Summary
In McClanahan v. State (1954), 233 Ind. 365, 118 N.E.2d 734, this Court considered this issue and concluded the finding of the defendant's age was not an indispensable part of the verdict.
Summary of this case from Cox v. StateOpinion
No. 29,138.
Filed April 14, 1954. Rehearing denied June 2, 1954.
1. CRIMINAL LAW — Writ of Error Coram Nobis — Demurrer — Jury — Verdict — Alleged Misconduct. — Where petition for writ of error coram nobis charged in substance that foreman left jury room at request of jury to obtain from bailiff a book containing the statute pertaining to the charge upon which appellant was being tried and foreman read statute from book to jury and thereafter foreman again talked to bailiff about age of appellant, but petition did not charge foreman left court room or offices of court, or custody of bailiff, and from all that appears from petition, foreman could have been just outside jury room when he conversed with bailiff, a demurrer to the petition was properly sustained. p. 366.
2. CRIMINAL LAW — Trial — Jury — Deliberations — Reading Statute. — In a criminal case the jury determines the facts as well as the law and it is not reversible error for trial court to permit jury in their retirement to read statute defining the offense for which the defendant is being prosecuted and defendant could not be harmed by the reference to annotations since they could afford the jury no possible information. p. 367.
3. TRIAL — Jury — Verdict — Deliberations — Officers of Court — Writ of Error Coram Nobis. — Where appellant's petition for writ of error coram nobis did not disclose appellant was harmed in any manner and verdict was authorized by facts and law, a demurrer to the petition was properly sustained. The officious and unauthorized conduct of bailiff in taking a book to jury and conversing with the foreman outside the jury room would, however, be subject to reprimand by the trial court. p. 367.
From the Huntington Circuit Court, Burr H. Glenn, Judge.
James R. McClanahan was found guilty of second offense of driving a motor vehicle under the influence of liquor and on appeal, the judgment was affirmed. He then filed petition for writ of error coram nobis to which the State filed a demurrer which was sustained. Appellant refused to plead further, and judgment entered accordingly. He appeals. Affirmed.
Claude Cline, of Huntington, for appellant.
Edwin K. Steers, Attorney General, and Carl Humble, Deputy Attorney General, for appellee.
This is an appeal from a judgment for the State, entered on the refusal of the appellant to amend his petition for writ of error coram nobis after a demurrer by the State had been sustained. An appeal had been taken from the judgment on the verdict finding appellant guilty of the second offense of operating a motor vehicle while under the influence of intoxicating liquor, and in McClanahan v. State (1953), 232 Ind. 567, 112 N.E.2d 575, we affirmed the judgment.
The verified petition for the writ charged in substance that while the jury was deliberating on the verdict the foreman left the jury room at the request of the jury, obtained from the 1. bailiff in charge of the jury a book containing the statute pertaining to the charge upon which appellant was being tried, which the foreman took into the jury room and read to the members of the jury; that thereafter the jury had a disagreement about the age of the appellant, and the foreman again left the jury room and talked to the bailiff about appellant's age, and thereafter he returned to the jury room and inserted in the verdict the figure "48" as his age. The petition did not charge that the foreman left the court room or the offices of the court, or the custody of the bailiff, and from all that appears in the petition the foreman could have been just outside the jury room door when he was conversing with the bailiff. See Masterson v. State (1896), 144 Ind. 240, 249, 43 N.E. 138. The finding as to the defendant's age was not an indispensable part of the verdict. Colip v. State (1899), 153 Ind. 584, 589, 590, 55 N.E. 739.
The State contends the reasoning of this court in Mulreed v. State (1886), 107 Ind. 62, 66, 67, 7 N.E. 884, answers the remaining issue, and we agree. In the Mulreed case, 2. appellant contended prejudicial error had been committed by permitting the jury to have in the jury room an annotated copy of the Revised Statutes of 1881. The court said, "it would seem to us that as the jury are authorized by our fundamental law, in all criminal cases whatever, to determine the law as well as the facts, it could hardly be regarded as an available or reversible error, if any error at all, for the trial court to permit the jury, in any criminal cause, to read in their retirement the statute defining the offense for which the defendant is prosecuted in such case. The `annotations' complained of are merely references to decided cases, and could afford the jury no possible information, and could do the defendant no possible harm in the absence of the books referred to."
"In all criminal cases whatever, the jury shall have the right to determine the law and the facts." Article 1, § 19, Constitution of Indiana.
The petition does not disclose that the appellant was harmed in any manner. The verdict was authorized under the facts and the law. If the jury had obtained a copy of Bishop's Criminal 3. Law, which is a general treatise on the common law of crime, as was the case in Newkirk v. State (1866), 27 Ind. 1, a different issue would have been presented.
We do not condone the officious and unauthorized conduct on the part of the bailiff, and we presume the trial judge took appropriate action to reprimand him. But the facts stated in the petition, even though discovered after the ruling on the motion for a new trial, disclose no reason why the judgment should be vacated.
Judgment affirmed.
Draper, C.J., Gilkison, Flanagan and Bobbitt, JJ., concur.
NOTE. — Reported in 118 N.E.2d 434.