46 Ind. 132 | Ind. | 1874
The appellant was indicted, together with her husband Harrison Kingen, for the murder of Samuel' Derry by stabbing him with knives. The accused parties • were tried separately. The appellant, on trial by a jury, was convicted of manslaughter, and sentenced to imprisonment in the county jail for the term of two years.
It is shown by a bill of exceptions that a jury had been selected and agreed upon by the parties, and had been sworn to try the cause, and had been permitted to retire under the-charge of a sworn bailiff, no evidence having been introduced, and the case not having been stated to them. On= the meeting of the court in the afternoon, it was discovered' for the first time that one of the jurors was not a householder or a freeholder of the county. The jurors, before they were sworn, had been interrogated as to having formed* or expressed any opinion as to the guilt or innocence of the-
In Croy v. The State, 32 Ind. 384, it was held, upon a full consideration of the question, that where a defendant failed to interrogate the jurors at the proper time in respect to their being householders of the county, it was too late to make any question afterward in that respect; and that a nGW trial could not be granted on the ground that one of the jurors was not a householder. We concur in the conclusion thus arrived at.
The defendant, as well as the State, by failing to interrogate the jury which was first sworn, as to their being householders, or taking other steps to ascertain their competency in that respect, waived any objection on that ground. The defendant, as well as the State, would have been bound by the verdict of that jury as much as if each juror had been in all respects competent. The defendant had already waived all objection to the juror on the ground mentioned, and her refusal to waive the objection after the incompetency of the juror was discovered cannot change the legal aspect of the case. We do not understand the record as showing that the defendant made any objection to the juror, but simply that -.she refused to waive any objection. We have seen that a
There was a motion for a new trial, because, among other things, of improper charges given. For a statement of the general facts in the case, see the case of Kingen v. The State, 45 Ind. 518. The court gave in this case the same charge as was given in that, and for the reasons therein stated the judgment must be reversed.
The judgment is reversed, and jFe cause remanded, for a new trial.