Opinion
Decided November 25, 1931.
Criminal law — Accused voluntarily testifying subject to rules applying to other witnesses — Accused recalled for further cross-examination, after defense rested — Testimony available in chief, admissible in rebuttal — Recalling accused for further cross-examination, after defense rested, not abuse of discretion — Section 13442-8, General Code.
1. Accused who voluntarily takes witness stand is subject to same rules that apply to other witnesses.
2. Accused who voluntarily testified cannot complain because, after defense had rested, court permitted accused to be recalled for further cross-examination.
3. Fact that accused had testified to own guilt did not render incompetent in rebuttal evidence that accused had sought to procure saws while in jail and had threatened prospective adverse witness.
4. Permitting state to recall accused for further cross-examination held not abuse of discretion, though accused had admitted guilt and questions concerned attempt to procure saws while in jail and threats against prospective witness (Section 13442-8, General Code).
ERROR: Court of Appeals for Muskingum county.
Messrs. Graham Graham, for plaintiff in error.
Mr. Charles Leasure, prosecuting attorney, and Mr. P.H. Tannehill, for defendant in error.
The plaintiff in error, Louis Johns, stands charged and convicted of murder in the first degree without recommendation of mercy. He prosecutes error to this court, and only so much of the record as is necessary to show the errors complained of is before us.
It is charged that the trial court admitted certain evidence over objection, and that this evidence is prejudicial to him; and, as a second ground of error, it is advanced that the trial court abused its discretion in the particulars hereinafter enumerated.
It appears from the record in this case that the trial of this cause was continued from day to day, and that upon the morning of the fourth day counsel for the defendant below rested. Immediately thereafter counsel for the state stated that he would like to ask the defendant another question. Whereupon the court made inquiry if the same was for the purpose of further cross-examination, and to this inquiry of the court the prosecutor answered, "Yes." It then appears that the defendant objected. This objection was overruled, and the court made remark: "I am permitting him to re-examine him before you rest. Set your resting aside and open it up for further cross-examination."
Under this ruling of the court the state proceeded to and did further cross-examine the defendant, who in defense had offered himself as a witness in his own behalf, and it was inquired of him if he had not had a conversation with one Stoneking with reference to procuring saws with which he might saw himself out of jail. He was further asked if he had not threatened another material witness for the state, by the name of Hook, in that, if he should testify for the state, he would have his sister see that he was bumped off.
Johns denied having these two conversations with the state's witnesses, and thereupon and thereafter the state called these two witnesses in rebuttal, who testified that they had had conversations with the defendant, and that he had sought to procure the aid of one in securing saws, and had threatened the other.
We understand it to be the well-recognized rule of this state that, when a defendant in a criminal action offers himself as a witness and testifies in his own behalf, he thereby subjects himself to the same tests as ordinarily apply to any other witness in the case. This was the holding of the Supreme Court of this state in Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep., 496. Recently, in the case of Sabo v. State, 119 Ohio St. 231, 163 N.E. 28, the Supreme Court has approved of its ruling previously announced in the Hanoff case. The first proposition of the syllabus holds:
"A defendant in a criminal case voluntarily testifying in his own behalf may be cross-examined as any other witness and cannot claim as a witness the privileges which belong to him solely as the accused."
We think these authorities fully deny the claim of the defendant in that he has been compelled in this case to testify against himself.
The defendant further insists that the rebuttal testimony of Stoneking and Hook was incompetent in view of the fact that, although the defendant had pleaded "not guilty" to the charge, he had on trial admitted his guilt and participation in the crime. It is therefore apparent that the defendant was seeking by his testimony to mitigate his offense, and it was proper on behalf of the state to show any facts that might tend to aggravate the charge and show the consciousness of the guilt of the defendant. We understand the rule to be that it may always be shown that a defendant has sought to suppress evidence, or that he has fled, or made an attempt to flee from the place of the crime, or to break jail, or attempted to do so. This testimony is without question available to the state in chief, and we see no reason why such testimony might not be received in rebuttal when it tends to show the truth and veracity of a defendant who has offered himself as a witness in his own behalf, thereby making his character for truth and veracity an issue in the case. The fact that it may prove certain facts that might have been offered in chief does not change this rule. The record in this case does not show that the defendant has been prejudiced by this testimony, and, in view of the fact that a complete record of this case is not before us, we are unable to say that he has been prejudiced thereby.
It is provided in Section 13442-8, General Code, in defining the procedure of criminal trials:
"4. The state will then be confined to rebutting evidence, but the court, for good reason, in furtherance of justice, may permit evidence to be offered by either side out of its order."
The defendant contends that the court, in this instance, in permitting this testimony after the defense had rested, abused its discretion. We are unable to accede to this view. We think the rule to be as stated in Underhill on Criminal Evidence, Section 358, in the following language:
"Whether a witness, after he has left the stand, shall be allowed to be recalled by the party in whose behalf he testified, or for further cross-examination, is wholly discretionary with the court, and this discretion was held not to have been abused where a witness was recalled after a direct cross, redirect and recross examination."
We believe that the court had a right in the interests of justice, in order that the jury might be fully advised as to the degree of the defendant's guilt, if they so found, to permit this testimony in rebuttal. It does not appear from the record that the defendant was taken by surprise or that the evidence prejudiced him.
A very similar situation is to be found in a Kentucky case, that being the case of Stout v. Commonwealth, 123 Ky. 184, 94 S.W. 15, 13 Ann. Cas., 547. The court therein held:
"In a prosecution for murder, after the accused left the witness stand in his own behalf and all the evidence for the defense was in, it was not an abuse of the court's discretion to permit the commonwealth's attorney to recall the accused and examine him as to a conversation concerning the killing and afterwards to deny his testimony on that point, the commonwealth's attorney having stated that at the time the accused was on the stand in his own behalf, he did not know of the conversation."
This is the exact situation developed in this case, and we believe it to be a correct pronouncement of the law as it applies to this case.
It is the judgment of this court that this cause should be and the same is affirmed.
Judgment affirmed.
MONTGOMERY, J., and MAUCK, J., of the Fourth Appellate District, sitting by designation in the place of LEMERT, J., concur.