Click v. State

94 N.E.2d 919, 228 Ind. 644, 1950 Ind. LEXIS 179
CourtIndiana Supreme Court
DecidedNovember 15, 1950
DocketNo. 28,652
StatusPublished
Cited by10 cases

This text of 94 N.E.2d 919 (Click v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Click v. State, 94 N.E.2d 919, 228 Ind. 644, 1950 Ind. LEXIS 179 (Ind. 1950).

Opinion

Gilkison, J.

In the trial court appellant was charged with murder in the first degree, in each of three counts of an indictment. After his motion to quash the indictment was overruled, he entered a plea of not guilty. His trial by jury resulted in a verdict of guilty as charged in the indictment and his punishment was fixed at death by electrocution. A motion for new trial was overruled. From a judgment on the verdict the appeal is taken.

Error is assigned in overruling the motion for new trial. Appellant presents only causes 1-C and 4 of this motion as causes for reversal. We shall limit our consideration to these two alleged errors.

Cause 1-C is objections to questions put to a proposed juror, named Tippmann, in the presence of the other jurors on his voir dire examination by the prosecuting attorney. The first question is as follows: Q. “Mr. Tippmann, I will re-ask the question I asked of you before, it having been propounded to you in your examination previously and within the hearing of the other jurors, also by counsel for defendant—a question concerning the conviction of this defendant for the crime of kidnaping and the fact that he is serving life imprisonment for that crime. That question and that fact has been interjected into the examination of the jurors by defense counsel. It has not been presented to any of the prospective jurors by the state. That question having been asked, I now ask you that should it be shown to be a fact that the defendant, Franklin Click, has heretobefore been convicted or pleaded guilty to the crime of kidnaping and is now serving a life sentence for that crime, as to whether or not you will consider that evidence along with all the evidence in the case in arriving at your verdict.”

“A. If that evidence was submitted in the trial.”

[648]*648Appellant’s objection was as follows: “To the question propounded the defense objects for the reason that it assumes to instruct the jury that they would have a right to consider such evidence as evidence of the guilt of the defendant, whereas such evidence could not be admissible for any purpose except for impeachment of any testimony given by the defendant himself.”

This objection was overruled.

The state then propounded to the proposed juror the following question: “What I want you to understand, and I believe you do—I am asking this question now more for the record—in the event of your selection as a juror in this case you will consider, in arriving at your verdict, all of the evidence that’s presented here from the witness stand.”

A. “Yes.”

Thereupon the following action was taken by appellant: “We now challenge the juror who has answered the question ‘Yes’ for the reason that he stated that he will consider evidence which would not be proper for consideration. The challenge is for cause.”

The challenge was overruled.

Thereupon the appellant moved as follows: “The question having been repeated in the presence of and to each and all of the jurors, we now move that all of the jurors now in the box be discharged because of improper conduct of counsel and improper presentation to them of evidence which could not properly be considered by them.” The motion was overruled. The juror remained and served as a juror in the cause.

It will be noted that the questions propounded by the state to the proposed juror did not assume to instruct the jury that it would have a right to consider the evidence mentioned as evidence of defendant’s guilt. On the contrary it asked [649]*649merely that if such evidence was produced at the trial whether the juror would consider it with the other evidence in the case in arriving at their verdict. There is no showing that such evidence was submitted in the trial, and there is no presumption that the jury would consider the question put to the prospective jury as evidence in the case. The juror’s answer is to the contrary.

From the two questions asked the proposed juror by the state as shown herein, we note that the entire examination of the proposed juror is not in the record. It has been held frequently that this court will not pass upon the competency of a juror unless the entire examination of the juror on his voir dire is set out in the record. Johnson v. Holliday (1881), 79 Ind. 151, 154, 155 and cases there cited; Douthitt v. State (1896), 144 Ind. 397, 401, 42 N. E. 907; The Indianapolis, Peru and Chicago Railway Company v. Pitzer (1887), 109 Ind. 179, 189, 191, 6 N. E. 310, 10 N. E. 70. See also Annadall v. Union, etc. Lime Co. (1908), 42 Ind. App. 264, 266, 84 N. E. 359; Heacock v. Arnold (1929), 90 Ind. App. 476, 477, 169 N. E. 89. Without the entire voir dire examination of the juror before us we find no error in the action of the court in overruling the objections to the questions propounded to the proposed juror; for the same reason we find no error in the action of the court overruling a challenge of the juror for cause.

Our statute, Section 9-1504, Burns’ 1942 Replacement enumerates fifteen different reasons for challenging a proposed juror for cause, and our courts have been liberal in allowing many additional ■ reasons all in an effort to assure a defendant a fair and impartial trial by an unbiased, unprejudiced and disinterested jury of his peers. In an attempt to [650]*650accomplish this desired end great discretion is necessarily vested in the trial judge. Since, on appeal, all presumptions are in favor of the rulings and decisions of the trial court, it is required that the party wishing to question any of those rulings or decisions must save and present them in the record fully in order to overcome the presumptions in their favor. Mercer v. Corbin (1889), 117 Ind. 450, 455, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76; Johnson v. Holliday (1881), 79 Ind. 151, 155, supra. We find no error of the court in overruling appellant’s motion to discharge “all the jurors now in the box” because of the alleged improper conduct of counsel and “improper presentation of evidence that could not properly be considered by them.”

Cause 4 for new trial is made under Clause Eighth of Section 9-1903, Burns’ 1942 Replacement. It is based wholly upon a letter writted by one Ralph W. Lobaugh to Robert A. Buhler, one of appellant’s attorneys under date of December 4, 1949, in which he says that he, Lobaugh, alone killed Phyllis Conine, and' two other women whom he named.

Appellant, on the advice of his attorney, Mr. Buhler, had theretofore made written confession that he alone had killed Phyllis Conine and the other two women. His written confession so made, that he alone had killed Phyllis Conine, was put in evidence without objection, in his trial in the court below. The action of the trial court in admitting this confession in evidence is not questioned on this appeal.

In the trial below appellant put in evidence without objection his own exhibits A and B. Both exhibits are written on stationary of the Ft. Wayne police department, and are as follows:

[651]*651Defendant’s Exhibit A.
“Department of Police “Fort Wayne, Indiana
“Fort Wayne, Indiana, August 21, 1949
“Marie Click Fort Wayne, Indiana

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Bluebook (online)
94 N.E.2d 919, 228 Ind. 644, 1950 Ind. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/click-v-state-ind-1950.