Smith v. State
Indiana Supreme Court
From Fulton Circuit Court; Smith N. Stevens, Judge. Prosecution by the State of Indiana against Henry Smith. From a judgment of conviction, the defendant appeals.
1Opinion of the CourtHarvey, J.
— In this prosecution of appellant upon an indictment for assault and battery with intent to kill, the court sustained a demurrer to appellant’s plea in abatement.
1. The plea alleged that one member of the grand jury regularly called was excused, and that a substitute member was, at the direction of the court, called by the sheriff from among the bystanders, and was sworn as a member of the jury. A jury so or- ■ ganized is irregular and cannot return an indictment *503which will stand when properly attacked. See Stipp v. State (1917), 187 Ind. 211, 118 N. E. 818. A plea in abatement setting up…
2Cases cited7 opinions
- Needham v. WrightIndiana Supreme Court · 1895
- State v. ComerIndiana Supreme Court · 1902
- Rice v. StateIndiana Supreme Court · 1861
- Rush v. Foos Manufacturing Co.Indiana Court of Appeals · 1898
- Stipp v. StateIndiana Supreme Court · 1918
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3Cited by4 opinions
- Randolph v. StateIndiana Supreme Court · 1928
- Fenwick v. StateIndiana Supreme Court · 1926
- Souerdike v. StateIndiana Supreme Court · 1938
- Price v. StateIndiana Supreme Court · 1929