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Docket Number

No. 25,223.

Attorney(S)

Ira M. Holmes, for appellant. Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

Judges

MYERS, J.

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Smart Summary

Hicks v. State of Indiana, No. 25,223 (Ind. Sup. Ct. May 26, 1927; rehearing denied July 1, 1927)

Supreme Court of Indiana; From Marion Criminal Court (No. 59,272), Judge James A. Collins. Counsel: Ira M. Holmes for appellant; Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr., Deputy Attorney-General, for the State. Opinion by Justice Myers.

Factual and Procedural Background

Roosevelt Hicks was indicted, tried and convicted in the Marion Criminal Court of murder in the first degree and was sentenced to death. He appealed, assigning as error the trial court's overruling of his motion for a new trial. The single issue presented on appeal (as combined from the several grounds relied on below) was whether the trial court committed reversible error by requiring, over appellant's objection and exception, that the defendant first examine the prospective jurors on their voir dire.

Legal Issues Presented

Whether the trial court erred in requiring the defendant, over objection, to examine prospective jurors on their voir dire before the State did, and whether such procedure amounted to reversible error.
Whether, under the Criminal Code provision stating that where no special provision is made "the rules of pleading and practice in civil actions shall govern" (Section 344 / § 2406 Burns 1926), the civil practice rule that the party with the burden first examines the jury applies in criminal prosecutions when no statute or court rule prescribes the order.

Arguments of the Parties

Appellant's Arguments

Appellant contended that any affirmative burden imposed on the defendant in a criminal case is to be regarded as prejudicial; specifically, that requiring the defendant to go first in voir dire is a burden which the law should deem prejudicial.
He argued that the established practice in civil cases (that the party bearing the burden of proof examines the jury first) should apply in criminal cases by operation of the Criminal Code provision (Section 344 / § 2406 Burns 1926) directing that civil rules of pleading and practice govern in criminal cases where no special provision is made.

State's Position (as accounted for in the opinion)

The opinion reflects the State's position, implicitly, that no statute or Civil Code provision prescribes which party must first examine the jurors, and consequently the order is a matter for the trial court's discretion.
The State further relied on authority indicating that the order of voir dire and presentation of challenges is within the sound judicial discretion of the trial judge and that such discretion will not be disturbed absent an abuse causing prejudice to the complaining party.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jones v. State (1831), 2 Blackf. (Ind.) 475	Earlier Indiana decision stating that the State ought to make its challenges first (an English-derived practice recognized by this court at that time).	The court described Jones as the only Indiana case directly on the point and noted that its holding (state first) had not been challenged in this court until the present case; but the court treated Jones as an old precedent rather than a controlling modern rule.
Pointer v. United States (1893), 151 U.S. 396	Authority cited in support of the proposition that the order of challenging jurors rests in the discretion of the trial court.	The court listed Pointer among the authorities supporting the conclusion that, absent statute or rule to the contrary, the order is within the trial judge's sound discretion.
Turpin v. State (1880), 55 Md. 462	One of several state cases addressing the order of challenges and voir dire examination.	Listed by the court among authorities showing that the order is left to the trial judge's discretion in the absence of statute or rule.
State v. Pike (1869), 49 N.H. 399	Another state decision on the voir dire/challenge-order question.	Cited as part of the body of authorities supporting judicial discretion on the order of voir dire and challenges.
State v. Flint (1888), 60 Vt. 304, 14 A. 178	State case concerning order of jury examination/challenges.	Included among authorities relied on in concluding discretion rests with trial court.
Johnson v. State (1911), 88 Neb. 565, 130 N.W. 282	State appellate decision on the issue.	Enumerated by the court as part of the weight of authority leaving order to judge's discretion.
Santry v. State (1886), 67 Wis. 65, 30 N.W. 226	State case on voir dire/challenge order.	Listed among the authorities supporting trial-court discretion.
State v. Pierce (1859), 8 Iowa 231	State case addressing the matter.	Included in the court's list of authorities on the question.
State v. Shelledy (1859), 8 Iowa 477	State precedent on voir dire/challenge order.	Listed among the authorities referenced by the court.
Schufflin v. State (1870), 20 Ohio St. 233	State case on the subject.	Cited by the court as part of the supporting authority for judicial discretion.
State v. Boatwright (1857), 10 Rich. (S.C.) 407	State authority relevant to order of challenges.	Included in the list of cases relied upon to show the weight of authority.
Nobles v. State (1906), 127 Ga. 212, 56 S.E. 125	State case addressing the issue.	Enumerated among authorities indicating discretion rests with trial judge.
Nicholson v. People (1903), 31 Colo. 53, 71 P. 377	State precedent on voir dire/challenge order.	Included among the authorities cited for the proposition that order is within trial-court discretion.
State v. Ivey (1874), 41 Tex. 35	State authority considering the order of challenges.	Listed as one of several state decisions the court examined in reaching its conclusion.
Commonwealth v. White (1911), 208 Mass. 202, 94 N.E. 391	State decision on the subject.	Cited among authorities supporting the trial court's discretion in ordering the voir dire/challenges.
Commonwealth v. Piper (1876), 120 Mass. 185	Massachusetts authority relevant to order of jury examination/challenges.	Included in the list of cases relied on for the discretionary-rule conclusion.
Spigener v. State (1878), 62 Ala. 383	Held that the court must require the State first, then the defendant, to accept or challenge a juror.	Identified by the appellant as contrary authority; the court acknowledged Spigener as holding the duty to require State first.
Stewart v. State (1853), 13 Ark. 720	Another case said to require that the State be called upon first regarding juror acceptance/challenges.	Noted by the appellant as authority for requiring the State to proceed first.
Wilson v. State (1858), 31 Ala. 371	Cited in Alabama decisions; characterized by some later Alabama decisions as a leading authority that the order is within trial-court discretion.	Referenced in the discussion of Alabama authorities and cited in Whitesett v. Belue as supporting the discretionary view.
Lyman v. State (1871), 45 Ala. 72	Cited in the chain of Alabama cases noted by appellant.	Mentioned as one of the Alabama authorities cited in the Spigener decision (court observed these were cited by inference rather than direct authority).
Murray v. State (1872), 48 Ala. 675	Another Alabama case cited in the chain relied on by Spigener.	Referenced as among the authorities cited in support of the Spigener inference; the court observed the citation was due to inference from language used rather than direct holdings.
Whitesett v. Belue (1911), 172 Ala. 256, 54 So. 677	Alabama decision citing Wilson as the leading authority and stating the order rests in trial-court discretion absent statute.	Quoted by this court as an example where an Alabama court recognized that the order is a matter resting in sound discretion of the trial court and not revisable absent abuse causing injury.

Court's Reasoning and Analysis

The court began by identifying the single combined question on appeal: whether requiring the defendant to first examine the jurors on voir dire was reversible error. It acknowledged the constitutional guarantee that an accused is entitled to a public trial by an impartial jury, and from that principle observed that the accused must be given every reasonable opportunity to procure a fair and impartial jury.

The court noted statutory provisions allotting twenty peremptory challenges to the defendant (§ 2255 Burns 1926) and the same number to the State (§ 2256 Burns 1926), and observed there is no Indiana statute or court rule fixing the order in which challenges must be exercised or which party shall first examine jurors on voir dire. The Criminal Code provision stating that civil rules of pleading and practice govern "so far as applicable" (§ 2406 Burns 1926) was considered, and the court concluded that this provision refers to the rules declared by the Civil Code; because the Civil Code contains no rule on which party must first examine jurors, it does not supply an order for criminal proceedings.

The court examined prior authority. It described the old Indiana decision in Jones v. State (1831) as having adopted the English practice that the State should first make its challenges, but noted that subsequent state and federal decisions have addressed the question and that the weight of modern authority supports leaving the order to the sound judicial discretion of the trial court. The court listed numerous state cases and Pointer v. United States as authorities reflecting that view.

The opinion acknowledged contrary authority cited by appellant (notably Spigener v. State and Stewart v. State), which the court characterized as holding that the State must be required to proceed first. It also observed that some cases relied on in support of that rule (in Alabama decisions) were cited more for inference from language than for their actual holdings, and pointed to Whitesett v. Belue as an instance where an Alabama court recognized the order is discretionary with the trial judge.

Applying these principles to the instant case, the court asked whether appellant was prevented from having an impartial jury by being required to examine the jurors first. The court found no showing that the jury was partial or unfair, nor any showing that appellant was induced or compelled by the court's action to accept an unsatisfactory jury. Absent a showing of prejudice or injury resulting from the order of voir dire, the court concluded there was no reversible error.

Holding and Implications

HOLDING: The judgment of the trial court was affirmed.

Implications:

The Supreme Court of Indiana held that, in the absence of a statute or rule of court fixing the order of voir dire or the order of peremptory challenges, the question of which party shall first examine prospective jurors is a matter resting in the sound judicial discretion of the trial judge.
The court made clear that requiring the defendant to examine the jurors first is not reversible error unless the defendant shows that such a procedure caused prejudice or injury—for example, that the jury was partial or that the defendant was compelled to accept an unsatisfactory jury because of the order.
Direct effect on the parties: Roosevelt Hicks's conviction and death sentence were affirmed by the Supreme Court of Indiana.
The opinion does not purport to establish a rigid procedural rule changing existing practice; rather it recognizes judicial discretion in the absence of statutory or rule-based guidance and affirms the trial court's exercise of that discretion here because no prejudice was shown. The court noted it might still prefer that the State speak first as the least objectionable practice, but that preference does not create reversible error without a showing of injury.
No new broad procedural statute or mandatory rule was announced; the decision affirms the discretionary approach and affirms the particular judgment on the facts presented.

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HICKS v. STATE OF INDIANA.

1. CRIMINAL LAW. — Accused must be given every reasonable opportunity to procure a fair and impartial jury. — Under the provision of § 13, Art. 1, of the Constitution (§ 65 Burns 1926) that, in all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury, he must be given every reasonable opportunity to procure a fair and impartial jury. p. 402.

2. CRIMINAL LAW. — Section of Criminal Code providing that rules of practice "in civil actions" govern when no special provision therein construed. — Section 344 of the Criminal Code (§ 2406 Burns 1926), providing that in all criminal cases, where no special provision was made therein, "the rules of pleading and practice in civil actions" shall govern so far as applicable, refers to the rules of pleading and practice declared by the Civil Code. p. 402.

3. CRIMINAL LAW. — Examination of jurors on their voir dire. — In the absence of a statute or rule of court to the contrary, the matter of which party shall first examine the prospective jurors on their voir dire is left to the sound judicial discretion of the judge trying the cause. p. 403.

4. CRIMINAL LAW. — Requiring defendant to first examine jury not reversible error. — The action of the court in requiring the defendant, charged with a capital offense, to first examine the jurors on their voir dire was not reversible error in the absence of any showing that he was injured or prejudiced thereby. p. 405.

MYERS, J.

In the court below appellant was indicted, tried and convicted by a jury of the crime of murder in the first degree, and sentenced to suffer death. His motion for a new trial was overruled, and this ruling is assigned as error. The only causes relied on for a new trial may be combined, and this done, the question presented is: Did the court commit reversible error in requiring appellant, over his objection and exception, to first examine the jury on its voir dire?

As we understand appellant, he takes the position that the law will regard as prejudicial any affirmative burden the defendant is required to assume in a criminal case. The 1, 2. Constitution of this state, Art. 1, § 13, known as the Bill of Rights, provides that: "In all criminal prosecutions the accused shall have the right to a public trial by an impartial jury. . . ." From such guarantee, it no doubt follows that the accused must be given every reasonable opportunity to procure a fair and impartial jury. He was charged with a capital offense and, by statute, given the right to challenge peremptorily twenty jurors. § 2255 Burns 1926. The state is also given the same number of peremptory challenges. § 2256 Burns 1926. We have no statute, as do Missouri and New York, nor for aught appearing is there any rule of court fixing the order in which these challenges shall be exercised, or which of the parties to the action shall first proceed with such voir dire examination. But appellant insists that the well-established and recognized practice in civil cases is, that the party having the burden of the issue has the burden of first passing the jury, or to examine the jury first on its voir dire, although there is no provision in the Civil Code requiring it. Hence, it is claimed that the rule of practice in civil cases must be applied in criminal prosecutions, citing § 2406 Burns 1926, wherein it is provided that: "In all criminal cases where no special provision has been made in this act, the rules of pleading and practice in civil actions shall govern, so far as applicable." Our answer to this contention is that this provision of the Criminal Code evidently refers to the rules of pleading and practice declared by the Civil Code, and since there is no provision in the Civil Code on this subject, reference thereto will not supply the omission in the Criminal Code to provide which of the paries shall first pass the jury.

In this connection, our attention is directed to the case of Jones v. State (1831), 2 Blackf. (Ind.) 475, 478, which seems to be the only case in this state where the question here 3. presented has been before this court. In that case, it was said: "If this were a new question and we had it to settle, we should say that the state ought first to make her challenges; but as all the English authorities establish a different doctrine, and no American cases have been seen by us to authorize a different practice, we are bound for the present to sanction what the Circuit Court has done." This rule, reluctantly announced ninety-six years ago, has not, until now, been challenged in this court, nor does it appear to have received legislative attention. But since the decision in the Jones case, courts of last resort in a number of states have spoken upon this question. After carefully reading the opinions of those courts, we have drawn the conclusion that while there is some conflict, yet in the absence of a statute or rule of court to the contrary, the weight of authority leaves the order of challenging petit jurors to the sound judicial discretion of the judge trying the cause, and that such discretion will not be interfered with unless it is clearly made to appear that it has been abused. Pointer v. United States (1893), 151 U.S. 396, 14 Sup. Ct. 410, 38 L.Ed. 208; Turpin v. State (1880), 55 Md. 462; State v. Pike (1869), 49 N.H. 399, 6 Am. Rep. 533; State v. Flint (1888), 60 Vt. 304, 14 A. 178; Johnson v. State (1911), 88 Neb. 565, 130 N.W. 282, Ann. Cas. 1912B 965; Santry v. State (1886), 67 Wis. 65, 30 N.W. 226; State v. Pierce (1859), 8 Iowa 231; State v. Shelledy (1859), 8 Iowa 477; Schufflin v. State (1870), 20 Ohio St. 233; State v. Boatwright (1857), 10 Rich. (S.C.) 407; Nobles v. State (1906), 127 Ga. 212, 56 S.E. 125; Nicholson v. People (1903), 31 Colo. 53, 71 P. 377; State v. Ivey (1874), 41 Texas 35[ 41 Tex. 35]; Commonwealth v. White (1911), 208 Mass. 202, 94 N.E. 391; Commonwealth v. Piper (1876), 120 Mass. 185.

Of the cases decided since the Jones case, appellant has called our attention to the cases of Spigener v. State (1878), 62 Ala. 383, and Stewart v. State (1853), 13 Ark. 720. The effect of these two decisions makes it the duty of the court to require the state first and then the defendant to accept or challenge a juror. In support of the holding in the Spigener case, supra, the court cited Wilson v. State (1858), 31 Ala. 371; Lyman v. State (1871), 45 Ala. 72, and Murray v. State (1872), 48 Ala. 675. These cases were cited because of the inference which the court drew from the language used, and not from what the court actually decided. However, in the case of Whitesett v. Belue (1911), 172 Ala. 256, 261, 54 So. 677, the court cited Wilson v. State, supra, as the leading authority in support of the ruling: "As to the order in which the challenges were required to be presented, our statute has not prescribed any order, and the authorities are clear to the point that this is a matter resting in the sound discretion of the trial court, and will not be revised unless there has been an abuse of that discretion to the injury of the party complaining."

Returning to the instant case, and keeping in mind the command of the Constitution that the accused shall be entitled to an "impartial jury," then, in what respect was appellant prevented from having such a jury? Certainly there is no showing that the jury that tried this case was partial or unfair, or that appellant, through the action of the court, was induced or compelled to accept an unsatisfactory jury.

While this court may still be of the opinion that to require the state to speak first would be the procedure least objectionable, yet, without a showing that in consequence 4. thereof the accused has been injured, no prejudicial error is exhibited authorizing a reversal of the judgment.

Judgment affirmed.

HICKS v. STATE