« ForrigeFortsett »
After this class of evidence had been ad The trial judge, of course, was desirous duced at length the court said :
of keeping the record free of error, but "I think I can save a little time here. The testimony having gone to the jury, and there court has been in doubt on the question as to
was much of it, which afterwards was exthe introduction of testimony offered by the cluded on a motion to strike out, the expres. defendants before the grand jury. At the time sion of the court made directly to the jury the objection was made the objection was over that he still had a doubt might have had a ruled. It appears from the testimony offered | tendency to permit the ruled-out evidence to that the defendants now on trial came into the be misapplied by the jury. The court persongrand jury room in response to summons, sub-ally may be cognizant of a well-founded menpænas, and there gave testimony. The court tal reservation, and during the term may cure at this time will sustain the objection to the his own error, on motion for new trial, if testimony offered by the defendants in the grand jury room, and will instruct the jury to
further deliberation on his part suggests such disregard the testimony offered by the defend a course, and same is curable also on review; ants before the grand jury."
but to the jury the trial judge's rulings should be absolute, for, while the view of
the members of that body on questions of fact Notwithstanding this ruling, several wit
may be ascertained by interrogatories, it is nesses thereafter were called by the state to impossible to explore the jury's mind to detestify to what happened when the Bargers i termine the effect of an ambiguous ruling on were before the grand jury. For instance, the part of the court. *French Epps, a member of the grand jury, was called. The following questions and
Without referring to all of the items of answers are noted in his testimony:
evidence, a sufficient number have been point
ed out amply justifying the reversal of the "Q. You may state, Mr. Epps, whether or not judgment by the Court of Appeals on the that examination was done in a rude and un- ground of error in the admission of evidence. gentlemanly manner or in a fair and gentleman. Since the case will go back for another trial, ly manner? A. I would imagine it was very it is suggested that when it again is tried, gentlemanly. I wouldn't see anything out of the way at all, any rudeness that I could see.
in addition to omitting inquiries as to wholly "Q. Was the examination of Mrs. Barger con- irrelevant matters, the salutary rule that ducted in any manner different than that of leading questions be not asked also should be other witnesses? A. I don't think so.
observed. "Q. Did you notice whether or not Mrs. Bar. With reference to the assignment of error, ger was unduly excited ?"
that the requests to charge made by defend
ants before argument were refused, and that Mrs. Mary E. Cheever and Mrs. Mary K. there was error in so refusing, since in a Morgan, both members of the grand jury, criminal case the court is not required to testified similarly.
give requested instructions prior to the arAside from the impropriety of offering and gument, even though they correctly state the receiving this testimony after the court had law, but may instruct on such points in ruled that the evidence taken before the the general charge (Wertenberger 7. State, grand jury was not receivable, these answers 99 Ohio St. 353, 124 N. E. 243), we do not did not tend to prove any issue in the case, at this time pass upon the language of the and, furthermore, they were mere conclu- several requests submitted. On the retrial sions of the witnesses. But the serious er- which will take place it may come about that ror—the statement of the trial judge that the court will so instruct the jury in the he was in doubt as to the admissibility general charge that specific requests, even if of the evidence--if made in the presence of submitted before argument, will not be inthe jury, as evidently it was, was unfortu- sisted upon; that is to say, the order of nate in that it mignt have left the jury in procedure doubtless will be as the developa most uncertain state, especially where, as ments at the trial require, and no hard and here, so many collateral matters were pre- fast rule as to the precise language to be emsented for their consideration.
ployed will at this time be laid down. Refer. Subsequently, when asked to rule with ref- ence will be made hereinafter to the case of erence to an item of testimony which it was Mann v. State, 47 Ohio St. 556, 26 N. E. 226, claimed had been excluded, the court said:
11 L. R. A. 656, and our interpretation of that
case will serve as a guide to be followed on "There is still a doubt in the mind of the the next trial. court as to whether or not the statements of
In the argument of the prosecuting attor. defendants in the grand jury room, on imney to the jury, there having been a dispute peachment, are not proper to go in evidence; but the court will rule now, broadly, that the as to the effect of certain testimony, that
otficial said: testimony of defendants offered in the grand jury room, whether it be in chief, or whether it "It was a weak spot, I believe that was the be for the purpose of impeachment, may be exact word, a weak spot in her story. Should ruled from the consideration of the jury, and the the grand jury have indicted Heath, when the question about it will be resolved in favor of former prosecuting attorney himself did not the defendants."
think that the case could be maintained ?"
(146 N.E.) It is quite possible that this same grand within the provision of section 6830 of the Rejury investigated the transaction against vised Statutes. Heath, but what that body did as regards
"Where one is indicted for accusing or threatHeath was wholly unimportant on this trial. ening to accuse another of a crime punishable
by law, with intent to extort or gain from him It is also quite possible that an investigation money or other valuable thing, the truth of the of these two matters by the same grand accusation may be material for the defense, in jury may have resulted in some of the testi- determining the intent with which the defendant mony serving a dual purpose, but this, in- made the accusation." stead of permitting the Bargers' testimony
In the opinion in the Mann Case this court before the grand jury to have been given to à petit jury, should have constrained the said, at page 563 (26 N. E. 228): court to be more careful to keep out the in “An honest effort on the part of a creditor admissible portions. In any view, the ref- to collect a just debt, by accusing or threatenerence of the prosecuting attorney to the ing to accuse the debtor of a crime with which
the debt is connected, or out of which it arose, opinion of a former prosecuting attorney as having any probative force as to the legality view of the statute. Nor should the statute be
does not, in our opinion, come within the purof the Bargers' claim or claims, if any they construed as covering the case of an owner who had, was improper, since this was not the demands from the offender a reasonable comsubject of “opinion" evidence.
pensation for property which he has maliciousThe prosecuting attorney further said: ly and criminally destroyed, and accompanies The Mr. Stanley who, after the his demand with a threat to accuse the offender
of the crime." finding of this indictment, went to the sheriff's office and asked Mr. Heath in the presence and
In that case the court necessarily was hearing of Mr. Wooley to do all he could to dealing only with the facts involved in the use his influence with the judge of the court of common pleas of Logan county to have this transaction under consideration, which had case postponed and postponed and postponed to do with the destruction of personal propuntil it finally was dropped and forgotten.” erty, and which gave rise to a debt.
In the case at bar the trial court in its As heretofore stated, Earl Stanley was not
charge said: a witness in the case. There was no evi
“A claim for damages for injury to the perdence to show that he represented the Barg
son is not debt, even had it been contained in ers in going to the sheriff's office.
the written communication as alleged to have gument was highly prejudicial. Anything been made and delivered to Heath; the alleged that tended to connect Stanley in fact with written communication threatening to accuse the matter, in so far as it tended to show him was for assault with intent to commit rape, a conspiracy, or a motive, or such relations not being based upon the destruction of properwith the Bargers as would justify coupling ty nor the existence of debt.” his name with theirs or either of them, might
The trial court in its charge also said : be pertinent in argument, but in no possible aspect of the case could the fact of an in
"In this connection, however, you may take dictment against Stanley have been the sub- into consideration as bearing upon the intent ject of evidence, or justify basing an argu- and deliver to Heath such a written communica
of the defendants, if you find they did so make ment on that fact.
tion, threatening to accuse him, the evidence Coming now to the charge of the court, tending to prove the truth of such alleged accomplaint is made that the Court of Ap-cusation; but you can use it and apply it no peals was not justified in its finding that further than in determining the intent defendthe trial court misapplied the rule laid down ants had in making such accusation, if they did in the Mann Case. To determine this ques- so threaten to accuse." tion, it is necessary to understand pre
The court should have refrained from makcisely the record in the Mann Case. Mann ing the statement to the jury that a claim was indicted for threatening William Brig. for damages for injury to the person is not ham and Almyra Brigham with having committed the crime of administering poison to understood by the jury that this sort of
a debt, because thereby it might have been two colts, the property of Mann, with intentclaim was not the subject of settlement; on to extort, etc. The sufficiency of the indict the contrary, the court should have instruct. ment was attacked in the common pleas and ed that any valid claim, even though soundcircuit courts, and was necessarily disposed of by the judgment there, but this court went ment between the parties, if in good faith
ing in tort, was a proper subject of settlefurther, and declared the law, in the second they elected to adjust such a difference. and third propositions of the syllabus, as
While the charge as given may have been follows:
sufficiently clear to a lawyer, it might not “A demand made by the owner upon the of- have been so to the jury; the rule being fender, for a reasonable compensation for prop- that where the jury are given two instrucerty criminally destroyed by the latter, the owner at the time accusing him of the crime, and tions, one proper and one improper, it is not threatening to prosecute him therefor if the to be assumed that the correct instruction demand is not complied with, does not come was followed.
In another part of the charge the court, crime," and also repeated that Heath had said: 1
not been indicted, and finally said it was not “As stated in the beginning of the charge, one within the province of the jury to determine cannot be tried for felony in the state of Ohio the truth or falsity of the alleged charge with until the grand jury of the county wherein which Heath had been accused. And yet the the crime is alleged to have been committed jury at all times were concerned with the has returned an indictment describing and truth or falsity of the charge against Heath setting forth the crime charged. C. C. Heath
as bearing on the question of intent on the has not been indicted and you are not try part of defendants. ing him on an indictment here. Every person charged with crime has the right to be con
The Court of Appeals, therefore, was clear. fronted with the accusation by a lawful indict- ly right in saying the trial court did not ment and to plead thereto, and if a plea is 'not follow the reason and principle declared in guilty' he is entitled to meet his accuser and the Mann Case, supra. While the Mann witnesses face to face and to a public, speedy, Case has been said to go beyond what has and fair trial. C. C. Heath has had no oppor- been held to be the law in other states, we tunity to plead to an indictment charging him think it states the sound rule, and therefore with assault with intent to commit rape. After reaffirm the principle therein enunciated, an indictment is returned by the grand jury against an accused, the only way the truth of and, as hereinbefore stated, the interpretathe crime charged can be ascertained is by a tion now placed upon the Mann Case is to plea of guilty or by the conviction of a petit be used as the basis for instructing the jury jury in a fair trial. C. C. Heath has not plead on the next trial of this cause. ed guilty to a charge of assault with intent to The court also charged the jury as follows: commit rape; nor has he been convicted for such crime by à petit jury; nor has he been indicted if you find they did so threaten to so accuse
"In determining the intent of the defendants, for such an offense. 0. C. Heath.is not on trial now, and it is not within the province of this Heath, you may take into consideration the evijury to determine the truth or falsity of the al- written communication, signed and sworn to
dence tending to prove that an affidavit or leged charge with which he is now alleged to have been threatened with accusation by the by Bonnie F. Barger, threatening to accuse defendants; but rather the duty of the jury is Heath with assault with intent to commit rape to determine whether or not the defendants upon her person, wherein, so far as the court
remembers the evidence, making no claim threatened to accuse Heath with assault with intent to commit rape and thereby and with in- against him for damages in the written commutent to extort money from him. Was the threat nication, and did not mention a civil suit to to accuse Heath made as charged, and if it of money, but, as claimed, the written communi
collect damages or claim any damages or sum was made by defendants, was it made with the cation threatened to accuse him with a crime intent on the part of defendants to extort mon-punishable by law, to wit, assault with intent ey from Heath? If the alleged threat to so
to commit rape. You may consider the eviaccuse him was made with the intent to gain or extort money from Heath within the county of dence tending to prove these facts as bearing Logan and state of Ohio, on or about the time upon the intent of Bargers or either of them, if laid in the indictment, then you would be war. For what purpose and with what intent, if such
you find they did so threaten to accuse Heath. ranted in returning a verdict of guilty."
written communication was sent or delivered to
C. C. Heath? And in determining this ques. The court with propriety might have told tion of intent you may consider the evidence the jury that C. C. Heath was not on trial tending to prove that the defendants were in an in the instant case, and that whatever, if adjoining room of the law office when he, C. any, accusation against him there then was C. Heath, was called to another room of the or ultimately might be was not a matter for same office, where the written communication the determination of this jury. But when known to him, and a verbal proposition that
was delivered to him, its contents read and made the court told the jury that C. C. Heath had he pay money; also the evidence tending to not been indicted, it was quite probable, even prove that money was paid in the sum of $500 though unintended by the court, that the ju- to defendants or to another for them, or for ry would draw the inference that this ab one of them, by Heath, and that it was accepted solved Heath from having committed any as- and taken by defendants. You may also take sault, and therefore the truth or falsity of into consideration, as bearing upon the intent the claimed offense by Heath was not to be of defendants, the evidence tending to prove
that no criminal proceedings or proceeding were considered. While exactly the opposite of instituted against him, that is, by filing an affithis instruction was given at another time, davit against him, charging him with assault such an error, as hereinbefore suggested, is with intent to commit rape; the evidence tendnot thereby cured.
ing to prove that no complaint was lodged The court's observation that Heath had no against him with any magistrate or the proseopportunity to plead to an indictment charg- cuting attorney of the county or any charge ing him with assault with intent to commit upon which an arresting officer could make an rape might have led the jury to infer that tion, as bearing upon the intent of defendants,
arrest. You may also consider in this connecHeath had been deprived of some right if you find they did so threaten to so accuse for which the Bargers were responsible. Heath, the evidence tending to prove that the The court went still further and said, alleged written communication and the mem“Nor had Heath been convicted of suchorandum concerning the alleged transaction
(146 N.E.) were destroyed and thereby placed beyond the was impelled to 80 agree against his will and reach of Heath or any officers of the law, if | by reason of the alleged threat to accuse him you find such papers existed and were so de- of a crime punishable by law, that is, an asstroyed.
sault with intent to commit rape on the person "You may also consider, as bearing upon the of Bonnie F. Barger, and if such threat to so intent of the defendants, the evidence tending accuse him was made for the purpose and into prove that since the payment of the $500 by tent of extorting money from him, he would not Heath to defendants, if you find he did so pay, be bound to pay, notwithstanding the fact, if the silence of the defendants, their conduct, it be so proven, that he signed an instrument in with reference to the threat to so accuse him, writing agreeing to pay." if you so find.
"You may also consider the evidence tending A careful analysis of this portion of the to prove that the defendant Bonnie F. Barger charge, when considered in connection with did not relate the occurrence and circumstances the evidence in the case, inevitably leads to of the alleged act upon which the alleged threat the conclusion that the court erred in what to accuse Heath with assault with intent to may be called the "summing up,” because uncommit rape upon her person, to her husband, due prominence was given to and strained defendant B. B. Barger, until after she had inferences drawn from certain portions of related it to Earl Stanley.
the evidence. "You may consider the evidence tending to prove that opportunity was afforded after the It is the law of Ohio, as declared in time she claims the event at her home took Morgan v. State, 48 Ohio St. 371, 27 N. E. place on the 20th of July, before Earl Stanley 710, that it is not improper for the trial appeared the next morning; and evidence tend- judge to sum up the evidence, providing it ing to prove that there was opportunity to is fairly done. It is apparent from that have communicated it to her husband at the
case that there must be such an analysis lunch hour and through the day; and evidence
as will neither unduly emphasize items of tending to prove that she did not so communicate it to her husband until in the evening of evidence on one side nor eclipse equally im. the 21st day of July, when it was first commu- portant items of evidence on the other side. nicated to her husband in the presence of Earl It is not the purpose of this court to restrict Stanley.
in any wise the judges of that tribunal “You may also consider the evidence tending which Blackstone called "the great court of to prove the acts and conduct of defendants be- common pleas” in giving the jury all the infore and after the written communication re- formation they need as regards the facts propferred to above was sent to or caused to be erly adduced and the significance thereof. bedelivered to C. C. Heath; and you may take into consideration, as bearing upon the intent of cause, after all, every item of evidence beardefendants, if you find they or either of them ing on every relevant circumstance should threatened to accuse C. C. Heath, the evidence be in possession of that body. But jurors are tending to prove the financial condition of the prone to follow the views of the trial judge, defendants, at the time the written communica- and it is known of all lawyers that the triers tion was caused to be delivered to C. C. Heath, of the facts endeavor to ascertain from the if you find such written communication was so judge's rulings what his conclusions are on eaused to be delivered to him.
particular items of evidence. Because of "You may also consider the evidence in de- this, many of the judges give the conventiontermining the intent of the defendants, if you al instruction that the jury in arriving at confind such threat to so accuse Heath was made clusions should not be guided by any supagainst him by the defendants, tending to prove that at the time such communication was made posed belief on their part as to the judge's and delivered to him that he was a public of view of the facts as indicated by rulings durficer serving as an active deputy, sheriff of Lo-ing the course of the trial. gan county, Ohio, and the effect such threat to The instructions just quoted had to do enaccused would probably and reasonably have up-tirely with matters of evidence relating to on him, the age of Heath, the standing and sit-one side of the controversy. For instance, uation of himself and his family, the position the jurors are advised they may take inhe occupies in the community; and if you find to consideration the written communication that such written communication as described in the indictment was made by the defendants signed by Mrs. Barger pertaining to the acor either of them and delivered or caused to cusation against Heath, the court, among othbe sent or delivered to Heath, threatening to er things, saying: accuse him of assault with intent to commit
"Wherein, so far as the court remembers the rape, was it so done with intent on the part of evidence, making no claim against him for damdefendants to extort money from Heath? And ages in the written communication, and did not if you so find, then your verdict should be mention a civil suit to collect damages." · guilty.
“There has been evidence permitted to go to This affidavit, called such in view of the the jury tending to prove that when C. C. classification given it on the trial, was preHeath was sent for and called to the law office pared by counsel for the Bargers. It may or where the defendants were waiting, that he signed certain writing, which writing' has been may not have been of importance that the destroyed, agreeing to pay $500 on or before a
paper was silent with regard to a possible few days after the date he was sent for. If civil suit to collect damages. If the affidavit you find from the evidence that C. 0. Heatb / were made in connection with or supplement
ed by oral statements, it might be that the evidence that the Bargers intended or desired failure of the affidavit to mention the questo destroy the book, or took steps to have it tion of a civil suit would be unimportant or destroyed, and that its destruction was for even unnecessary in the writing; if so, the the purpose of preventing it reaching the ofcourt's instruction above referred to would ficers of the law. This, also, might have be misleading. Whether or not the document been the subject of argument by the state to was as complete as it might have been would the jury, but the court's reference to it as not necessarily conclude the defendants if having been kept from officers of the law they were in good faith in the transaction. certainly must have left the impression upon The affidavit was drawn by counsel; what the jury, although not so intended by the ever omissions there were may have been court, that the mere failure to preserve the due to counsel. Until it was shown that papers was in and of itself condemnation the Bargers withheld something that properly complete. The act was an incriminatory act should have been in the affidavit, such com
or not, depending on the intent, and therement was improper.
fore it was not the proper subject of a oneThe court also advised the jury that in deter- sided reference in the charge. mining the question of intent they may consid
To the same effect is the instruction re er the evidence tending to prove that the de garding silence on the part of the Bargers fendants were in an adjoining room of the after payment was made. There may have same suite while the contents of this paper prevailed a number of reasons for no activwere made known to Heath. This might have ity on the part of the Bargers as regards been the subject of argument of the fact by subsequent proceedings. This again was a the state to the jury, but certainly it was not matter susceptible of fair argument to the jury a matter of sufficient importance to call forth by the prosecuting attorney, but it was not a special instruction, and by referring to it a matter upon which specific instructions by the court emphasized it unduly. An inquiry the court were either necessary or proper. might have disclosed that this procedure was Finally, the court told the jury they might at the instance of Mr. Long, counsel for the consider the fact that Heath was a deputy Bargers, but in and of itself the matter sheriff, also his age, standing, the situation of should not have been referred to in the sum
himself and family, and similar matters, to ming up, unless other obvious deductions determine whether the acts of the Bargers, were drawn.
such as they were, were done with the intent The court told the jury they might take to extort, and instructed that, if the jury so into consideration as bearing upon the ques
found, the verdict should be "guilty." Why tion of intent the evidence tending to prove
not also say that if the Bargers were peothat no criminal proceedings had been insti- ple of standing in the community, and the tuted against Heath by filing an affidavit, and effect of filing an affidavit by Mrs. Barger no complaint lodged against him with any
for the arrest of Heath, a deputy sherift, magistrate or with the prosecuting attorney might bave had a tendency to degrade or of the county on any charge upon which an
humiliate her in the eyes of the public, and officer could make an arrest. It would that if she in good faith believed she had a have been entirely proper to say the jury valid claim, and, having settled it, refrained might take into consideration, as bearing from filing proceedings, then and in that upon the intent, the evidence tending to event the jury should consider such matters show that no proceedings were instituted by also in arriving at their verdict? Or, again, the Bargers, if none were, provided the court why not charge the jury that a deputy sheralso had said it would not necessarily be iff, being more or less familiar with legal profatal to the Bargers' good faith that no proceedings and the methods of violators of law, ceedings in fact were instituted. The Bar- would not be likely to be an easy victim of gers were not required as a matter of law to blackmailers? One need only casually read institute proceedings, and if the claim was
the instruction given by the court to perbona fide and had been liquidated they might ceive the absurdity of it and to realize how have felt disposed to refrain from instituting dangerous a partial summing up always is criminal proceedings, because by doing so
and necessarily must be. they obviously would have called attention to
We think the court erred in this respect, a matter which by them might have been and because of this, and for the other reasons thought humiliating or embarrassing.
given, the judgment of the Court of Appeals The court further instructed the jury to
is aflirmed. consider the evidence tending to prove that Judgment affirmed. the written memorandum was destroyed and thereby placed beyond the reach of Heath MARSHALL, C. J., and ROBINSON, MAT. or any officer of the law. This instruction THIAS, DAY, and ALLEN, JJ., concur. might have been proper if it were shown in JONES, J., not participating.