*1 holding Fidelity “5. Great enjoined restrained from meetings its annual until stockholders and directors such time as this Court can hear and determine alleged merits of the matters herein make and can proper protection Fidelity orders of Great its stockholders.” part prayer reasonably This could be construed requesting remedy, granted which if would constitute an interference with the of the defendant business Fidelity. company, insurance Great Such an interference prohibited by holding the statute. Under the Court rel. State ex Company Superior Mid-West Insurance Court County, al., supra, Marion Posey et Circuit Court below jurisdiction have would to entertain this derivative suit and any proper against afford remedies Southern Securities war- evidence, ranted the law and and the effect of the statute enjoining prohibit the court from would be the stockholders meetings Fidelity. correctly, Great and directors Viewed prohibit jurisdiction does not exercise statute requests prohibited suit over a the trial court both majority non-prohibited remedies. The is in error in mandat- grant ing trial court to the motion to dismiss the entire being below, No. 72-C-38. suit Cause majority opinion deny I to the therefore dissent and vote to the writ.
Prentice, J., concurs.
Note.—Reported in 288 2d 143. N. E. of Indiana.
Varderman Shack v. State 1270S290. Filed [No. October 1972.] *2 Sargent, Greenwood, Antcliff, & G. Antcliff Clifford appellant. Deputy Peden, Attorney General, Mark Sendak, L.
Theodore General, appellee. Attorney
452 appeal by ap Shack, This isan J. Varderman
Hunter, (defendant Degree pellant below), from a conviction for First imprisonment.* Murder he was sentenced to life Appellant in was arrested and convicted how ever, in conviction was reversed. v. See Shack 249 Ind. E. 2d Appellant’s N. E. 2d 36. second trial resulted hung jury. Appellant was retried in resulted 1970 which in the conviction life sentence. A motion correct appeal errors was filed and overruled. This followed. First, six main he makes contentions of error. asserts that incarceration his from 1962 until 1969 was speedy denial pun- trial and cruel constituted and unusual brought Secondly, he ishment. asserts that he required in 1970 within the either statutes rules discharged. Third, he should and therefore he claims erroneously jury panel motion strike the overruled *3 irregularities appointment in the the because occurred of irregularities selecting commissioners and arose the in Fourth, panel. jurors he claims that on certain who stated they penalty did not voir dire that believe the death and any vote for it under improperly could not circumstances were Fifth, erroneously excluded cause. he claims the grant jurors refused to mistrial after a two were observed conversing prosecuting Sixth, with two witnesses. he claims certain appellant instructions tendered the erroneously refused.
The first issue concerns whether a was denied exposed speedy punishment to cruel trial and and unusual arising from his incarceration from 1962 to 1969. attorneys during states that five served him period, one, and that the last who served handicapped question, investigation. trial in was thus in his Additionally, property allegedly where crime occurred
* reassigned August 8, This case was to this office 1972.
453 destroyed. sympathize We with difficulties had been party such after face when a is tried in the trial both sides admittedly evidence span. difficult collect It is more to a time Appeals, unfortu fade. and the memories witnesses thereby consuming delay nately, but caused are speedy to claim the denial of cannot be used the defendant See, rel. 253 trial. ex Walker v. Ratliff 495, Ewell 383 United States v. right speedy to trial and U.S. 116. The under the Sixth I, Fourteenth of and Article Amendments the Constitution Indiana, of Section Constitution important safeguard oppres prevent “is an undue and prior anxiety trial, incarceration sive concern to minimize accompanying public accusation and to limit possibilities long delay impair ability will large However, measure accused to defend himself. safeguards many procedural provided an because of the ordinary accused, procedures prosecution for criminal designed pace. requirement A to move at a deliberate are of upon speed both unreasonable would have a deleterious effect society rights upon ability accused consistently protect Therefore, itself. has Court right speedy neces been of the that ‘The of a view delays sarily depends It relative. is consistent with It upon rights It defendant. circumstances. secures to a justice.’ rights public preclude the Beavers does Haubert, v. 950, 954, L. 573. U.S. Ed. S. Ct. delay prosecution completing amounts ‘Whether . . . deprivation upon rights depends to an unconstitutional the circumstances. delay purposeful . . . must not be States, oppressive,’ v. United Pollard 352 U.S. ingre 481. 1 L. Ed. 2d dient 77 S. essential Ct. ‘[T]he orderly expedition speed.’ and not mere Smith v. States, 1, 10, 1048, 79 Ed. 2d 360 U.S. L. United S. Ct. Ewell, supra, at United States 991.” *4 delays 1962 and 1969 benefit of between justice imagine appellant, how we cannot the ends and discharge delay. by his based on this be enhanced would prejudiced Additionally, appellant’s delay claim that has speculative. It seem and his is insubstantial would defense 454 advantage certain would accrue to the because
prior
resulting
appeal,
to the trial
in this
he
twice had
opportunity
exactly
against
see
what
him
the State’s case
delay during
period
would be. Since no excessive
charged against
1962 to 1969
State,
can be
no constitu-
speedy
tional denial
aof
therefrom.
arises
Appellant also contends that his incarceration from 1962 to
punishment
1969 was cruel
unusual
in violation
Article
Section 16 of the Constitution of Indiana.
censored,
limited,
He claims his mail was
his visitors
kept
and that he was
in isolation on “death
row”
years.
four
punishment
Cruel and unusual
prohibits atrocious
punishment
imprisonment.
prohibit
Taylor
but does not
v.
(1968),
years
Appellant’s speedy next contention is that he was denied a (1956 Ann. Repl.) trial under Ind. Stat. 9-1402 Rule § (the predecessor present (A)), 1-4D re CR. applicable. placed 9-1402 in whichever the At § applicable, it decided which statute threshold must be rel. ex Uzelac Lake Crim. Ct. or the rule. In State 21, 24, : 87, 93, was stated “Obviously, uniformity simplicity end of can by applying 1-4D ‘the Rule to cases where best achieved *5 charge the against filed, defendant is or from criminal such later)’ charge (whichever such arrest on of his date interpretation July 1965, 1, and such occurred on and after given 1-4D of Court is date of of the effective Rule accordingly.” applicable deter rule will be Also, held that the it has been by proceedings the time the date of the which started mined running. 79, 252 Ind. Johnson v. State original Although in filed 181. the in indictment was January County, County Marion refiled in Johnson on was 3, time proceedings 1968. date of which started the The the filing running in the the indict 1969. Since both date County in from which the time ment Johnson the date running January 1, 1-4D started came after Rule portion pertinent applicable held to be at the case bar. of Rule 1-4 read: embracing criminal date of his arrest cient except later delay shall gestion last mentioned delay cutor.” if such motion is filed less “1. jail prosecuting make such than time to on a where Defendant of the court charge against filing caused ten more charge, try the motion was not [10] continuance was had statement attorney circumstances, than six him in on calendar; provided, without a days prior Jail.—No defendant such during such act, than shall [6] charge defendant or where a motion trial, such to the date ten [10] months show for a continuous period (which on his prosecuting additionally there for from fault days filed, shall because continuance set ever is motion, prior the date or be that in the not suffi- from attorney detained trial, of con- later) period or prose- trial, the the ; six had, course, jail for more than been held in delays acts. When his own
months but the had been caused period delay six month a defendant causes begins Summerlin to run anew. case E. 2d In discharge dismissal and bar, appellant filed a motion for (then on October and moved date set 20, 1969) might for October continued so that he heard granted trial. this motion before The trial con- tinuance and set hearing October 1969 for motion discharge. dismissal and On October 27, heard the court evidence and took the giving motion advisement, under days parties ten to file briefs. On November petition filed a for extension of time to file his *6 finally brief, 4, 1969, and December appellant on filed his 12, 1969, brief. On December the court overruled motion the May 4, trial and set for The 1970. trial date later moved was May 6,1970. back to begin the time contends from should run to anew 1969, 17,
October which would mean the trial than came more six However, delay months appellant later. the caused the did 12, not terminate until December motion when the upon. which he Hawley filed was ruled In State v. 268 N. E. 2d this Court held that where defendant separate trial, filed motion for severance and a he delaying not was entitled to credit for caused discharge began motion, and six-month rule for to run from the date motion for anew severance was denied. The holding Hawley controlling of the case at bar. Six elapsed had from date the overruling months appellant’s on motion December 1969 and commence May 6, Therefore, of trial on ment 1-4D Rule appellant’s discharge violated and motion for April filed properly If truly overruled. had desired adjudication, early a motion under swifter for an (now CR.4(B)) him. 1-4D.2. was available to See Summerlin State, supra. Appellant next asserts that it was erroneous to overrule jury panel. His motion was based his motion to strike selected, allegation jury commissioners jury contrary and that the to the statute sworn and instructed statute, improperly I.C. 33-4- panel drawn. The (Ind. Repl.]), 4-7101 5-1 Ann. Stat. reads: [1968 § least known the duties of following promote you who intelligence, pear repute none entered office, that, will select none but appoint city “The circuit court will in which the court that, shall be freeholders and voters one and take an oath or whom shall to of record in the order-book honestly, only be of [1] form: in all of intelligence you morality thereupon of whom selecting persons opposite have been or ‘You next calendar impartial and without persons your commissioners shall, do shall shall politics, instruct solemnly integrity, selections, during affirmaton in administration whom be honesty, be held, favor or may to be drawn as year a resident and of you them swear and cause during your you two month of of the court believe to be jury requested prejudice, good open concerning will (or [2] you commissioners, character justice.’ county, well the town affirm) endeavor court, them persons, jurors, November, will term perform to select, select their good you for ap- duties.” appointed
Appellant contends the were not commissioners November, open court and not take oath in did an oral *7 pursuant to the statute. receive instructions did not were indicates that the commissioners The evidence The appointed December than November. rather require oral. The not the oath to be evidence statute does nothing signed the commissioners oath and there is shows the Likewise, open court. this was not done in to indicate that given. Even were not there that instructions evidence though appointed in December instead the commissioners were that the of statute November, there is no rest of evidence substantial complied and we hold that there was with compliance has failed to indicate the statute. with slight way by any prejudiced deviation he was in how rights appellant’s substantial were occurred. Since which complained of, re claim he the actions cannot affected 404, 145 (1924), 195 Pritchett v. State versal. part appellant’s jury- second contention is that
panel improperly pertinent testimony one drawn. The jury commissioner, upon claim, is bases his as follows:
“Q. picked How are the records names from the assessment County? of Johnson Well, go
A. through try pick we we we ones that qualified jurors. feel are to be Q. you use, mean, jurors, What standards do far as I you you through pick stated that went and tried to qualified—and just ones that were find out I’d like to they qualified how establish and who’s who’s not. Well, A. some of their older used records to show occupations they or not married whether are your some of that. newest assessment forms don’t show Q. I see. try
A. they age to be that We sure over age 65; they under the have been somewhat success- ful in life. Q. you opinion—when I Your say see. success- somewhat you life, they ful in do mean less that are more or county? in the established Yes, A. uh huh.
Q. years. And been had here a few A. Uhhuh.
Q. thing? you indicate, This sort of now-a-days, And
assessment list occupation, don’t show that at all? They’ve changed they A. the form on it so don’t show occupation. Q. you way still make Do an effort still select the same knowledge you did—by people? that matter of of these present people many A. Well at are there so new we, county personally in the we don’t know go every less, person more or 10th or 15th book, something sort, of that to arrive the number particular need out we book. — — Q. person picked every 15th, uh if If this so 10th or know, you your knowledge, some own there’s *8 they mght disqualified, you reason that be think or might disqualified they disqualified, pickings are random those you pick then another and one? go Yes, the next man. A. we’ll on to
Q. recognize So, you you weight name, if it, then and recognize you you go it, if it don’t ahead and throw —into Right. A.
Q. disqualification? Or make Right.”
A. exchange Appellant contends that demonstrates that poorer economic of the class those excluded from jury. However, testimony above does not refer to economic class at all unless can be inferred that life” “successful in economically implies jury successful. Both commissioners they the clerk that at systematically stated no time did ever any race, minority group, poor exclude persons. They primary stated that their concern people was whether drawn were between 21 One of the commissioners explained person when is selected from the list there nothing go by except a bare name and that there way religion, race, to tell their or economic class. It was many people also stated that so now County reside Johnson impossible it is commissioners to know more than very percentage eligible small people jurors. to be The systematic evidence indicates that no any group exclusion of practiced by these commissioners. Appellant, however, system also clams the used random. random requirement. Strict selection is not a requires
law the commissioners use some discre tion in the process. selection See Harrison State (1952), 231 Ind. major E. 2d 912. The requirement system should of selection is arbitrary, Harrison, supra, complete inpartiality see sought. See, should be v. Bass Thus, completely 2d 927. random selection is not
requirement long system impartial as the arbi and not trary. note, We should the more random *9 appearance process, will the of arbitrari-
selection the less goal sought. should ness. Such a poisoned Appellant panel that because also asserts the was against voter alone the clerk checked the names selected the n registered registration make certain that those lists to not this However, to how vote were excluded. he does not indicate only any violates clerk testified that she statute. The excluded registered. anyone when those not She did not exclude else panel performed she task. fail to see the this We how poisoned by procedure. this any systematic exclusion of no indicates that
The evidence employed occurred, selection group the method of nor was arbitrary. Therefore, no jury clerk commissioners and the to entire the trial court refused strike the error occurred when panel. jurors were is that certain
Appellant’s next contention they during dire, when, voir erroneously excused for cause penalty and they death not believe stated that did any cites it under circumstances. He could not vote Witherspoon U.S. Illinois v. penalty not general objection death
proposition that Witherspoon However, juror. a does cause to exclude sufficient Nor any than death. validity sentence other affect the not conviction, only sentence. 391 but invalid it render does (1968), 391 U.S. Bumper North Carolina at 523. In U.S. Witherspoon, held Court companion case a punishment re capital jurors opposing exclusion imposed sentence. The jury a life error where the versible reversal of his con a order to obtain stated Court jury required adduce evidence that a accused viction capital punishment been have oppose those who from guilt respect as well as to his with removed biased bar, appellant re case at imposed. In the to be punishment presented penalty, death and he sentence, not the life a ceived respect composed biased with so evidence appel- guilt. Therefore, is not reversible cause to his spoon’s question lant claim we need reach Wither concerning juror’s prospective the facts of whether Witherspoon frame- scruples fit within the case at bar work. been next claims mistrial should have
granted jurors requested after two were observed con
versing prosecution. witnesses for with two during place steps took conversation on the courthouse the luncheon recess. Both witnesses testified on They hearing presence jury. matter outside nothing both stated that conversation concerned more than *10 asking for directions to a “waffle house.” The evidence showed took, most, minute encounter at a or a and a half. minute attorney The defense all who saw the encounter stated that people looking involved were in the waffle direction occurring. house while the minor conversation was Such pending incident mistrial should not cause for a since the trial was not discussed at all and so the conversation was brief. We fail to see have how this innocent encounter could prejudiced receipt It or affected his trial. a fair therefore not erroneous for the trial overrule was court to appellant’s for a mistrial. motion See Oldham v. State 231 N. E. 2d Smith v. State emphasis Appellant puts 311, 170 N. 2d 794. on jurors testify. However, he fact did not involved given opportunity present issue was evidence on this jurors requested no time wit be called as certainly say its nesses. We cannot trial court abused by sponte calling jurors testify sua discretion this issue. denying
Appellant contends also that the trial erred certain of instructions. his his tendered He contends that No. con
tendered instructions 1 and both of which given. premeditation, cerned should been How have preliminary ever, the trial court’s instruction No. instruction, adequately a final covered reread as which was subject. a trial It is well established that court need this instruction, notwithstanding give fact tendered principle applicable case, correct to the where it it states a given. by adequately cases covered other instructions See Appellant in 8A I.L.E. Criminal Law 592. contends cited § give not to No. that it was erroneous his tendered instructions concerning However, subject intoxication. was this by adequately No. covered defendant’s tendered instruction given. Appellant 3 which was contends that it was error not concerning proof give instruction his tendered No. 13 beyond the crime reasonable of each material element of However, subject adequately by the doubt. was covered preliminary reread trial instruction No. which was court’s Appellant tendered final instruction. that his as a contends juror’s duty delib- No. 14 which concerned instruction erroneously However, subject was refused. eration was adequately instruction No. covered the State’s tendered given. Appellant instruction contends that 13 which was concerning presumption innocence, errone- No. was subject adequately ously However, this was covered refused. preliminary instruction No. which court’s final instruction. contends that reread as a concerning manslaughter, instruction No. tendered adequately erroneously covered This, refused. by final instruction No. 3. *11 instruction No. 9
Appellant also contends his tendered erroneously It as follows: refused. reads guilty only for right to find defendant “You no have committing same deterring others from purpose of
act.” authority support of any cite Appellant, fails to given. We should have been instruction this his claim authority support con required to search are not 2d (1968), 240 Layton 251 Ind. v. State tention. 463 Although agree expressed we with the sentiment agree instruction, we do not it refuse was erroneous to rights give Appellant’s protected it. same and this philosophy expressed by the State’s instruction No. jury. read to the
Appellant also contends his it was erroneous to refuse defining instruction No. tendered assault and assault and battery. However, degree charged a defendant with first may only guilty degree murder found of a murder lesser (including charged manslaughter) separate unless in a count. (1958), Barker v. 680; 150 N. E. 2d IC (Ind. 35-1-39-1 Repl.]). Ann. Stat. 9-1816 Since [1956 § guilty could not be found of assault or assault and battery, concerning was not error to refuse instruction them. foregoing judgment
For all the reasons the of the is affirmed.
Judgment affirmed.
Arterburn, C.J., Prentice, concur; DeBruler, Givan and JJ., J., Opinion. with concurs
Concurring Opinion DeBruler, only majority opinion J. I concur in the but practice jury because it evident commis selecting jurors sioners of who are “somewhat successful” longer followed and was not followed time of trial. jury panel
A
must
chosen
impartial,
in a manner which is
unreasonably
any
does not
exclude
class
of citizens and
arbitrary
(1952),
in nature.
v. State
Harrison
147,
Brewer v. 2d dissenting). Bruler, J., prove jury- Neither must he that jurors, faith in commissioners acted bad their selection of good or bad faith of factor. selectors relevant Smith v. Texas 85 L. U.S. S. Ct. State, supra dissenting). Brewer (DeBruler, J., Ed. Rather, requirements focus the constitutional here sole panels groups not exclude that of citizens and that panel arbitrary man selection of the not be conducted ner.
Perhaps majority it is true as the here we writes time standard, “successful” cannot assume at one applied commissioners, one of the to economic refers systematic success and there no exclusion was therefore any group hand, or class of citizens. On other potential jurors choice revolves is clear that when the around the standard of “somewhat commissioner’s successful” arbitrary. patently selection is bounded Such standard is applying only caprice of the one whim the test goal contrary eliminating discretion, individual to the potential system discrimination, process. from the A selection incorporate would, extent which would discretion to this my requirements. judgment, constitutional violate testimony of the three com- apparent from the
It is longer pursued missioners, however, practice employed, presently system and used at and that incorporate arbitrary here, standards. does E.N. Note.—Reported in 288 Authority Airport
Evansville-Vanderburgh District, et Airlines, Inc., et al. v. Delta al. 25, 1972.] Filed 869S179. October
[No.