172 Ind. 393 | Ind. | 1909
Appellant was convicted on an indictment charging him and another with conspiring for the purpose and with the intent unlawfully, feloniously and designedly to defraud the Adams Express Company, by preparing a package, securely wrapped, which package contained, among other things, two damp sponges, excelsior and damp phosphorus, so arranged that when sufficiently dried the phosphorus would ignite and cause such package and its contents to be burned and consumed; that, in pursuance of the conspiracy, they delivered the package to said express company to be transported from Indianapolis, Indiana, to Louisville, Kentucky, and falsely represented that the package contained papers of the value of $10,000; that the conspirators intended, by the preparation of such package, and
The only error assigned is upon the overruling of the motion for a new trial.
They ought not only to be formally promulgated, but they should be definitely stated, which could not be true of a practice reposing solely in the breast of a judge. They should be published and made known in some permanent form, so that they might be known to all. The so-called rule was clearly not a rule at all, and binding upon no one— clearly not upon one who has no notice of it. The statutory provision (§2099 Burns 1908, Acts 1905, pp. 584, 634, §228) is as follows: “In prosecutions for capital offenses, the defendant may challenge, peremptorily, twenty jurors; in prosecutions for offenses punishable by imprisonment in the state prison, ten jurors; in other prosecutions, three jurors. When several defendants are tried together, they must join in their challenges.”
In State v. Potter (1846), 18 Conn. 166, a talesman was called and examined by the counsel for defendant as to his bias, or for cause of challenge, and no objection appearing the court informed defendant’s counsel that they could challenge him peremptorily. They declined to exercise-the right at that time, as the panel was not full, and after it was full they challenged the juror peremptorily, and the court inquired whether any cause then existed which did
Under the statute of Arkansas, the state in criminal cases is required to exhaust its challenges before passing a jury to the defendant, and it was held that when the state had passed a jury to the defendant it was error to permit a peremptory challenge by the state. Williams v. State (1897), 63 Ark. 527, 39 S. W. 709.
Where, upon impaneling a jury, the judge announced that he would require the defendant to make his challenges as he desired, to each juror as called, it was held not error to refuse a peremptory challenge after the juror was sworn and accepted, and it was held that, when there was a fair oppor
We are not unaware that in the earlier cases in this State and in other states it is held that the right of challenge continues up to the swearing of the jury, but we are unable to perceive that any substantial right of a defendant is invaded when an opportunity for challenge of the full number is afforded and it is not availed of up to the time the jury is sworn. The object to be attained is an impartial jury, and while the right of peremptory challenge is an absolute one, it is not, we think, so far so that it may be exorcised under all conditions. If, by the introduction of new men upon the panel, a cause for challenge should arise— such as the coming on of a person at such enmity to one already passed that they could not work in harmony, or the introduction of anything which might prejudice the right of a defendant—he would have a clear right to exercise his preference, and challenge the man already acceptable, rather than the new man, and the right would thus be preserved until the full panel is complete and the jury sworn. He has a right to a full panel to begin with, the right of canvass and comparison among jurors, and if his full right of challenge is preserved, within the line here indicated, it is practically a right of peremptory challenge until the jury is sworn, but it does not follow that the opportunity must be open under all circumstances or conditions, for it is a right which may be waived. Neither do we understand that the rule here declared is in conflict with the earlier holdings of the court, which upon examination are found to be general declarations as to the right of peremptory challenge extending until the jury is sworn, and did not involve any question of practice as to the mode of conducting the impaneling of juries, and of exercising the right of challenge, or of the
As to instruction eleven, certain language is referred to which the instruction does not contain. Counsel probably refers to instruction ten, and objects that it does not use the word “friction” in connection with the words “exposed to air,” as a cause for ignition. We cannot know what the evidence was on the subject. No reversible error is shown, and the judgment is affirmed.