Ward v. State, 48 Ind. 289

Ward v. State

48 Ind. 289 | Ind. | 1874

Biddle, J.

Indictment for selling intoxicating liquor to a minor. Answer in abatement. Demurrer to answer in abatement sustained. Plea not guilty. Jury waived. Trial by the court. Finding guilty. Fine ten dollars. Motion for a new trial overruled. Exception. Judgment. Appeal.

The errors assigned are:

1. Overruling the motion for a new trial.

2. Sustaining demurrer to answer in abatement.

3. Overruling motion to quash the indictment.

We will notice the points in the order in which they occur. in the record.

The answer in abatement is as follows: That at the June session, 1873, of the Board of Commissioners of Porter County, said board duly and legally selected two sets of grand jurors, as follows, to wit: (naming the twelve men), all reputable householders and freeholders of said county, and competent to serve as grand jurors; which said grand jurors were selected by said board to serve at the September term, 1873, of the Porter Circuit. Court; and said board of commissioners, at their session aforesaid, did in like manner select as grand jurors to serve at the May term, 1874, of the said Porter Circuit Court, the following reputable householders and freeholders of said county, to wit: (naming the twelve men), all of whom were and are good and lawful men, and competent to serve as such grand jurors; that on the 2d day of February, 1874, the said board of commissioners met in special session for the purpose of select*291inga grand jury for the February term, 1874, of this court, and then and there selected the following named persons, to wit: (naming the twelve men), but the record of said board does not show that said persons were selected by lot, as required by law; that the said last named persons were summoned to appear at the February term, 1874, of this court, to act as grand jurors; that Thomas G. Lytle, Gilbert Harris, Theophilus Crumpacker, Aretus Lansing, Olcott Dillingham, John W. Paramore, J. B. Deerow, and Samuel C. Hackett attended in obedience to said summons, but the remainder of said jurors failed to attend, and the court appointed in their place and stead the following named persons, to wit: Levi A. Cass, E. J. Jones, George "W. Babcock, and Enoch Baum; and the panel so filled constituted the panel of persons assuming to act as grand jurors, who found and presented the said indictment against the defendant; wherefore the defendant says, that said indictment was not found and presented by a duly and legally selected grand jury, having authority in law to find and present the same.

The appellant contends, that at the time the board of commissioners selected the grand jury at their special session held on the 2d day of' February, 1874, there was already in existence in Porter county a duly and legally selected grand jury. He also contends that the persons who presented the indictment, assuming to act as grand jurors, were not selected by lot as required by law. Further, he claims that there cannot be two legal grand juries in the same county, at the same time; and that any substantial deviation from the mode prescribed by law for the selection of grand juries is fatal to their very entity, and is, in law, equivalent to corruption. He cites, in support of his views, Valtier v. The State, 4 Blackf. 73, The State v. Freeman, 6 Blackf. 248, and The State v. Herndon, 5 Blackf. 75.

Answers in abatement are not favored in law. They must allege every fact necessary to their sufficiency. No presumptions of law or fact are allowed in their favor. If there was a legally selected grand jury in Porter county, for the February *292terra, 1874, of the Porter Circuit Court, unless it be the one selected at the special session, February 2d, 1874, the appellant has not shown the fact in his answer in abatement. He has shown us that at the June session of the board of commissioners, 1873, they selected a grand jury to serve at the September term, 1873, of the Porter Circuit Court; and also, that at the same session they selected another grand jury to serve at the May term, 1874, of said Porter Circuit Court; but which of these panels he claims to have been the legal grand jury for the February term, 1874, of the Porter Circuit Court, he does not inform us. We know of no law making either of these panels a legal grand jury to serve at the Februaryterm, 1874, of the court in which the indictment was found. A grand jury must be selected for each term of the circuit court. See 2 G. &. H. 432, sec. 7. Nor does the answer in abatement show us that the grand jury selected by the board at their ■ special session held on the 2d, day of February, 1874, were not legally selected; it shows us that “ the record of said board does not show that said persons were selected by lot as required by law.” This averment, if traversed, would put in issue only the contents of the record, not the fact that the board did not select the grand jury by lot, as required by law.

Besides, it is enacted by statute (2 G. & H. 433, sec. 12), that “no plea in abatement or other objection shall be taken to any grand jury duly charged and sworn, for any alleged irregularity in their selection, unless such irregularity,, in the opinion of the court, amounts to corruption.” See, also> Behler v. The State, 22 Ind. 345. It would be an unsafe ■opinion of a court, that, from the irregularity shown in this answer in abatement, would presume corruption in the board of commissioners in selecting a grand jury. Fraud or corruption is never presumed. The facts which constitute it must be alleged. And the proceedings of a board of commissioners are presumed to be correct until the contrary is clearly shown. We do not think the authorities cited by the appellant sustain his views; besides, those cases were decided under the common law practice, before the enaetmeñt of our present. *293code of procedure, and when there was no such healing stat■ute as sec. 12, cited above. And we think that ■ even under that practice the present answer' in abatement would have been •insufficient. The State v. Newer, 1 Blackf. 307.

The only point taken by the appellant against the sufficiency of the indictment is, that it contains no avernient that the .defendant knew said Mink, the minor to whom the liquor was alleged to have been sold, to be under the age of twenty-one years. Perhaps it would be enough to say that the statute under which the defendant was indicted does not use any such words in the definition of the offence; but it has been frequently decided by this court, that if a defendant had good reasons to believe the purchaser was not a minor, he might show such facts in his defence. The State v. Kalb, 14 Ind. 403; Farbach v. The State, 24 Ind. 77 ; Goetz v. The State, 41 Ind. 162. We think the indictment is good.

The appellant insists that the overruling of the motion for a new trial was clearly erroneous, because there was not sufficient evidence given on the trial to support the verdict. This question is not properly brought before us, as the bill of exceptions does not show that it contains all the evidence given in the case. This ruling has been so often made by this court that citations of authorities have become unnecessary.

The judgment is affirmed.