions for new trials may be based. It has been generally held that it is not sufficient to assign a cause for a new trial in the general words as used in the first, second, third, seventh or eighth clauses of the statute. If misconduct of the jury is relied on, the specific acts of misconduct must be set out in the motion, and the same rule applies to the other clauses mentioned. Gregory v. Schoenell (1876), 55 Ind. 101; Musselman
It has been the general practice in assigning causes for a new trial to set out specifically the cause relied on as constituting the reason for the relief asked, without designating the particular clause of the statute authorizing the specification made. It has been generally understood that, if the specified cause for a new trial was authorized by any clause of the statute, it was properly assigned, even though the motion did not indicate the particular clause of the statute under which it was filed.
An old text-book on pleading and practice, which is highly esteemed by the bench and bar of this state, presents the rule thus: “This specification relates exclusively to such errors' as may be committed at the trial. When the trial may be regarded as commenced is a question of some doubt. For some purposes, the trial is held to be commenced with the swearing of the jury, and to continue until the motion for a new trial is disposed of. There are other matters more nearly connected with the trial about which there is some question. For example, questions arising upon the right to a trial by jury; in the selection of the jury, questions of the competency of jurors, the right to challenge, and the like. These questions although nearly connected with, cannot be regarded as a part of the trial, but rather as settling who the triers shall be. The question is not one of practical importance, where it is certain that the error complained of is within any of the statutory .causes. It is.not necessary to designate in the motion whether the error is one occurring at or before the trial. It is only necessary to state specifically what the error is, and if it falls within either specification, it is sufficient.” 1 Works, Practice (2d ed.) §927.
Where a party assigns a specific reason for a new