Fletcher v. Crist et al.

SAME.-Partial Juror.-One who upon his voir dire, in such a case, says that he thinks it is evidence of immorality for a man to engage in the sale of intoxicating liquors, is not impartial, and a challenge for cause should be allowed.

From the Parke Circuit Court.

G. D. Hurley, M. E. Clodfelter and S. D. Puett, for appellant.

B. Crane and A. B. Anderson, for appellees.

MCCABE, J.-The appellant applied to the board of commissioners of Montgomery county for a license to sell intoxicating liquors in a less quantity than a quart at a time, in a certain room in a certain building in the village of New Market, in Brown township, in said county. Upon the hearing the board refused the license and the applicant appealed therefrom to the circuit court of the county, and the venue of the cause was changed to the Parke Circuit Court. A jury trial in that court resulted in a verdict and judgment in favor of the remonstrators and against the applicant over his motion for a new trial. Two remonstrances had been filed before the board, one by the voters of Brown township and one by the voters of Scott and Union townships.

The trial court overruled a motion by the appellant to strike out the remonstrance of the voters of Scott and Union townships, and also a motion to strike out certain portions of each of said remonstrances. The contents of the two remonstrances were alike in all respects. But it is contended by the appellant, that none but legal voters of the township in which it was proposed to sell the liquor were authorized to remonstrate. R. S. 1894, section 7278 (R. S. 1881, section 5314).

As an excuse for the filing of the remonstrance by the voters of Scott and Union townships the appellees contend that it was authorized under the circumstances, be

Fletcher v. Crist et al.

cause the village of New Market, wherein the premises in which it was proposed to sell liquors, is situate partly in all three townships where they corner; and that the appellant's notice of application for license was to the citizens of New Market and to the citizens of all three townships, by naming in such notice all three townships. The statute authorized no one to remonstrate against the granting of such a license but a voter of the township. List v. Padgett, 96 Ind. 126.

However, it is unnecessary to decide whether the voters of Scott and Union townships had a right, under the circumstances, to remonstrate or not. If they had not, the refusal to strike out their remonstrance would be at most a harmless error. Because those who did have a right to remonstrate against the granting of the license had done so specifying the same grounds of remonstrance that the voters of Union and Scott townships had specified; and they continued to vigorously prosecute the same to the end.

If the evidence was contrary to or insufficient to support the verdict, that opposition or insufficiency would not have been either increased or decreased by striking out such remonstrance. The result could not, and would not, have been changed by striking out the remonstrance of the voters of Union and Scott townships. The evidence of unfitness of the applicant to be entrusted with a license was all admissible under the remonstrance of the voters of Brown, township, and the other remonstrance had no influence in producing the verdict or in preventing a verdict the other way.

The motion to strike out parts of the remonstrance went to each and all of the grounds specified therein against the granting of the license. Had the motion been sustained, there would have been no grounds stated in the remonstrance why the license should not be

Fletcher v. Crist et al.

granted. In short, there would have been no facts whatever left in the remonstrance; there would have been no remonstrance left on file. It would have been too late to file a remonstrance in the circuit court had the court sustained the motion to strike out. Miller v. Wade, 58 Ind. 91; List v. Padgett, supra. Had a demurrer been filed to the remonstrance or the several specifications thereof separately for want of sufficient facts, and it had been sustained, the remonstrance could have been amended. Stockwell v. Brant, 97 Ind. 474. We learn from the brief of appellant's counsel that the motion to strike out was designed by them to test the sufficiency of the several specifications in the remonstrance to constitute a defense to appellant's application. A motion to strike out does not, and can not, perform the office of a demurrer. Port v. Williams, 6 Ind. 219; State, ex rel., v. Newlin, 69 Ind. 108; Indianapolis Piano Mfg. Co. v. Caven, 53 Ind. 258.

This case furnishes a strong illustration of the propriety and necessity of the rule. If the facts stated in the remonstrance were relevant, yet insufficient to constitute a defense to the application, or to constitute a sufficient reason why the license should not be granted, and they are struck out on motion, the remonstrator has no remedy, though the most abundant reasons exist why the license should not be granted, because he can not file a new remonstrance in the circuit court, as we have already seen. Had the objection been taken by demurrer, on the same being sustained, he could have amended the remonstrance so as to make its statement of facts sufficient to warrant the refusal of the license. If it be said that the motion to strike out was directed to the several specifications in the remonstrance separately, and that under it portions might have been stricken out, and other portions left in, then we answer

Fletcher v. Crist et al.

that it is the established rule that overruling a motion. to strike out a part of a pleading is not available error. Walker v. Larkin, 127 Ind. 100; McFall v. Howe, etc., Co., 90 Ind. 148; Losey v. Bond, 94 Ind. 67; Morris v. Stern, 80 Ind. 227; City of Crawfordsville v. Brundage, 57 Ind. 262.

The sufficiency of the facts stated in the remonstrance is not attempted to be presented here in any other way than by the motion to strike out. Therefore, we hold that the sufficiency of the facts stated in the remonstrance, and the several specifications thereof, is not presented by the record for our consideration and decision.

One Ed Thomas was called as a juror, and on his voir dire in answer to proper questions, stated that he had a prejudice against saloons, and that his prejudice was strong, though he thought he could lay it aside, and that he hardly believed a man can be a moral man and sell liquor, and that he was opposed to granting license to any person to sell liquor under any circumstances.

Another juror, one James A. Bain, stated in answer to proper questions on his voir dire, that he did not like saloons. Did not know that he would oppose granting a license to sell liquor; that he thinks it is evidence of immorality for a man to engage in the sale of intoxicating liquors; that he expected that he could return a fair and impartial verdict upon the law and the evidence in the case; that he could so far as the law and evidence goes.

Both jurors were challenged by the appellant for cause, but the court overruled the challenges, and the appellant excepted.

We regret that appellee's counsel have wholly failed to notice the argument of appellant's counsel on the question of the competency of these jurors, or to suggest any reason on which it is supposed that the ruling of the

Fletcher v. Crist et al.

court thereon can be sustained, though they have ably briefed the case on other questions involved in the record.

The exact question as to the competency of the juror Thomas was decided against his competency in Keiser v. Lines, 57 Ind. 431. In answer to the question whether a person called as a juror in that case had formed or expressed an opinion as to the merits of the case, the juror answered: "No; but I am opposed to granting license to any person, under any circumstances." The trial court overruled the challenge. This court there said: "We think the challenge for cause should have been allowed. The answer of the juror, that he 'was opposed to granting license to any person, under any circumstances,' was equivalent to saying, that he was opposed to granting license to the appellant, if he established his right to obtain license according to law. That a juror, entertaining such an opinion, was incompetent to sit in the case, is a proposition which seems so plain to us that we think reasons given in its support would be thrown away. The independence, freedom from interest, impartiality, and the unbiased opinion of jurors must be secured to all, or justice can not be administered."

To the same effect are Chandler v. Ruebelt, 83 Ind. 139; Stoots v. State, 108 Ind. 415.

The juror Thomas was afterwards peremptorily challenged by the appellant, so that he did not serve. But that does not cure the error of overruling the challenge. for cause. Brown v. State, 70 Ind. 576.

This court there said: "It can not be correctly said, that these peremptory challenges were allowed for the purpose of correcting the errors of the trial court, in overruling the defendant's challenges for cause. There can be no doubt, we think, that the appellant was prejudiced and injured by the decisions of the court in overruling