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 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
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,
The state's position is that none of the acts or omissions were done in bad faith or harmful to the substantial
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, 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,
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.
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.
Since there was not subtantial 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 Replacement, and under the test laid down in Cooper v. State
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. 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.
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.