176 N.E. 656 | Ohio | 1931
Lead Opinion
This is a criminal case. The defendant in error, Thayer, was indicted by the grand jury of Stark county pursuant to Section 12823, General Code, for having solicited a bribe of $7,500 from the president of a building company that was employed to erect a public hospital for that county, pursuant to plans and specifications drawn by Thayer and under his superintendence as architect.
Thayer was convicted in the common pleas court and judgment of sentence entered against him. He *3 prosecuted error to the Court of Appeals, assigning numerous grounds of error. The Court of Appeals reversed the judgment of the trial court upon two grounds, and remanded the case for a new trial. The state prosecutes error to this court.
The trial court excluded as incompetent two letters offered by Thayer to sustain his defense, which he had written to the building commission about two years after the time fixed in the indictment when the bribe was committed. The trial court held these letters were self-serving in character, and too remote to be of any importance in the case. The Court of Appeals found the letters to be competent, stating reasons why, and that the action of the trial court in excluding them was prejudicial error. We concur in the conclusion reached and action taken by the appellate court with respect to these letters.
The trial court excluded the testimony of certain witnesses offered by Thayer for two purposes: First, to establish an alibi; and, second, to contradict testimony offered by the state tending to establish that Thayer was in Stark county at the time named in the indictment. Thayer contended that at the time named in the indictment he was not in Stark county, but was in Canada on a fishing trip with witnesses whose testimony he was offering in support of his defense of alibi. The trial court rejected this testimony because the fact was admitted by Thayer that he had not given the prosecuting attorney before trial the notice required by Section 13444-20, General Code, known as the alibi law.
The Court of Appeals held that Thayer was not required to give such notice for two reasons, that is to say: First, that Section 13444-20 is unconstitutional, *4 and, second, that even if it were constitutional, the testimony could not rightfully be excluded although it tended to establish an alibi, because the evidence offered was competent on the other ground, that it tended to contradict testimony offered by the state in support of the charge in the indictment.
We cannot concur with the Court of Appeals in the reasons assigned by that court to sustain the unconstitutionality of Section 13444-20. This law pertains to a very important feature of the criminal law. It gives the state some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it quite impossible for the state to ascertain any facts as to the credibility of the witnesses called by the accused, who may reside at some point far distant from the place of trial. Thayer was not denied the right to testify himself fully as to his whereabouts at the time covered by the indictment. To admit such testimony from other witnesses on the ground that it tends to contradict testimony offered by the state is simply an indirect way of nullifying the statute entirely. Manifestly any alibi testimony must, in the very nature of things, contradict the evidence offered by the state, for the obvious reason that if the accused was not in the county and state at the time named in the indictment, then he cannot be guilty as charged, excepting, of course, instances in which he has aided or abetted or induced another to commit the crime during his absence from the place of the crime.
There is another claimed error calling for the reversal of the judgment of conviction entered by the *5 trial court. The trial court appointed a very able lawyer to assist the prosecuting attorney in the trial of this case. This assistant was a man of high standing, both social and professional, in that locality, a man well known and widely known, who no doubt was well known to the members of the jury. It is claimed that certain statements of this assistant prosecuting attorney, made in the presence of the jury, were highly prejudicial to the accused. We quote one of these statements in full: "Now, I can say this to you, Ladies and Gentlemen of the Jury, as an attorney, I probably would in some cases, defend a man even though he were guilty, and do everything that I could to see that he got all his legal rights as a defendant, but I will also say, and I am saying it from the bottom of my heart, that unless the investigation that I would make before giving my consent to go into a case as special prosecutor, convinced me that I was justified in taking that side of the case, I would never — I would never accept the appointment to prosecute a man that I believed from the investigation was innocent of the charge."
This was said directly to the jury. Counsel for the accused at once objected to the statement, and moved the court to declare a mistrial on account of this statement; and the prosecutor then said, in the presence of the jury, "We feel that it is entirely just in the light of the evidence." The court overruled the motion, to which exceptions were saved.
The statement of the assistant prosecutor needs no comment by this court. It speaks for itself, and the impression it must have made upon the jury is quite self-evident. It may well be doubted whether *6 the trial judge could have said anything to the jury at that time or any later time in the trial which would have nullified the effect of the wrong done thereby to the accused. The court by overruling the motion necessarily gave the jury to understand that the statement there made to the jury carried the approval of the trial judge, and particularly so when the prosecuting attorney unhesitatingly and forcibly added his endorsement of the statement of his special assistant to the jury. If the record disclosed no error other than this, the judgment of conviction would have to be reversed for this error alone.
16 Corpus Juris, 908, Section 2257, states the general rule on this subject as follows: "Although there are some decisions apparently to the contrary, it is generally held to be error for the prosecuting attorney in his argument to the jury to declare his individual opinion or belief that defendant is guilty, in such a manner that the jury may understand such opinion or belief to be based upon something which the prosecutor knows outside the evidence."
The following decisions, as indicated by the syllabi quoted below, condemn statements of counsel such as made by the assistant prosecutor in this case, and hold such statements to be clearly erroneous and highly prejudicial to the accused:
Hayes v. Smith,
"8. It is a duty of the trial court which is not merely discretionary, when counsel grossly abuses his privilege to the manifest prejudice of the opposite party, to interpose and admonish the offending counsel and to instruct the jury in regard thereto; and if it failed to do so, it is ground for a new trial.
"9. The form in which an objection to such an *7 abuse of privilege is brought to the notice of the trial court is not material; and when the record shows that the opposing counsel addressed his objections and exceptions directly to the court, and the full record being before the reviewing court, it does not appear that the trial court took any notice thereof, nor that it acted thereon, it will be presumed to have refused to rule out the objectionable matter, and such failure and refusal will be ground for reversal."
Adams v. State,
Nixon v. State,
Broznack v. State,
People v. King,
Jackson v. State,
"In his closing address to the jury the prosecuting attorney used the following language: 'Washington Jackson's wife is brokenhearted over his conduct in connection with this woman. I know what I am talking about. I have been to Greenfield, and heard the evidence before the grand jury, and I know what those people think about this case.'
"Held, that the language is improper, and the trial court having failed to instruct the jury to disregard it, the judgment of conviction must be reversed."
Howard v. Commonwealth,
State v. Iverson,
People v. Quick,
State v. Clark,
"A prosecuting attorney in a criminal case is not bound to make his argument to the jury colorless, or argue both sides of the case, if defendant is represented by counsel, and he may present forcibly the state's side of the case.
"He is not, however, justified in thrusting his personality into the case and expressing his opinion that the defendant is guilty, or stating as a fact anything except what the evidence tends to prove, or which he expects in good faith to prove. If he violates this rule, he is guilty of misconduct.
"Evidence considered, and held, that the prosecuting attorney was guilty of misconduct, which was prejudicial to the substantial rights of the defendant."
State v. Phillips,
State v. Hess,
Reed v. State,
"10. It is highly improper for the prosecuting attorney in a criminal case to declare to the jury his personal belief in defendant's guilt, unless such belief is given as a deduction from the evidence."
State v. Gunderson,
"1. In a prosecution * * * in which the prosecuting attorney states to the jury in his argument, 'I do not come here to try a case unless the defendant is guilty,' it is held, that the interests of justice require a new trial and a resubmission of the case to the jury.
"2. It is improper and professionally unethical for the prosecuting attorney to state to the jury in his argument that he would not be before them unless the defendant was guilty." *11
Hardy v. State, (Tex.App.),
When the assistant prosecutor made the statement to the jury herein quoted, it was the clear duty of the trial judge to at once withdraw a juror and declare a mistrial, as was requested by counsel for the accused. The law is clearly settled by the decisions of courts of last resort in nearly every state in the Union. The judgment of reversal entered by the Court of Appeals is affirmed, for the reasons herein stated.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, ALLEN and ROBINSON, JJ., concur.
JONES, J., concurs in the judgment.
Concurrence Opinion
I concur in the judgment of affirmance on the ground stated, and on the further ground upon which the Court of Appeals placed its judgment of reversal, that prejudicial error was committed by the trial court in refusing to admit testimony offered by the defense tending to establish Thayer's whereabouts during the period from the 10th to the 20th of August. The evidence offered tending to corroborate the testimony of the defendant as to his whereabouts from the 10th to the 20th of August was rejected by the trial court for *12 the reason that defendant failed to give the prosecuting attorney notice in writing three days before the trial of the case of his intention to offer in his defense testimony to establish an alibi on his behalf, as required by Section 13444-20, General Code. The indictment charged Thayer with soliciting a bribe "on or about the 15th day of August." In the trial the state was unable to fix a definite date, upon which the crime charged was committed, it being placed by the state's chief witness from the 10th to the 20th of August, while other witnesses fixed the time from August 10th to August 28th; hence the defendant could not have given such three days advance notice.
The operative effect of the statute therefore as applied in this case deprived defendant of his rights under the due process provisions of the Constitution.
ROBINSON and ALLEN, JJ., concur in the foregoing concurring opinion.
