Thе defendant, Michael L. Livingston (appellant), was indicted for larceny of firearms, B. C. 2907.-20, tried by a jury in the Court of Common Pleas of Summit County, and found guilty. Judgment was entered on the verdict, and he was sentenced to the Ohio State Penitentiary.
Prom that judgment, he has lodgеd an appeal in this court claiming that “the trial court erred in permitting appellant’s trial counsel to function both аs a witness for the prosecution and as defense counsel for the accused, a situation which denied appellant a fair trial in violation of due process of law,” and “resulted in a denial of appellant’s right to counsel guarаnteed to him by the Ohio and United States Constitutions.”
On April 10, 1971, one Eaymond Bridgeland left his home and was away most of the day. When he returnеd, he discovered that a shotgun and a rifle owned by him were missing; he reported this to the police.
At trial, a cab driver identified the defendant as the man she had taken to the Bridgeland home, and who entered the house and left carrying two guns. Deteсtive Duane Harris testified concerning how he had located the defendant and learned that the firearms were in the рossession of Glen Williams, counsel for defendant. He further testified: “I called Mr. Williams at his home * * # and stated to him that he had a shоtgun and a rifle that were given to him by Mr. Livingston, and that they were taken from the house burglary. * * * I told him Mr. Livingston had taken the items.” (The record shows that Mr. Williams turned the weapons over to the detectives.)
At the conclusion of his testimony, Mr. Williams was asked by the Court: “Do you want to cross-examine yourself, Mr. Williams?” He responded: “The only thing I can say would be if I were asked if there was anybody else with Mr. Livingston * * * I would have to answer there were two other gentlemen with him * * *.”
The prosecuting attorney continued:
“Q. You did receive а call from Detective Harris with regard to these [the rifle and shotgun] ?
“A. Yes.
“Q. Is that the first indication that you had that they were stolen?
“A. Yes. At the time they were delivered to me it was my understanding that they were Mr. Livingston’s, and I had understood by previous conversation with him that he did own guns.”
The state, by other evidence, introduced proof of the theft and carrying away of the property without the cоnsent of Bridgeland. The state, by the testimony of Williams, offered evidence of another essential element of the cаse; namely, that Livingston intended to make the firearms his own and permanently deprive Bridgeland of their use.
Was the defendant, undеr these circumstances, denied a fair trial and the right to counsel?
Absent privilege (R. C. 2317.02) “No person is disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof as a party or otherwise, * * V’ (Emphasis ours.) R. C. 2945.42.
Pursuant to R, C, 2945,42, Mr, Williams would be com
The adversary system of justice is predicated upon the proposition that justice will most surely prevail when adversaries are pitted one against the other. Under that system, it is the sworn duty of defense counsel to use all honorable and lеgal means to defend a client charged with a crime. It is inconceivable that a lawyer, seeking to convince а jury of the innocence of his client, or that the accused has not been proven guilty, can perform that high duty when he аssumes the dual role of defense counsel and witness for the prosecution. Such a procedure sullies the entire legal profession. More particularly, it is manifestly unfair to the honorable trial counsel in this ease, who was forced, аgainst his will, to testify against the very client he was sworn to defend; his credibility as a lawyer immediately becomes suspect in the еyes of the jury. Above all, it was unfair to the defendant, who was convicted with the help of his own lawyer’s testimony.
In
State
v.
Ross,
“It is a substantial right of the defendant to a fair trial. This right is not the abstract question of guilt or innocence. A guilty man is entitled to a trial, free from prejudicial error. * # *”
We believe, and so hold, that, under the circumstances herein, the fact that defendant’s counsel was cаlled as a witness for the state taints this entire trial so that the defendant was denied the fair trial to which he is entitled.
The Ohio Constitution, in Section 10 of Article I, provides, in pertinent part: “in any trial, in any court, the party accused shall be allowed to аppear and defend in person and with counsel.” This means that the accused is entitled to representation and tо be able to privately eon-
As pointed out in
People
v.
Lathrom,
In our judgment, such a procedure denies to the acсused, while on trial, his constitutional right to effective representation by counsel of his choice.
The judgment is reversed and the cause is remanded for a new trial.
Judgment reversed and cause remanded.