Kambieskey v. State

Gregory, O. J. The appellant was indicted in the court below at its February term, 1866, for unlawfully selling intoxicating liquor. He answered as follows, under oath: “ The defendant now comes in person and by counsel, and for answer to the indintment against him says, that the [226] State ought not further to maintain the prosecution thereon, because he says that the grand jury which found and returned the indictment, at the February term of this court, was not legally .organized, and had no competent authority to find and return the same. “And he further says that Silas Colgrove, the present judge of the Wayne Circuit Court, was absent and not in attendance on said court on the first day of said term, and that he had written a letter to the clerk of the Wayne Circuit Court, of which the following is a true copy: “ ‘ Winchester, Ind., February 1,1866. “‘Clerk of the Wayne Circuit Court—Sir: I shall be unable to attend the meeting of the Wayne Circuit Court on Monday next, and you will please have John F. Eibbey, judge of the Wayne Common Pleas, to charge the grand jury. ‘ Respectfully, Silas Colgrove.’ ‘ That said letter, addressed to ‘ the clerk of the Wayne Circuit Court, Centerville, Ind.,’ was, by Robert Corbally, deputy clerk of said court, delivered to said John F. Eibbey, judge of the Wayne Common Pleas Court, and said Eibbey, by virtue thereof, presided as judge of the Wayne Circuit Court, and, as such, presided at the calling and organization of the grand jury, and selected as foreman thereof one James T. Nicholson, and then proceeded to charge said grand jury, which grand jury found and returned this indictment, and the said Nicholson signed the same as foreman, and said grand jury, during said term, acted by virtue of said organization alone; that the said Eibbey was not selected to act as judge of said court on said first day of the term, in the absence of the judge thereof, by the clerk, shei'iif, and auditor of Wayne county, Indiana, nor was any other or different appointment made by said Colgrove of said Eibbey than the one hereinbefore set out; that said letter v¡¡ •- not, on the first day of said court, entered on the order book thereof, nor was any entry thereof made on said order book until February 24th, being the 18th day of the r'cbruary term, when said Colgrove ordered said letter >o be [227] entered on the order book of said court, among the proceedings of said 18th day, nunc pro tunc, as of the proceedings of said first day. J. H. Popp, for appellant. D. E. Williamson, Attorney General, for the State. “And defendant further avers that the proceedings of said first day of this term have, as yet, been signed only by said Silas Colgrove, and that he did not on said first day of said term act as judge of said court, nor discharge any of the duties of said office. And he further avers that nothing was done in regard' to the selection, swearing or charging of said grand jury, or the selection of a foreman thereof, except as herein averred; and that he was not under arrest prior to, nor at the commencement of, said term, nor was he under recognizance to appear before the grand jury, nor before this court.” The State demurred to the answer, and the demurrer was ' sustained. This presents the only question in the case in judgment. It is claimed that the first day’s proceedings, including the impanneling of the grand jury, are void, because Kibbey, who acted as judge, did not sign them. They were signed by the regular judge, who was absent at the time. This was not regular, but it is an irregularity which does not render the proceedings void. 2 G. & H., § 22, p. 9. The appointment of Kibbey was in substantial compliance with the statute. 2 G. & H., § 4, p. 10. It was competent for the court below to order the written appointment of Kibbey to be entered on the order book nunc pro tunc. The judgment is affirmed, with costs.