Waltermire v. State

O’Malley, C. J. The appellant was charged with and convicted of the crime of abortion under § 10-105, Burns’ 1942 Replacement, § 2428, Baldwin’s 1934. The trial was by jury in the Criminal Court of Marion County, Indiana. It is claimed here that the lower court erred in not sustaining a written request for a special venire. After the commencement of the trial, the special judge who tried the case ordered the sheriff to summon twenty (20) jurors from persons outside the court house. This was done because various members of the regular panel were excused for cause. The appellant objected to the order given the sheriff and then filed a written request that a special venire be selected and ordered to appear at a later date. This request was overruled and the trial proceeded. The record shows the jury accepted and sworn. It is not shown how many of the regular panel were on the jury, nor how many were from those summoned from outside the court house. It is not shown that any one of the jury was in any way disqualified. No objection to going to trial before this jury is shown. This court has held that a failure to object to the jury at or before the trial, constitutes a waiver of any irregularity in the call to jury service. Souerdike v. State (1938), 214 Ind. 523, 527, 15 N.E. (2d) 379, 381. The theory of this holding is that the appellant may have been satisfied with each juror, since nothing to the contrary is shown. In Harlan v. State (1921), 190 Ind. 322, 333, 130 N.E. 413, 417, this court said: _ “A person accused of crime has no constitutional right to be tried by the regular panel of the petit *286 jury, nor by any jury other than an impartial jury composed of jurors possessing the requisite statutory qualifications and selected and impaneled in the mode prescribed by statute.” The right to a special venire is discretionary with the trial court. § 4-3309, Burns’ 1933, § 1271, Baldwin’s 1934; Hawkins v. State (1941), 219 Ind. 116, 37 N.E. (2d) 79. There is no showing that the trial court abused its discretion in refusing the request for a special venire. Having failed to make a timely objection, and no abuse of discretion being shown, the overruling of the request for a special venire did not constitute error. At the conclusion of the evidence the appellant moved for a directed verdict. This motion was overruled and error is predicated thereon. No instruction to that effect was offered, therefore, no question is presented. Jones v. State (1929), 89 Ind. App. 564, 166 N. E. 158. It is likewise claimed that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. There was uncontradicted evidence before the jury from which they could find that the prosecuting witness visited the appellant, a physician, on March 19, 1943, and again three days later, for the purpose of having the appellant perform an operation to cause her to abort; that she was pregnant with child; that he requested payment from her and received twenty-five dollars ($25.00) on the first visit and five dollars ($5.00) on the second; that on each occasion he placed her on a table and inserted a tube in her uterus and told her that would take care of the matter; that on the day following her second visit she became violently ill and as a result of the two treatments aborted; that the abortion *287 was not necessary to save her life; that all of these matters occurred in Marion County and the State of Indiana. Appellant asserts that because the miscarriage occurred on March 24, 1943, the evidence was insufficient to prove the material allegations of the indictment. The indictment charged the use of the instrument on the 23rd day of March, 1943, and that in consequence thereof there was a miscarriage. The date of the miscarriage is not set out, but the record shows that the indictment was not filed for some five (5) days after the miscarriage. Evidence showing the commission of an offense prior to the time of filing the charge and within the period of the statute of limitations is sufficient. Lewis v. State (1918), 187 Ind. 403, 119 N. E. 720. The evidence being sufficient to prove every material allegation in the indictment, the claim of the appellant “That the verdict of the jury is contrary to law and not sustained by sufficient evidence” is not well taken. Cazak v. State (1925), 196 Ind. 63, 147 N. E. 138. Finding no reversible error, the judgment is affirmed. Note.—Reported in 59 N. E. (2d) 123.