RUDD v. STATE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 28,768.

Attorney(S)

Clarence E. Benadum and Frederick F. McClellan, Jr., both of Muncie, for appellant. J. Emmett McManamon, Attorney General; John Ready O'Connor and William T. McClain, Deputy Attorneys General, for appellee.

Judges

EMMERT, J.

See more information ...

Smart Summary

Factual and Procedural Background

Walter R. Rudd was indicted by the Madison County grand jury for the April 1949 term in three counts charging murder in the second degree, voluntary manslaughter, and involuntary manslaughter. Rudd seasonably filed a plea in abatement to the indictment alleging violations of statutes prescribing the duties of the jury commissioners and the clerk. After a hearing the trial court overruled the plea in abatement, and Rudd pleaded not guilty. A jury found him guilty of murder in the second degree, and judgment was entered on that verdict. Rudd appealed.

The record of the plea in abatement established several factual matters concerning the grand-jury selection process: Clerk Charles C. Harrold and jury commissioner Ray Houston were members of the same political party; jury commissioner Vernet Turner was not an adherent of the clerk's party and had been appointed in February 1948 but was never instructed by the court as required by statute; Turner did not possess the key to the jury box until after the indictment was returned on April 22, 1949, and until then the clerk had the key; the jury box was not emptied during the last term of court for 1948 before names were placed for the next calendar year as required by statute; each commissioner obtained names from tax schedules but not in the presence of the other; Turner was not present nor notified on March 28, 1949 when the grand jury for the April term was drawn; a name (Walter Stohler) recorded as drawn was never called nor served; on some occasions names known to be of deceased persons, persons under guardianship, or persons insane were stricken by mutual agreement of clerk and commissioners without court order; there was no exclusion of members of the Negro race; and the record contained no evidence of bad faith, fraud, or corruption by the clerk or commissioners.

Legal Issues Presented

Whether the grand jury that returned the indictment against appellant was legally constituted in compliance with the statutes governing the selection, recording, and calling of grand jurors.
If statutory requirements were not followed, whether such noncompliance was "probably harmful to the substantial rights of the objecting party" under § 4-3321, Burns' 1946 Replacement, such that the indictment should be abated.

Arguments of the Parties

Appellant's Arguments

Appellant seasonably filed a plea in abatement alleging violations of several statutes prescribing the duties of the jury commissioners and the clerk in the selection and calling of grand jurors.
Appellant promptly objected to the legality of the grand jury by proper procedure and contended the statutory violations harmed his rights.

State's Arguments

The acts or omissions shown in the record were not done in bad faith and were merely irregularities that did not prejudice appellant's substantial rights.
Section 4-3321, Burns' 1946 Replacement, authorizes liberal construction of the jury-selection statutes and, absent bad faith or probable harm to substantial rights, justifies refusal to abate the indictment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ford v. State (1887), 112 Ind. 373, 376, 14 N.E. 241	The Supreme Court will indulge reasonable presumptions in favor of the regularity and validity of proceedings in lower courts and will not reverse unless the record affirmatively shows material errors.	The court invoked this presumption but examined the record and evidence of statutory noncompliance to determine whether material errors intervened.
State v. Bass (1936), 210 Ind. 181, 184, 1 N.E.2d 927	Supports statutory requirements concerning jury-box handling and the method of drawing jurors; indicates statutory method devised to avoid suspicion of favoritism.	The court relied on Bass to show that failure to follow statutory procedure can render a grand jury unlawful and that such failure undermines selection beyond suspicion of favoritism.
Anderson v. State (1941), 218 Ind. 299, 32 N.E.2d 705	Holds that certain failures (to properly enter and certify names, and to give two days' notice of a drawing) did not violate appellant's substantial rights where matters were of record and corrected before harm.	The court distinguished Anderson: while Anderson found no substantial prejudice under its facts, the court compared facts to determine whether substantial compliance occurred in the present case.
Cooper v. State (1889), 120 Ind. 377, 379, 22 N.E. 320	Mere irregularities in drawing and organizing a grand jury, without fraud or corruption and without prejudice to substantial rights, do not warrant abatement; but timely pleading and allegations of lack of substantial compliance are controlling.	The court applied Cooper to support the proposition that lack of substantial compliance is more than an irregularity and that where timely presented the substantial-rights test controls.
Weer v. State (1941), 219 Ind. 217, 36 N.E.2d 787	Held appellant's substantial rights not harmed where (under its facts) the court ordered twelve grand jurors drawn and deviations did not prejudice defendant.	The court cited Weer as one of several fact-specific precedents and contrasted its facts with the present record to evaluate prejudice.
Dale v. State (1928), 200 Ind. 408, 164 N.E. 260	A plea alleging no record at all of grand-jury names in the order book was sufficient to abate an indictment—constituted no substantial compliance.	The court cited Dale as an example where lack of any record meant no substantial compliance and supported abatement.
State v. Mellor, 13 R.I. 666	Authority referenced for the proposition that mere irregularities not involving fraud or prejudice are not available as a plea to abate an indictment.	Used as authority supporting the general rule that mere irregularities do not warrant abatement absent prejudice or fraud.
Hartsfield v. State (1950), 228 Ind. 616, 94 N.E.2d 453	Cited for the rule that failure to comply with appellate briefing requirements (Rules of Supreme Court) results in waiver of issues not properly argued.	The court relied on Hartsfield to hold that appellant waived his new-trial grounds (insufficiency and contrary to law) by failing to adequately discuss them in his brief.

Court's Reasoning and Analysis

The court identified the only issue properly presented on appeal as the legality of the grand jury that indicted appellant. It began with the general presumption of regularity in lower court proceedings but examined the record of the plea in abatement because the plea alleged statutory violations and was seasonably filed.

On review of the uncontroverted evidence presented at the plea-in-abatement hearing, the court found several clear statutory provisions were disregarded: the statute's requirement that the key to the jury box be retained by one of the commissioners not of the clerk's political party was not followed; the jury box was not emptied at the end of the 1948 term as required; the commissioners did not place names in the box in each other's presence; one commissioner (Turner) was not present or notified for the drawing; a name recorded as drawn (Walter Stohler) never served or was called; and names known to be ineligible were at times stricken by agreement without court order. The court also noted that there was no evidence of racial exclusion from juries and no evidence of bad faith, fraud, or corruption.

The state argued these were mere irregularities and invoked § 4-3321's liberal-construction provision, which prohibits quashing or reversing for failure to follow the act unless noncompliance was in bad faith or was promptly objected to and probably harmful to the substantial rights of the objecting party. The court found § 4-3321 applicable only to Chapter 156 of the 1937 Acts and, because appellant promptly objected and no bad faith was asserted, the decisive inquiry under that section was whether the statutory violations were probably harmful to appellant's substantial rights.

The court explained its interpretation of the statutes: the legislature's detailed procedures for drawing and calling jurors were designed to assure judicial fairness and to place jury selection beyond suspicion of favoritism; it was unreasonable to read § 4-3321 as nullifying those requirements unless an accused could prove at a plea-in-abatement hearing that he was innocent and should not have been indicted. Instead, an accused has the right to insist on substantial compliance with the statutory procedures regardless of guilt or innocence.

Applying precedents, the court acknowledged cases in which deviations were held not to have harmed substantial rights (e.g., Anderson, Weer) but distinguished them on their facts; it also cited cases where lack of any record or other substantial noncompliance required abatement (e.g., Dale, Bass). The court concluded that on the record before it there was not substantial compliance with the statutes governing grand juries and that such lack of substantial compliance was more than an irregularity. Because these matters were promptly presented by plea in abatement (before the plea of not guilty) and the alleged defects could have been corrected by a lawfully constituted grand jury without the expense of a jury trial, the court held appellant's substantial rights were harmed.

Separately, the court reviewed appellant's assignment concerning the sufficiency of the evidence and whether the verdict was contrary to law and found those grounds were inadequately briefed under Rule 2-17(e) and (f), thereby waiving those claims (citing Hartsfield v. State).

Holding and Implications

Judgment Reversed; Indictment Abated.

The court reversed the judgment of conviction and instructed the trial court to abate the indictment because the record showed lack of substantial compliance with the statutory procedures for selecting and calling grand jurors, a defect that probably harmed appellant's substantial rights under § 4-3321 and related authority. The court emphasized that when the issue is properly presented and the record demonstrates lack of substantial compliance, the Supreme Court enforces statutory jury procedures by reversal. The opinion also notes that appellant waived his appellate claims that the verdict was not sustained by sufficient evidence and was contrary to law by failing to adequately discuss those grounds in his brief.

Show full summary ...

RUDD v. STATE OF INDIANA.

1. CRIMINAL LAW — Appeal — Trial — Course and Conduct — Presumptions — Supreme Court Will Indulge Reasonable Presumptions in Favor of Regularity and Validity of Proceeding in Trial Court. — The Supreme Court will indulge all reasonable presumptions in favor of the regularity and validity of proceedings in the lower courts, and will not reverse a judgment unless the record affirmatively shows that material errors intervened in such proceedings. p. 107.

2. CRIMINAL LAW — Indictment and Affidavit — Abatement — Grounds — Selection of Grand Jury — Statutes — Statute Disregarded — No Bad Faith Involved — Objection Promptly Made — Supreme Court Must Decide If Defendant's Substantial Rights Harmed. — Where the defendant by a plea in abatement to the indictment, promptly made objections to the legality of the grand jury by which he was indicted, though alleged violations of statutory provisions concerning the time, manner, method, place, recording and summonsing of the grand jury involved no bad faith, the Supreme Court must determine whether the violations of the statute were harmful to the substantial rights of the defendant. Burns' 1946 Replacement, § 4-3320. p. 110.

3. CRIMINAL LAW — Indictment and Affidavit — Abatement — Grounds — Selection of Grand Jury — Statute — Statute Disregarded — Defendant's Substantial Rights Harmed. — Where the defendant by a plea in abatement to the indictment, promptly made objections to the legality of the grand jury by which he was indicted because of alleged violations of statutory provisions concerning the time, manner, method, place, recording and summonsing of the grand jury, it is difficult to imagine that the General Assembly after prescribing the procedure to be followed by one section of the statute to insure judicial fairness in drawing and calling the grand jury, then by the next section intended to say that none of the requirements mean anything for an accused unless he could prove at a hearing on his plea in abatement that he was innocent and ought not to have been indicted; the proper construction is to hold that an accused, regardless of his guilt or innocence, has the right to insist that there be substantial compliance with the statute, and if these provisions are not substantially complied with, his substantial rights are harmed. Burns' 1946 Replacement, §§ 4-3320, 4-3321. p. 111.

4. CRIMINAL LAW — Indictment and Affidavit — Abatement — Grounds — Selection of Grand Jury — Statute — Statute Disregarded — Defendant's Substantial Rights Harmed. — Where the defendant by a plea in abatement to the indictment, promptly made objections to the legality of the grand jury by which he was indicted because there was not substantial compliance with the statutes on grand juries, the lack of substantial compliance was more than an irregularity, therefore defendant's substantial rights were harmed because these matters were promptly presented before defendant's plea of not guilty, and the alleged offense could have been corrected if promptly presented to another grand jury lawfully constituted before the expense of a jury trial. p. 112.

5. CRIMINAL LAW — Indictment and Affidavit — Abatement — Grounds — Selection of Grand Jury — Statute — Statute Disregarded — Defendant's Substantial Rights Harmed — Supreme Court Can Enforce Compliance With Statutes on Juries by Reversal When Issue Properly Presented. — Where the defendant by a plea in abatement to the indictment, promptly made objections to the legality of the grand jury by which he was indicted because there was not substantial compliance with the statutory provisions concerning the time, manner, method, place, recording and summonsing of the grand juries, such was harmful to defendant's substantial rights and the only way the Supreme Court has to enforce substantial compliance with the statutes on juries is to reverse when the issue is properly presented in a trial court and on appeal. p. 112.

6. CRIMINAL LAW — Appeal — Briefs — Failure To Discuss Reasons for New Trial — Questions Waived. — On appeal from a conviction in a criminal prosecution, where the reasons in defendant's motion for a new trial were that the verdict was not sustained by sufficient evidence, and was contrary to law, any questions concerning these reasons were waived by defendant's failure to discuss them in his brief. Rules of the Supreme Court, 2-17 (e), 2-17 (f). p. 113.

EMMERT, J.

The grand jury of Madison County, for the April 1949 term, returned an indictment in three counts charging appellant with murder in the second degree, voluntary manslaughter and involuntary manslaughter. Appellant seasonably filed a plea in abatement to the indictment, wherein he charged violations of several statutes prescribing the duties of the jury commissioners and the clerk. After a hearing the trial court overruled the plea in abatement, and appellant entered a plea of not guilty to each count of the indictment. Appellant was then tried by a jury, which returned a verdict that he was guilty of murder in the second degree, and from the judgment on this verdict this appeal is prosecuted.

The only issue properly presented here is the legality of the grand jury that indicted appellant. "It is well settled that this court will indulge all reasonable presumptions in favor of 1. the regularity and validity of proceedings in the lower courts, and will not reverse a judgment unless the record affirmatively shows that material errors intervened in such proceedings." Ford v. State (1887), 112 Ind. 373, 376, 14 N.E. 241. Ewbank, Ind. Cr. Law (2d Ed.) § 198, pp. 121, 122.

We have carefully examined the record of all the evidence heard on the plea in abatement, and from the uncontroverted evidence it appears that clear statutory provisions were disregarded concerning the selection and placing of names in the jury box, the security provisions for keeping the jury box locked, the drawing of names for jury service, and the calling of such persons for grand jury service.

Charles C. Harrold, Clerk of the court, and Ray Houston, a jury commissioner, were members of the same political party, and Vernet Turner, the other jury commissioner, was not an "adherent of the same political party as the clerk." Turner was appointed commissioner in February, 1948, but he was never instructed by the court as to his duties as required by § 4-3301, Burns' 1946 Replacement. There is some dispute in the evidence as to why or whose fault it was that Turner did not have the key to the jury box as required by § 4-3304 and § 4-3305, Burns' 1946 Replacement, but it clearly appears from the evidence that he did not begin keeping the key in his possession until after the return of the indictment against appellant on April 22, 1949. Before this time the clerk had the key. The jury box was not emptied during the last term of court for 1948 before more names were placed therein for jury service for the next calendar year, as required by § 4-3304, Burns' 1946 Replacement. State v. Bass (1936), 210 Ind. 181, 184, 1 N.E.2d 927. Both jury commissioners obtained the names from the tax schedules in the county assessor's office, but neither did so in the presence of the other at any time, and it must be inferred that these names were placed in the jury box by each without the other being present. This was a violation of § 4-3304, Burns' 1946 Replacement. The jury commissioner Turner was not present nor was he notified to be present on March 28, 1949, when the grand jury for the April term was drawn from the jury box. The order book record disclosed that the name of Walter Stohler was drawn second from the box for the April term grand jury, but he was never called nor did he ever serve as a grand juror at the April term nor at any other time in 1949. At various times if the clerk or a jury commissioner knew a name as drawn from the box was of a deceased person, or had a guardian appointed for him or was insane, by mutual agreement such name was stricken off the list as drawn without any court order being had. There was no exclusion of members of the Negro race for jury service, nor was there any bad faith, fraud or corruption in any of the acts or omissions of the clerk or either jury commissioner.

". . . The key shall be retained by one of the commissioners not an adherent of the same political party as is the clerk." Section 4-3304, Burns' 1946 Replacement.

". . . the clerks, having first well shaken the box, shall open the same in his office, and in the presence of the jury commissioners he shall publicly draw therefrom such number of names of competent persons as the judge of such court shall have ordered to be summoned as prospective jurors for such court. . . ." Section 4-3320, Burns' 1946 Replacement.

". . . At such original drawing for the term, the names of competent persons first drawn for each court having criminal jurisdiction, in the number specified by the court in such order as prospective grand jurors, shall be summoned as grand jurors for such court for the ensuing term. . . . Provided, That the order of the names as listed in the panel and as called for service shall be the same order as that in which the names are drawn from the box, as herein provided. The clerk shall at the time of drawing such prospective jurors, enter a list of names so drawn, upon the order-book of the court, in the same order in which the names are drawn from the box, and he shall attach his certificate of the fact. The clerk shall issue venires for such jurors as such courts, or the judges thereof in vacation, may direct. The sheriff or bailiff shall then call the jurors to the jury box in the same order as that in which their names are drawn from the box and certified thereto." Section 4-3320, Burns' 1946 Replacement (§ 1, Ch. 156, Acts 1937).

The state's position is that none of the acts or omissions were done in bad faith or harmful to the substantial rights of appellant, that the acts or omissions were merely irregularities, and that, therefore, the trial court properly refused to abate the indictment. The state insists that § 4-3321, Burns' 1946 Replacement, justifies the action of the trial court. This section in part provides:

". . . This act shall be construed liberally, to the effect that no indictment shall be quashed, and no trial, judgment, order or proceeding shall be reversed or held invalid on the ground that the terms of this act have not been followed, unless it shall appear that such noncompliance was either in bad faith or was objected to promptly upon discovery and was probably harmful to the substantial rights of the objecting party." (Section 2, Ch. 156, Acts 1937.)

However, it should be noted that this section only applies to Chapter 156 of the 1937 Acts, and the only section of this act involved in this appeal concerns the time, manner, method, 2. place, recording, and summonsing of the grand and petit juries in such numbers as may have been fixed by order of court. Since no bad faith was involved, and since appellant did promptly object by proper procedure to the statutory violations, we must determine whether the violations of § 4-3320, Burns' 1946 Replacement, were probably harmful to the substantial rights of appellant. Unfortunately, we are not able to obtain much help from the precedents of this state, since each case was decided with reference to its particular facts, and the language of the opinions must be understood in the light of the particular facts involved.

It is difficult to imagine that the General Assembly, after prescribing the procedure to be followed by § 4-3320, Burns' 1946 Replacement, to insure judicial fairness in 3. drawing and calling grand and petit juries, then by § 4-3321, Burns' 1946 Replacement, intended to say that none of these requirements mean anything for an accused unless he could prove at a hearing on his plea in abatement that he was innocent and ought not have been indicted in the first place. It seems to us that the proper construction is to hold that an accused, regardless of his guilt or innocence, has the right to insist that there be substantial compliance with § 4-3320, Burns' 1946 Replacement, and if these provisions are not substantially complied with, his substantial rights are harmed.

In Anderson v. State (1941), 218 Ind. 299, 32 N.E.2d 705, this court, after a review of the authorities, and after noting the provisions of Chapter 156 of the 1937 Acts, held that appellant's substantial rights had not been violated by failure to properly enter and certify the names on the order book, and to give two days' notice of one drawing. The opinion quoted with approval the language of Judge Mitchell in Cooper v. State (1889), 120 Ind. 377, 379, 22 N.E. 320, which is as follows:

"The departures from statutory procedure were that the clerk failed at the time of the first drawing then to enter the names drawn on the order book, that the second drawing did not have two full days' notice, and that in the third, the clerk's entry was delayed. All matters were of record, however, on September 5, 1939, [the indictment was returned December 1, 1939] except the clerk's certificate to the last entry. The plea in abatement was filed December 8th, and thereafter upon the order of the court the clerk's certificate to the record of the third drawing was entered as of the date of the drawing." Anderson v. State (1941), 218 Ind. 299, 303, 32 N.E.2d 705.

"The intervention of mere irregularities in drawing and organizing the grand jury, which involve no charge of fraud or corruption, and which in no way prejudice the substantial rights of the defendant, assuming, in the absence of anything appearing to the contrary, that the body as constituted was composed of persons duly examined and qualified, and not subject to any of the statutory causes of challenge, is not available as a plea to abate the indictment. Whart. Cr. Pl. and Pr. (9th ed.), section 350; State v. Mellor, 13 R.I. 666."

But in the Cooper case, supra, it is quite clear that the plea in abatement was not timely filed, and it failed to allege absence of substantial compliance with the law on grand juries.

In Weer v. State (1941), 219 Ind. 217, 36 N.E.2d 787, this court held that appellant's substantial rights had not been harmed because the court ordered twelve grand jurors drawn, and the order book did not show the names of those who did serve, nor was he harmed by the fact that the drawing was done in a small wood and glass enclosure in the clerk's office used by him for private conferences.
In Dale v. State (1928), 200 Ind. 408, 164 N.E. 260, a plea in abatement which alleged no record whatever of the names of the grand jury in the order book, was sufficient to abate the indictment. This clearly was no substantial compliance.
In State v. Bass (1936), 210 Ind. 181, 1 N.E.2d 927, the plea in abatement alleged that "there was opportunity for names to be inserted in the box by others than the jury commissioners; that the names of two who were active in seeking an investigation of the matters involved in the indictment were in the box," and that the name of one of the jury commissioners was drawn from the box for both petit and grand jury service. This court held such violations made the grand jury an unlawful jury, and its indictment subject to abatement.

Since there was not substantial compliance with the statutes on grand juries we are of the opinion that the substantial rights of appellant were harmed, both under § 4-3321, Burns' 1946 4, 5. Replacement, and under the test laid down in Cooper v. State (1889), 120 Ind. 377, 379, 22 N.E. 320, supra, and subsequent cases following its reasoning. A lack of substantial compliance is more than an irregularity. These matters were promptly presented before a plea of not guilty, and the alleged offense could have been promptly presented to another grand jury lawfully constituted before the expense of a jury trial. As was stated in State v. Bass (1936), 210 Ind. 181, 184, 1 N.E.2d 927, "Our statutory method of drawing juries was devised for the purpose of putting the selection beyond suspicion of advantage or favoritism." The only way this court has to enforce substantial compliance with the statutes on juries is to reverse when the issue is properly presented in the trial court and here.

Appellant's brief fails to comply with Rule 2-17 (e) in presenting his causes for a new trial that the verdict was not sustained by sufficient evidence, and was contrary to law. 6. Approximately one-half page in the "argument" section is devoted to each cause. Neither cause is supported by applicable points of fact or law. Such causes for new trial are waived. Rule 2-17 (f); Hartsfield v. State (1950), 228 Ind. 616, 94 N.E.2d 453.

Judgment reversed, with instructions to abate the indictment.

NOTE. — Reported in 107 N.E.2d 168.