Owen v. State

396 N.E.2d 376, 272 Ind. 122, 1979 Ind. LEXIS 772
Indiana Supreme Court·Decided November 8, 1979·No. 979S243·Published·Cited by 51 cases

Opinions

PIVARNIK, Justice.

This opinion is occasioned by the filing by appellant Richard Lee Owen, II, of a Motion filed pro se, which, though not in proper form, we will treat and consider as a petition for rehearing.

The appellant was found guilty in St. Joseph Superior Court of the crime of commission of a felony while armed and sentenced to a term of ten (10) years. He appeared pro se in the trial court and before the Court of Appeals, as he does before this Court.

The Fourth District Court of Appeals reversed the conviction based upon the trial court’s denial of defendant’s motion to strike the jury panel. Owen v. State, (1979) Ind.App., 388 N.E.2d 292. Seven issues were raised in that appeal, but because the Court of Appeals found grounds for reversal on the issue concerning selection of the jurors and reversed the conviction of appellant, the remaining six issues were not considered by the Court of Appeals. On petition to transfer to the Supreme Court, we found the Court of Appeals in error in their holding on the juror issue, granted transfer and vacated the decision of the Court of Appeals. In doing so, our opinion, issued on September 5, 1979, considered only the single issue of the selection of the jurors and mistakenly failed to consider the other issues raised by appellant Owen in the Court of Appeals. By his Motion the appellant brings this situation to our attention and requests that we consider the other issues raised in his original appeal. In the furtherance of convenience and avoidance of unnecessary cost or delay, we grant rehearing and our opinions issued on September 5, 1979, are withdrawn and the previous majority opinion on transfer is incorporated in this opinion, which includes consideration of all additional issues raised by the appellant.

The only basis the Court of Appeals used for reversal in Owen v. State, (1979) Ind.App., 388 N.E.2d 292, was the fact that St. Joseph Superior Court judges had appointed two jury commissioners, and the statute in 1969 provided for four jury commissioners for service of the Superior Courts.

Prior to 1969, the statute provided that the judge of the Circuit Court was to appoint two jury commissioners for selection of grand and petit jurors to serve in the various courts of the county. In 1969, the St. Joseph Superior Court reorganized into an integrated court consisting of five judges and enabling statutes were passed by the Legislature structuring the make-up of this Court. Ind.Code § 33-5 — 40—18 (Burns 1975) provided that:

“The superior court shall, in each calendar year, appoint for the next calendar year four [4] persons as jury commissioners, and the law with reference to jury commissioners appointed by the circuit court as now made or may hereafter be made, shall fully govern said jury commissioners as appointed by the superior court in all things, conditions and qualifications, and said jury commissioners shall prepare and draw the jury for the superi- or court, both petit and grand, as the law directs the same to be done by the jury commissioners for the circuit court.”

However, it is important to note the following provision of that statute which is as follows:

“Provided that the superior court may order on what day [of] the term said jurors shall be summoned to attend the court, and that any judge of the court may order the selection and summoning of other jurors for the court whenever the same may be necessary. The said jury drawn by the jury commissioners shall be the jurors, either petit or grand, [379] for the superior court, and they shall serve the entire court, and before any judge of the court where their services may be required: Provided, however, That they need not serve in any particular order in which they were drawn by the jury commissioners provided in their selection to serve before any judge, the selection shall be on a fair and impartial basis.
If at any time a jury shall not be drawn, then the clerk of the court shall select from among the properly qualified residents of such county, a jury for such term who shall be summoned and considered in all things as a regular panel of the court. The court may call one or more juries during any one term, and may by rule provide for how long any jury shall sit. [Acts 1965, ch. 266, § 19, p. 727; 1969, ch. 306 § 4, p. 1279.

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Owen v. State, 396 N.E.2d 376, 272 Ind. 122, 1979 Ind. LEXIS 772 (Ind. 1979).

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