23 Ohio C.C. (n.s.) 230 | Ohio Ct. App. | 1915
At the September (1914) term of the court of common pleas of Muskingum county, Ohio, the grand jury of said county returned an indictment against Charles Lynch, the plaintiff in error, charging him in four separate counts with murder in the first degree in killing John G. Albert.
In the reply to the plea in abatement setting up this alleged irregularity, after making general denial of the claim thus made by the plaintiff in error, the state by its counsel averred:
“That the said J. F. Bell as mentioned and referred to in defendant’s plea in abatement is and was the same person considered by the jury commissioners of this county at the time they selected names of the jurors for the present year as that indicated and designated by the said commissioners as F. M. Bell of Fourth Ward B., the said jury commissioners then believing that said person’s name to be F. M. Bell instead of J. F. Bell; that the said name F. M. Bell, Fourth Ward B., with others, were by said commissioners selected, written on separaté pieces of paper uniform in size, quality and color, placed in the jury wheel and certified to as jurors for the ensuing year.
“That upon the order of this court of common pleas, the clerk in the presence of the sheriff, judge and jury commissioners, after turning the jury wheel several times, drew therefrom the number of names of the persons to serve as grand jurors specified in said order, among which names was ‘F. M. Bell, Fourth Ward B.’ That the clerk forthwith issued to the sheriff a venire facias commanding him to summon the persons whose names were so drawn as aforesaid to attend as grand jurors at the time and place in the order stated.
“That thereupon, on the 15th day of September,
“That the said J. F. Bell who so served on said grand jury as aforesaid was at said time possessed of the requisite qualifications to act as juror, and was not selected and drawn as a member of said grand jury in any manner other than as herein set forth:
“That at the time the names of the jurors were selected by the said jury commissioners as aforesaid, and at the time of the service of said summons by said sheriff as aforesaid, there was no other F. M. Bell or J. F. Bell living in said Fourth Ward B
Upon a demurrer being filed to the foregoing reply, the court below overruled the same and dismissed said plea in abatement. Under the facts stated, was the action of said court erroneous ? The statutes point out the manner in which the drawing, summoning and impaneling of grand jurors shall
“A challenge to the array may be made and the whole array set aside by the court, when the jury, grand or petit, was not selected, drawn or summoned, or when the officer who executed the venire did not proceed as prescribed by law. But no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names; but such challenge shall only be made before the jury is impaneled and sworn, and no indictment shall be quashed or verdict set aside for any such irregularity or misnomer if the jurors who formed the same possessed the requisite qualifications to act as jurors.”
In the present instance it appears that J. F. Bell was supposed and believed to be the same Bell whose name was selected by the jury commissioners, and whose name was afterwards drawn from the jury wheel to serve as one of the grand jurors, as appears more fully in the reply to said plea in abatement. Taken all in all, in our judgment it was a misnomer at best, and the qualifications of J. F. Bell as a grand juror not having been raised or challenged, and it not having been claimed that he did not have the requisite qualifications to act as such grand juror, said alleged irregularity under the provisions of said Section 11436, General Code, was not such a one, in our judgment, that the plaintiff in error could avail himself of and thereby defeat the state in its right to further prosecute.
In the case of Huling v. State, 17 Ohio St., 583, it is held:
“1. It is a good plea in abatement in a criminal case, that one or more of the grand jurors who found the indictment had not the legal qualifications of such grand jurors.
“2. But mere irregularities in selecting and drawing grand jurors, which do not relate to or affect their personal qualifications as such, must be taken advantage of, if at all, by challenge for cause, and can not be so pleaded in abatement.’3.
The. principle laid down in the foregoing case has since been cited and followed in a number of cases decided by the supreme court of this state, among which are the following: State v. Deiter, 81 Ohio St., 504-5; State v. Barlow, 70 Ohio St., 373, and State v. Elson, 45 Ohio St., 649.
And in the case of Lindsey v. State, 4 C. C, N. S., 409, affirmed in 69 Ohio St., 215, which was a case in this district, the court in its opinion held:
“The errors complained of as to impaneling the grand jury are irregularities only, and not objections to any of the panel as to their qualifications. Sections 5162 and 5167, Revised Statutes, provide for the selection, drawing and summoning of grand and petit juries. Mere irregularities in selecting and drawing grand juries, which do not relate to or affect their qualifications as such, must be taken
“Technical defects in obtaining and impaneling a grand jury, which do not affect the competency of the persons to act, can not properly be made the basis of a motion to quash the indictment or plea in abatement, but must, by express statutory provision, be availed of, if at all, by challenge before the jury is impaneled and sworn.”
And in the case of McHugh v. State, 42 Ohio St., 154, in which the array was challenged for misnomer of a grand juror, it was held:
“It not appearing that the officer had acted in bad faith, or that the accused had been injured by the mistake in any of his substantial rights, the error, if any was committed, afforded no ground of reversal.”
And the judge announcing the opinion in said case said, at page 164:
“An indictment cannot be held invalid for a ‘defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant on the merits/ ”
Can it be said that the plaintiff in error was injured or prejudiced in any of his substantial rights by J. F. Bell acting as a grand juror when his qualifications to act as such were not questioned, especially when we consider that the manner of selecting and drawing juries concerns the public rather than the accused? We do not think so, and we further think that the action of the court below, in dismissing said plea in abatement, was fully
Defects and imperfections which do not prejudice the substantial rights of the accused on the merits do- not invalidate the indictment, and we do not think that the substantial rights of the plaintiff in error were prejudiced by any lack of averment in said indictment advising him more fully of the charge made against him.
Entertaining these views we are of the opinion that the court below was right and did not err in overruling said motion to quash said counts in said indictment.
This is true as between husband and wife, but here an anomalous situation was presented — the plaintiff in error claiming that he was lawfully married to said witness and that she was at the time of the trial his wife, while she claimed that they were never married and that she was not and is not his wife. Without here reciting the testimony offered on this subject, it is sufficient to say that it is not altogether clear that some form of marriage may not have been undertaken by these parties at Newark in 1909, but it is admitted by the plaintiff in error that at the time he ran away with said witness in 1906 she was living in Union City, Indiana, that she was then a married woman, the wife of Frank A. Brown of said city, with whom the plaintiff in error admitted having worked and being well acquainted with; that he afterward never learned, nor made any effort to ascertain, whether or not the said Brown and his wife were divorced, except what said witness told him about a month before their alleged marriage. In addition to the testimony of said witness denying that she was married to the plaintiff in error and that
“The burden of proving that the marriage relation exists between the witness and the accused rests upon the party opposing the competency of the witness. Unless a marriage, valid or at least apparently valid in all respects, is shown to exist at the time the witness is offered, his or her testimony must be received. It is not enough that the parties, supposing the marriage to be valid, had lived together for years as man and wife, and had introduced each other to the world as such. The marriage must be actually and in fact valid, and must have existed in full force and vigor down to the date of the crime alleged. The validity of the marriage will be inquired into on the voir dire examination of the witness, and, if the relation of husband and wife is not found to exist, the witness is competent and must be permitted to testify.”
Again, in the case of State v. Rocker, 130 Ia., 239, 246, it is held:
“There is, of course, a presumption in favor of legality arising from naked proof that a marriage has taken place. But it is a mere presumption of fact, and may be overcome by proof, among other
Following the above authorities, under the proof made that the witness was then the wife of another from whom she had not been divorced and who was then living, the alleged marriage of the plaintiff in error and the witness could not be and was not a valid marriage, and the witness was therefore competent to testify. In permitting her to testify, in our opinion, the court below did not commit error.
It was also urged that the court below erred in admitting as evidence upon the trial the certificates issued by the State Security Bank of Zanesville to the said John G. Albert. These certificates are dated January 17, 1914, February 14, 1914, and June 20, 1914, were issued by said bank to the said John G. Albert and made payable to him,- and were delivered to him as of said dates. In the absence of proof to the contrary, the presumption would be that he retained the possession and was the owner of said certificates until the date of his death. True, the possession of them traced to and found in the plaintiff in error, soon after the crime charged was committed, would not of itself be evidence sufficient to convict him of the crime, but it would be a circumstance for the jury to consider in connection with all the other evidence in the case, including the explanation given, if given, of such possession, and whether satisfactory.
In the charge given, as well as in the refusal of the court to give certain requests of the plaintiff in error submitted to be given in charge, we think there was no error.
Finding no error in the record prejudicial to the plaintiff in error the judgment of the court of common pleas will be affirmed and the case is remanded for execution.
Judgment affirmed.