White v. Haynes.

possession, and an accounting for the rents and profits, which had been refused by the appellee.

The prayer of the complaint was for a reconveyance of the land, possession of the same, and an accounting for the rents and profits. The plaintiff also prayed for an injunetion restraining the defendant from conveying the said premises until the final determination of the cause. Copies of the bond of the said White as treasurer and the said deed of conveyance were filed with and made a part of the complaint. The complaint was sworn to.

The appellee demurred to the complaint, and assigned for causes of demurrer that the complaint did not contain facts sufficient to constitute a cause of action, and that there was a defect of parties defendant, in this, that the commissioners of Jay county should have been made defendants. The demurrer was sustained, and excepted to. The plaintiff refusing to amend, judgment was rendered for the defendant, which was excepted to. The sustaining of the demurrer to the complaint is assigned for error, and this is the only question that is submitted for our decision. We think that the facts stated in the complaint constituted a good cause of action, and if true entitled the appellant to the relief prayed for. But it is insisted that there was a defect of parties; that the commissioners of Jay county should have been made defendants. We do not think they were either necessary or proper parties to the complaint. The demurrer admitted the truth of the matters alleged in the complaint. If the facts as alleged were true, the com missioners of Jay county had no interest in the controversy. It was averred that the said White as such treasurer was not a defaulter, and was not in any manner indebted to the county; and that if there ever was a right of action on his bond, it had been for several years barred by the statute of limitations. The appellee might in his answer or cross complaint have shown such a state of facts as would have made the commissioners necessary parties: and in that case he could have made them parties, and had

Rogers v. The State.

the cause delayed until they had been served with process. The court erred in sustaining the demurrer.

The judgment is reversed, with costs; and the cause is remanded, with instructions to the court below to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.

L. Barbour and C. P. Jacobs, for appellant.
W. March, for appellee.

ROGERS V. THE STATE.

JURY.-How Impanelled.-In the criminal circuit court, a jury of bystanders was called, by order of the court, to try an indictment, there being thereon none of the jurors of the regular panel, they being engaged in deliberation upon another cause, which had been submitted to them. The defendant in said indictment objected to be tried by the jury thus called, and demanded to be tried by the regular panel, but his objection was overruled. IIeld, that this was error.

CRIMINAL LAW.-Larceny.-Mental Condition.-Use of Opium.-On the trial of an indictment for larceny, it having appeared in evidence that the defendant was addicted to the habitual and excessive use of opium in some し of its forms, and that at the time of the supposed larceny he had been deprived of his accustomed supply of the drug, he sought to prove by competent testimony what effect such deprivation would have upon his mental condition.

Held, that the evidence so offered was admissible, as tending to show whether the defendant was in such a condition mentally as to be able to commit a larceny.

APPEAL from the Tippecanoe Criminal Circuit Court. WORDEN, J.-The appellant was indicted for larceny, tried, convicted, and sentenced to imprisonment in the state prison.

On the calling of the cause for trial, the jurors of the regular panel were engaged in deliberation upon a cause which had been submitted to them; and, thereupon, the court ordered a jury of bystanders to be called for the trial

Rogers v. The State.

of this cause, which was done; none of the regular panel being upon the jury thus called. The defendant, by his counsel, objected to being tried by the jury thus called, and demanded to be tried by the regular panel; but his objection was overruled, and he excepted.

The defendant was clearly entitled to a trial by jury; and we think it quite as clear that he was entitled to a trial by a jury constituted in some mode provided for by law. Twelve men promiscuously brought together, in a manner not authorized by law, do not constitute a jury such as a person charged with a crime has a constitutional right to demand as his triers. If, under the circumstances, the court had no legal right, against the defendant's consent, to call a jury for the trial of his cause, composed wholly of bystanders, then a fatal error was committed, for which the judgment must be reversed.

We have looked through the statutes on the subject of selecting and impanelling juries, and find nothing that, in our opinion, authorizes the course pursued, under the cir

cumstances.

It may be quite convenient, and quite conducive to the dispatch of business, to proceed with the trial of causes by a jury of talesmen, while the regular panel is engaged in deliberation; but on the other hand, if a party is allowed the regular panel, he escapes some hazard of being made the victim of designing men or professional jurors, who may throw themselves in the way in order to be placed on the jury.

The statutes provide amply for the selection of juries. 2 G. & H. 30. The second section provides that on the first day of the court, the list shall be called, and if twelve do not appear, the court shall cause the sheriff to summon others to supply the deficiency; and if, on the calling of a cause for trial by jury, the panel should not be full, the court shall direct it to be filled. The third section provides for the discharge of the jury at the end of three days from the commencement of the term, if their services are not needed;

Rogers v. The State.

but that if, after such discharge, a jury be demanded, the court shall direct one to be summoned. The sixth section provides that no challenge to the array shall be permitted because of any informality in the impanelling or selecting of such jury. The words "such jury" have reference to any jury impanelled under the circumstances provided for in the act, and to none other.

A later statute provides that where the proper officers have failed to draw or impanel a jury, or where for any cause no traverse jury shall be present at any term of the court, the court may order the sheriff to summon a jury of bystanders, who shall constitute the regular panel for the term. 2 G. & H. 32. Thus it will be seen that there is provision for filling up the regular panel where it is not full, and for impanelling a jury where there is no regular panel; but there is no provision for impanelling a jury of bystanders where there is a regular panel in attendance upon the court. In the criminal code there is this provi-sion: "When a jury trial is demanded, the sheriff shall call a jury in the manner prescribed by law, or as directed by the court." 2 G. & H. 408. The last clause of this provision, "or as directed by the court," does not imply a poweron the part of the court to direct the calling of a jury of bystanders, against the consent of the party to be tried,. where there is a regular panel of jurors in attendance; nor does it authorize the court to direct the sheriff' to call a juryin any other manner than such as is authorized by law.. There is ample scope provided for the direction of the court: in the statutes above cited. We are of opinion that the ruling of the court was erroneous, and therefore, that the judgment must be reversed.

We are also of opinion that an error was committed on the trial of the cause. It appeared from the evidence that the defendant was addicted to the habitual and excessive use of opium in some of its forms; and there was evidence from which it might be inferred that, at the time of the VOL. XXXIII.—35

McCormick v. Hyatt.

supposed larceny, he had been deprived of his accustomed supply of the drug. He sought to prove by competent testimony what effect such deprivation would have upon his mental condition, but the evidence was rejected. We think the evidence was competent, as tending to show whether or not he was, at the time, in a condition mentally, such as to be able to commit a larceny.

The judgment is reversed, and the cause remanded; the opinion to be certified at once, and the clerk directed to give the proper notice for a return of the prisoner. F. J. Mattler, for appellant.

B. W. Hanna, Attorney General, for the State.

MCCORMICK v. HYATT.

FRAUDULENT SALE.-Creditors.-To render a sale for a valuable consideration void for fraud as against the creditors of the vendor, the vendee must have had notice of the intended fraud. APPOINTMENT OF JUDGE.-Jurisdiction.—In a civil action in the circuit court, the court having jurisdiction of the subject-matter and the parties, a change of venue was taken from the regular judge of said court, and he called another judge to try the cause, who appeared and made some orders, and, by consent of the parties, continued the cause till the next regular term of said court. At the next term, the appointed judge did not appear, and the regular judge set down the cause for trial on a subsequent day of that term before another judge, who tried the cause without objection from either party.

Held, that the judge who tried the cause had jurisdiction of the subjectmatter and of the parties.

PARTIES.-Husband and Wife.-Suit by Wife.-In an action by a married woman concerning her separate property, the husband not himself joining in the complaint, in which the plaintiff alleged that she was a married woman, and therefore she joined her husband as a party plaintiff; Held, that there was no error in the fact that nothing was said as to the husband in the verdict or judgment; nor, it seems, would this have been error had the husband been made a party plaintiff properly, by himself joining in the complaint.