Summary
In Smith, the prosecution argued that its improper comments were harmless in view of the sufficiency of the evidence to sustain a conviction.
Summary of this case from State v. MaurerOpinion
No. 22959
Decided March 30, 1932.
Criminal law — Cross-examination limited to relevant facts developed or admissible in chief — Cross-examiner makes witness his own, and bound by testimony, when — Cross-examination on irrelevant matters, within court's discretion — Questions excluded where disparaging examination unjust to witness, and uncalled for — Prejudice presumed from disparaging cross-examination of witness.
1. A witness in a criminal case or a party may be properly cross-examined as to all relevant facts developed by the examination in chief and as to such other relevant facts as the party calling such witness could have inquired in order to make out his case. If the cross-examiner goes beyond this scope, he makes the witness his own, is bound by his testimony, and as to such matter subjects the witness to cross-examination by the party calling him. ( Legg v. Drake, 1 Ohio St. 286, approved and followed.)
2. The limits to which a witness or a party may be cross-examined on matters not relevant to the issue, for the purpose of judging his character and credit from his own voluntary admissions, rest in the sound discretion of the court trying the case. Such questions may be allowed when there is reason to believe they will tend to the ends of justice; but they ought to be excluded when a disparaging course of examination seems unjust to the witness and uncalled for by the circumstances of the case. ( Wroe v. State, 20 Ohio St. 460, approved and followed.)
3. When a disparaging course of cross-examination, unjust to the accused and uncalled for by the circumstances of the case, is indulged in, prejudicial error will be presumed.
ERROR to the Court of Appeals of Cuyahoga county.
H. Lindale Smith, plaintiff in error here, was charged by indictment with having, between the 20th day of December, 1928, and the 30th day of March, 1929, as treasurer of the Union Wire Iron Company, embezzled certain money in the amount of $17,946.95. He was tried to a jury in the court of common pleas of Cuyahoga county, Ohio, and convicted. The Court of Appeals of Cuyahoga county affirmed the conviction, and error is prosecuted here to reverse the judgment of the Court of Appeals.
Plaintiff in error complains that there was error in the record in the following respects:
(1) There was no evidence that defendant converted these funds to his own use.
(2) There was no proof in the record that the Union Wire Iron Company is a corporation.
(3) Error of the court in the admission of testimony on the part of the state, to which objection and exception was taken.
(4) Error of the court in the rejection of testimony offered by the defense.
(5) Misconduct of the prosecutor in so questioning the accused as to create in the minds of the jury the impression that a conviction in this case would assist the prosecuting witness civilly, and error of the court in permitting the adduction of such testimony.
The record discloses that during the examination of E.B. Murray, a witness called for the accused, the following testimony was elicited upon cross-examination by counsel for the state:
"Q. Mr. Murray, you said you were connected with the Consolidated Bankers Mortgage Company? A. Yes.
"Q. Was Smith connected with that concern? A. Yes.
"Q. What was your position with the Consolidated Bankers Mortgage Company? A. Secretary and Treasurer.
"Q. What was his position? A. President.
"Q. Did you know that the Consolidated Bankers Mortgage Company went into receivership?
"Mr. Connell: Objection on the ground of immateriality, your Honor.
"The Court: Sustained. Well, let's see; what do you claim for it, Mr. Freed? (Conference had between court and counsel.)
"The Court: Go ahead.
"Mr. Freed: What was the last question? (Former question read.)
"Mr. Connell: Objection.
"Q. Did you know that? A. Yes, sir.
"Mr. Connell: Wait a minute, may I have a ruling, please?
"The Court: Overruled.
"Mr. Connell: Exception.
"Q. Were you connected with the Guarantee Estates Security Company? A. Yes.
"Mr. Connell: Objection, immaterial, exception.
"Q. Was Mr. Smith connected with that concern? A. Yes.
"Q. What was your connection with the Guarantee Estates Security Company? A. Secretary and treasurer.
"Q. What was his position? A. President.
"Q. Did you know that this company went into receivership? A. Yes, sir.
"Mr. Connell: Objection. May I have a ruling for the record, your Honor?
"The Court: Overruled.
"Mr. Connell: Exception.
"Q. Were you connected with the Guarantee Discount Company?
"Mr. Connell: Objection and exception again.
"A. The Guarantee Estates Company was successor to the Guarantee Discount.
"Q. And you were connected with the Guarantee Discount, were you not? A. No, that was changed to the Guarantee Estates Company, the same company.
"Q. You were connected with the Euclid Loan Company? A. Yes.
"Q. What was your position in that? A. Secretary.
"Q. What was Smith's position in that Company? A. President.
"Q. Did you know that that company went into receivership?
"Mr. Connell: Objection to that.
"The Court: Overruled.
"Mr. Connell: Exception.
"A. Yes.
"Q. What connection did you have with the Foundation Securities Company, if any? A. None.
"Mr. Connell: Objection to that and exception.
"Q. What connection, if any, did you have with the Lindale Estates Company? A. None.
"Mr. Connell: Objection and exception.
"Q. What, if any, connection did you have with the Edwards, Smith Glarvin Company? A. None.
"Mr. Connell: Objection and exception.
"Q. What, if any, connection did you have with The Edwinlee Realty Company? A. I was secretary for a time.
"Q. What position did Smith hold in that? A. President, as far as I know.
"Q. Did you know that that company was restrained by the Common Pleas Court from transferring or disposing of any property?
"Mr. Connell: Objection.
"Q. In the same — will you permit me to finish?
"Mr. Connell: Go ahead, I thought you were finished when you stopped.
"Q. Mr. Freed: What was the beginning of my question?
"Q. (Last question read.)
"Mr. Connell: Object.
"Q. In the same order —
"Mr. Connell: I thought you were finished. Go ahead.
"Q. In the same order in which the receiver was appointed for these other companies? A. No.
"Mr. Connell: Objection to the question, your Honor.
"The Court: Overruled.
"Mr. Connell: Exception.
"Mr. Freed: That's all."
It further appears from pages 338 to 341 that plaintiff in error was inquired of on cross-examination by counsel for the state as follows:
"Now, you were connected with the Guarantee Estates Company, were you not? A. Yes, I was.
"Q. It went into receivership, did it not? A. I was vice-president of that and it went into dissolution.
"Q. In receivership? A. Receivership and subsequent dissolution.
"Q. Isn't it a fact that the Court of Appeals, at the instance of the receiver of the Service Mortgage Company, appointed a receiver for those two companies with which you were connected? A. Yes, for the purpose of dissolution.
"Q. And when you say the journal entry so recited that it was for the purpose of dissolution? A. That was the purpose of the action which has been taken by the stockholders of both of those companies a year previous to that, to dissolve the corporation.
"Q. You were connected with the Guarantee Discount Company, were you not? A. I was vice-president.
"Q. And that went into receivership? A. That did for dissolution.
"Q. And the Edwards Land Company? A. The Edwards Land.
"Q. And that went into receivership, did it not? A. For dissolution, yes, sir.
"Q. And that was the company which had originally held these mortgages? A. Yes, sir.
"Q. All this property; and the Foundation Securities Company? A. Yes.
"Q. That went into receivership? A. That had been out of business for a good many years.
"Q. Isn't it a fact that in that connection, at the request of the receiver of the Service Mortgage Company, the Court was requested to appoint a receiver for that company with which you were connected? A. Yes, but that company had not been functioning for a good many years.
"Q. And isn't it a fact that the Court did appoint a receiver for that company? A. I believe the Court did.
"Q. Now, isn't it a fact that you were an officer of the Lindale Estates Company? A. Yes.
"Mr. Connell: Objection to the line of inquiry, your Honor, now on the ground of immateriality of all this to the claim we have here, the claim the state makes here.
"The Court: Overruled.
"Mr. Connell: Exception.
"Q. Will you answer my question, please? A. Yes; I say that company had been out of business for several years.
"Q. Isn't it a fact, though, that the Court did appoint a receiver for that company in that action? A. If it was possible for the Court to appoint a receiver —
"Q. Just answer the question, Mr. Smith; did the Court appoint a receiver or did it not? A. I think it did.
"Q. All right. You were an officer of the Edwinlee Realty Company? A. Yes, sir.
"Q. Isn't it a fact that in that same action the Court restrained The Edwinlee Realty Company from disposing of any of its assets or any of its property? A. It did.
"Q. You were also an officer of the Edwards, Smith Garvin Company, were you not? A. Yes.
"Q. Is it not a fact that in the same action the Court appointed a receiver for all of these companies in one group? A. It certainly did."
At page 343 of the record is found the following cross-examination of the accused:
"Q. You represented the Taylor family from October of 1927 until April of 1930, did you, Mr. Smith? A. Yes.
"Q. And during that period of time how much fees did you charge them for taking care of that business?
"Mr. Connell: Wait a minute, please; objection to that question, your Honor, the fees that Mr. Smith charged.
"The Court: What do you claim for that? (Conference had between Court and counsel.)
"The Court: Go ahead, Mr. Freed.
"Mr. Connell: Exception.
"Mr. Freed: Read the last question. (Last question read.)
"Mr. Connell: Objection.
"A. I am not able to answer that, but I believe you have the checks.
"Q. Now, Mr. Smith, I am going to hand you checks here numbered State's Exhibits 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32, and ask you to examine those checks and tell this jury whether or not you charged that sum of $3,600.00 as attorney fees during that period of time?
"Mr. Connell: Objection, your Honor, to the question.
"The Court: Overruled.
"Mr. Connell: Exception.
"A. I can't tell you what these checks total, but whatever these checks are, if they total that, that is what was charged.
"Q. That is what was charged; now, will you examine those checks and tell this jury whether or not it is true that in 90 per cent. of these checks you filled out your name and the amount of those checks, and asked them to sign it? A. I certainly did, all except the company checks. The company checks are not in my handwriting, but all to me from Jane I. Taylor I filled out.
"Q. I mean these individually. Isn't it a fact, look at The Union Wire Iron Company checks and see if a large portion of these are not made out in your own handwriting. A. Some of them appear to be; I was treasurer of the company.
"Q. All right; you were treasurer of the company, and you had charge of the financial matters of this company. A. I did not.
"Q. What did you do for this money then? A. I had charge of the reserve fund of the company; I had charge of the credits of The Union Wire Iron Company; I had charge of the litigation of The Union Wire Iron Company and, in a general way, I had supervision of that entire business.
"Q. You had supervision of that entire business? A. Yes, in a general way.
"Q. Now, what do you mean by 'In a general way?' A. Well, I was in touch with the business every day, saw that it met its payroll every Saturday, had a report of every contract which was proposed, and on every credit which was to be extended under that report, and the collections, and the daily report on the bank balance.
"Q. And for those services you charged these amounts? A. Why, certainly.
"Mr. Freed: We offer these in evidence if the Court please, at this time.
"Mr. Connell: Objection.
"The Court: In view of the testimony of the witness I don't see the necessity of putting them in evidence.
"Mr. Freed: If the Court please, I think the evidence that these checks are made out by them, I think it is competent evidence to go to the jury.
"The Court: He has testified to that.
"Mr. Connell: We renew our objection on the ground of immateriality to this lawsuit.
"The Court: The objection will be sustained as to the checks, but the testimony may stand.
"Mr. Freed: Very well, your Honor."
At page 356 are found the following questions and answers:
"Q. Now, will you answer this: In what way could the Taylor family ever prove that that was their property unless you were being on trial today?
"Mr. Connell: Unless what?
"Mr. Freed: Unless you were being on trial today.
"Mr. Connell: Objection to that question, your Honor.
"The Court: He may answer.
"Mr. Connell: Exception."
And finally, at page 358 of the record:
"Q. Now, if you chose, not to deliver this property to them it would be their testimony against yours?
"Mr. Connell: Object to the speculative question, not, your Honor.
"The Court: He may answer.
"Mr. Connell: Exception."
Messrs. Squire, Sanders Dempsey, Messrs. Stanton Connell and Mr. Harry J. Crawford, for plaintiff in error.
Mr. Bay T. Miller, prosecuting attorney, and Mr. Thomas A. Burke, Jr., for defendant in error.
What could have been the purpose of this line of cross-examination of Murray? Murray was not inquired of concerning these other companies in his examination in chief, and, had plaintiff in error's counsel attempted it, it would have been incompetent.
It would have been just as competent for plaintiff in error, as reflecting upon the improbability of his guilt, to have called witnesses to prove that he was connected with other concerns for which receivers were not appointed.
Counsel for the state insist that this testimony was highly significant; that by such testimony he was attempting to show that plaintiff in error in fact owned the Edwinlee Realty Company. We see no connection in the records between these companies, or any relations had by these companies with the Edwinlee Company except the Edwards Land Company or the Edwards, Smith Garvin Company. (Both names are used and the court cannot say whether they are one and the same company or not.)
It is further sought to justify this cross-examination of Murray and plaintiff in error on the ground that a suit was brought against several companies in which plaintiff in error was an officer, and in which suit the Edwinlee Realty Company was restrained from disposing of any of its assets or property.
We think this is rather far-fetched. What was the purpose of showing the amount of fees plaintiff in error was paid by the Taylor family, and the manner in which they were drawn, and a narration of the services he had performed in order to earn them? On what issue in the case did this testimony reflect? Why the argument of propositions of law with plaintiff in error on cross-examination? Note the question at page 356 of the record: "Now, will you answer this: In what way could the Taylor family ever prove that that was their property unless you were being on trial today?" Again, on page 358 of the record: "Now, if you chose, not to deliver this property to them it would be their testimony against yours?" On what issues in the case does this testimony bear?
We are not unmindful that the law allows much latitude in cross-examination of the accused in criminal cases, but can counsel be permitted to pursue a course of cross-examination regardless of the relevancy and competency of the testimony, the natural tendency of which would be to prejudice the minds of the jury? The scope of legitimate cross-examination was defined in Ohio in the old case of Legg v. Drake, 1 Ohio St. 286. We quote paragraphs four and five of the syllabus:
"When a witness is produced and examined by a party in an action, even though he be interested to testify against the party calling him, the other party is not limited, in his cross-examination, to the subject matter of the examination in chief, but may cross-examine him as to all matters pertinent to the issue on the trial; limited, however, by the rule, that a party cannot, before the time of opening his own case, introduce his distinct grounds of defense or avoidance, by the cross-examination of his adversary's witnesses.
"When the cross-examination is extended to topics disconnected with the particular facts disclosed in the direct examination, leading questions to the witness may be proper or improper, according to circumstances, and the control of this must rest within the discretion of the court."
This has been the rule governing cross-examination in Ohio for more than three-quarters of a century. This court is not departing from that rule in the slightest degree, but we do abbreviate, simplify and extend the rule, as follows:
"A witness may be properly cross-examined as to all relevant facts developed by the examination in chief and as to such other relevant facts into which the party calling such witness could have inquired in order to make out his case.
"If the cross-examiner goes beyond this scope, he makes the witness his own, is bound by his testimony, and as to such matter subjects the witness to cross-examination by the party calling him."
When this rule is exceeded in the cross-examination of an accused person, the effect is to compel the accused to be a witness against himself, in contravention of his constitutional rights.
Was the testimony, or any part of it, complained of by plaintiff in error, prejudicial to the extent that he was denied a fair and impartial trial? If not, no harm was done. We cannot read the minds of the jurors; we can only reason from common probabilities. When the jurors take the box in a criminal case, they are interrogated at length as to whether or not they have any bias or prejudice in the case. If their minds are free, open and unbiased, they are sworn to "well and truly try and true deliverance make between the State of Ohio and the prisoner at the bar." Amplifying upon this oath, it means that the jury will determine the case upon the testimony adduced from the witness stand and the law given them by the court. The law implies that the jury's verdict be based upon competent relevant testimony. It then becomes the duty of court and counsel to see that the jury is not permitted even to hear, let alone consider, irrelevant incompetent testimony. Some irrelevant incompetent testimony is harmless, but much is harmful in that it creates in the minds of the jurors a prejudice against the accused, thereby denying to him his right to a fair impartial trial.
Plaintiff in error should not have been inquired of, under this theory, as to the fees he received from the Taylor family, when they were earned, and how he earned them.
It was not the theory of the state that he was agent of the Taylor family in these alleged embezzlements.
The questions of law, heretofore referred to, that were propounded to defendant on cross-examination, were certainly not germane. True, plaintiff in error was a lawyer, but how could the legal effect of certain circumstances be of any help to the jury? It was not concerned with questions of law.
Exceptions were not saved to each and every question complained of, but suffice it to say that enough were saved to require this court to determine whether or not plaintiff in error had a fair and impartial trial.
The general rule established in the case of Legg v. Drake, supra, was supplemented in the case of Wroe v. State, 20 Ohio St. 460, as follows:
"The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rests in the sound discretion of the court trying the cause. Such questions may be allowed when there is reason to believe it will tend to the ends of justice; but they ought to be excluded when a disparaging course of examination seems unjust to the witness, and uncalled for by the circumstances of the case."
The answers in this case were not voluntary. They were objected to in almost every instance, but the witness was required to answer. We fail to see wherein the circumstances in the case before us called for this line of cross-examination, and just why it was persisted in.
The jury must have been impressed, to some extent at least, with the thought that if plaintiff in error was connected with so many concerns for which receivers were appointed he was probably the kind of man who would embezzle moneys. Just what effect the testimony as to the fees received from the Taylor family, how, when and where they were earned, and the questions of law, had on the jury, we are unable to say; but we think we are safe in saying that when this testimony was considered in connection with the testimony relative to the receiverships it did not redound to the benefit of plaintiff in error, but militated against him; that his rights were prejudiced, and he did not have the fair and impartial trial contemplated by our Constitution.
The judgments of the Court of Appeals and court of common pleas are reversed.
Judgments reversed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.