165 Ind. 339 | Ind. | 1905
An indictment was returned by a grand jury of the Eloyd Circuit Court at its March term, 1905, whereby appellee was charged with the crime of murder in the first degree. A warrant was issued, and he
Erom this judgment the State appeals to this court, and assigns as error that the court erred in overruling the demurrer to the plea in abatement.
At the very threshold we are confronted with appellee’s motion, made on special appearance, to dismiss this appeal for the following reasons: “(1) It does not appear that notice of an appeal by the State was given to the appellee, or to the clerk of the Eloyd Circuit Court, where the judgment was rendered. (2) ETo assignment of errors has been filed. (3) The supposed assignment of errors filed with the transcript was not signed by the Attorney-General,
A notice addressed to the clerk of the lower court is contained in this entry, and is in the same words and figures as the notice to appellee. It was served on the clerk on May 24, 1905, and the service thereof duly acknowledged by that official. The transcript and the assignment of errors were each filed in the office of the Clerk of the Supreme Court on May 29, 1905.
The objection interposed by appellee’s learned counsel to the notices in controversy is that they do not allege, as required by the statute, that the State of Indiana has ap
The criminal code, as enacted by the legislature of 1905, was in full force and effect at and prior to the time of the taking of this appeal, and possibly its provisions govern therein, unless it can be said that the repealing section of the statute of 1905, pertaining to criminal procedure and public offenses, requires a holding that the criminal code of 1881 must control. But it is wholly immaterial which of these codes govern, for the reason that, so far as their provisions are applicable to the question as here presented, they are substantially alike. Section 1955 Burns 1901, §1882 R. S. 1881, authorizes an appeal by the State from a judgment quashing or setting aside an indictment or information. Acts 1905, p. 584, 656, §325, authorizes an appeal from a judgment quashing or setting aside an indictment or affidavit.
As a material step in taking an appeal, the State is required to serve a written notice upon the clerk of the court wherein the judgment was rendered, stating that the appellant, i. e., the State of Indiana, appeals to the Supreme or Appellate Court, as the case may be, from the judgment, and a similar notice must be served upon the defendant or his attorney. See §1960 Burns 1901, §1887 R. S. 1881; ajid Acts 1905, p. 584, 650, §330. The statute declares that an appeal, if the court is in session—that is, the court to which the appeal is taken—shall stand for trial immediately after filing the transcript and notice of appeal.. See §1962 Burns 1901, §1889 R. S. 1881; and Acts 1905, p. 584, 657, §332.
It will be observed that at the head of the notices in question the cause is entitled, and the day upon which the judgment in the cause entitled was rendered by the Floyd
Section 1449 Burns 1901, Acts 1899, p. 428, empowers the circuit court during the last term beginning in each calendar year to appoint for the ensuing year two persons as jury commissioners, who shall be freeholders and voters of the county of opposite politics to each other, one of whom shall be a resident of the town or city in which the court is held. They are by the provisions of the above section required to take the oath of office therein prescribed, that they will honestly perform the duties of jury commissioners during their terms of office. Section 1456 Burns 1901, §1391 E. S. 1881, provides: “Ho person shall be appointed a jury commissioner who at the time is a party to or interested in a cause pending in the county which may be tried by a jury to be drawn during the calendar year next succeeding his appointment.” The section further provides that any jury commissioner who shall fail to accept said office shall be deenled guilty of contempt of court, etc.
Section 1451 Burns 1901, §1392 R. S. 1881, among other things, fixes a per diem to he paid said commissioners as a compensation for their services.
There are no facts alleged in the plea in abatement to show that the grand jurors who returned the indictment in question did not possess the qualifications required by law, or that the method of selecting and drawing them was not in strict compliance with the law relative thereto, save and except the point made as to the incompetency of the jury commissioner herein in question. The sole proposition presented and argued by appellee is that by virtue of the fact that Dunbar, the commissioner, was at the time of his appointment a stockholder of the corporation against whom actions were then pending in the Eloyd Circuit Court, he was thereby wholly disqualified and incompetent, and that under the express provisions of the statute the judge of the Eloyd Circuit Court was forbidden to appoint him, and that
The contention that the appointment of Dunbar was illegal and wrongful, and • therefore absolutely void, and that, under the circumstances, he can not be regarded as an officer de facto can not be sustained. As previously said, it is not shown that in making the appointment there was any
It is not charged that there was any fraud or corruption in selecting the grand jury in controversy, but the plea in
In respect to the question of time when the objections to the jury should have been interposed by appellee, it may be said in this case that, inasmuch as Dunbar, in the eye of the law must be recognized at least as a de facto commissioner, who before the impanelment of the grand jury had already fully performed the official act in controversy, it would follow, under the circumstances, that appellee’s challenge to the array, had it been made on the grounds set up in the plea in abatement, would have been no more available than are the objections to the indictment as presented by said plea.
Were we, under the facts of this case, to sustain the contention of appellee, then the effect of our holding would be to affirm the right of any party in a cause pending in the Eloyd Circuit Court, triable by a jury during the calendar year for which the commissioner in question had acted in selecting the names of persons to serve as petit jurors, to challenge for the same reason the right or authority of the jurors to try such cause. It is manifest that if the law required or warranted such a holding it would be justly subject to ridicule. Formerly under the law of this State
It follows, and we so adjudge, that the court erred in overruling the demurrer to the plea in abatement, for which error the judgment is reversed, and the cause remanded, with instructions to the lower court to sustain the demurrer, and for further proceedings.