Summary
emphasizing the hearing requirements laid out in Barnes and Stevens I
Summary of this case from Easler v. StateOpinion
Gary L. Gerling, Daniel J. McGinn, Gerlings&sMoore, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for appellee.
ON PETITION FOR REHEARING
DE BRULER, Justice.
Appellant has petitioned for rehearing of his appeal, which we decided September 24, 1976 (reported at 354 N.E.2d 727, Ind.). His contention is that this Court failed to consider one of his assigned errors which was preserved and argued on appeal. The error arises from appellant's discovery, after the jury had been sworn and some evidence presented, that one of the jurors was a former co-worker of a defense witness, and had discussed the facts of this case with that witness. The trial court held a hearing to determine whether the juror had formed conclusions as to appellant's guilt, and following the hearing overruled appellant's challenge of the juror for cause. We approved this procedure and result.
Appellant, however, also sought to challenge the juror peremptorily at the same time. We did not treat this issue in our original opinion. We therefore grant appellant's petition for a rehearing upon this issue only.
Appellant relies upon Kurtz v. State, (1896) 145 Ind. 119, 42 N.E. 1102, which was not included in his original appellate brief, to support his position that the trial court was required to entertain his peremptory challenge after the swearing of the jury. In Kurtz the defendant sought to challenge a juror peremptorily after the swearing of he jury. The trial court refused to permit the challenge to be made. This Court noted numerous cases dating back as far as 1842, which held that peremptory challenges could be exercised until the swearing of the jury. 145 Ind. at 123, 42 N.E. 1102. The Court held that after their swearing, it was too late to exercise such challenges unless there was first made a 'motion to set aside the submission' of the case to the jury. The opinion seems to hold that this procedure operates as a discharge of the jury and necessitates the selection of a new panel. We have been unable to discover any cases in which Indiana courts have considered when a trial court must withdraw submission of a case to the jury in order to allow a peremptory challenge.
We now hold that a defendant in a criminal prosecution is not entitled to challenge a juror peremptorily after the jury is sworn. If, as in this case, a prospective juror has given inaccurate responses to voir dire questions, the defendant may challenge that juror for cause, and the trial court shall hold a hearing as described in Barnes v. State, (1975) Ind., 330 N.E.2d 743, and our original opinion in this case, to determine whether the juror is biased. To the extent Kurtz holds that a defendant may be entitled to challenge a juror peremptorily after the swearing of the jury, that case is overruled.
There was no error in the trial court's refusal to allow appellant to challenge the juror peremptorily, and the conviction is affirmed.
GIVAN, C.J., and ARTERBURN, HUNTER and PRENTICE, JJ., concur.