Summary
In State v. Grisafulli (1939), 135 Ohio St. 87 [13 O.O. 440], the Supreme Court found prejudicial error where the trial court gave instructions during the absence of the accused.
Summary of this case from State v. BlackwellOpinion
No 27187
Decided February 23, 1939.
Appeal — Twenty-day limitation — Section 12223-7, General Code — Inapplicable to criminal cases in Supreme Court — Charge to jury in absence of accused, prejudicial error — Section 13442-10, General Code — Section 10, Article I, Constitution.
1. Section 12223-7, General Code, providing that an appeal to the Supreme Court must be perfected within twenty days, is without application to felony cases.
2. By virtue of Section 10, Article I of the Constitution, and Section 13442-10, General Code, it is the right and privilege of a defendant to be present when a jury, during its deliberations on a verdict in a felony case, returns to the courtroom for further instructions from the trial judge as to the law, where accused is affected by such instructions. The giving of such instructions during the absence of the accused, without his knowledge and while he is involuntarily confined in jail, constitutes prejudicial error. ( Jones v. State, 26 Ohio St. 208, approved and followed.)
APPEAL from the Court of Appeals of Cuyahoga county.
The appellant herein, Joe Grisafulli, was tried jointly with two others in the Court of Common Pleas of Cuyahoga county, near the beginning of the year 1938, for the capital offense of murder in the first degree. The crime charged against the three defendants involved the killing of a special policeman on April 14, 1937, while they were engaged in the perpetration of a robbery.
After the general charge of the court and during its deliberations on a verdict, the jury indicated a desire for further instructions.
When the jury returned to the courtroom, the foreman asked whether the sentence that might be imposed upon one of the defendants would take precedence over the sentence previously imposed upon him.
From the bill of exceptions in narrative form allowed and signed by the trial judge, it appears that in testimony presented to the jury it was developed that all three defendants had been previously convicted of crime. Grisafulli had been sentenced April 25, 1934, and sentence suspended for two years. The other two defendants had been paroled from the Ohio State Reformatory on March 26, 1937, and were charged with robbery in May of 1937. Both were sent to the state penitentiary in the summer of 1937, and at the time of the instant trial each had a part of two terms to serve. Grisafulli had no time to serve.
Before undertaking to instruct the jury further, the trial judge conferred with representatives of the prosecuting attorney and with counsel for the three defendants. The latter waived the right of their clients to be present and agreed that the judge might instruct the jury in the absence of the defendants, who were then involuntarily confined in the county jail and were not consulted in the matter.
Thereupon, the judge informed the jury in substance that it might find the defendants guilty of murder in the first degree, without a recommendation of mercy, which carried a penalty of death in the electric chair; that it might find them guilty of murder in the first degree, with a recommendation of mercy, which meant life imprisonment, or it might acquit.
The jury then resumed its deliberations and shortly returned a verdict of murder in the first degree, with a recommendation of mercy, against all three defendants. They were later sentenced, after their respective motions for a new trial had been overruled.
Grisafulli alone appealed to the Court of Appeals, urging before such tribunal that his constitutional and statutory rights had been violated because of his enforced absence from the courtroom during the additional instructions, but the appellate court affirmed the judgment below, without opinion.
A motion for leave to appeal and an appeal as of right were then filed in the Supreme Court. On October 13, 1938, the motion for leave to appeal was allowed, and a motion by the state to dismiss the appeal as of right was overruled.
Opposing the motion for leave to appeal and supporting its motion to dismiss the appeal as of right, the state argued that since neither the notice of the appeal filed as of right nor the notice of the motion for leave to appeal had been filed in the Court of Appeals within twenty days from the date on which that court had entered its judgment affirming the judgment of the Court of Common Pleas, the Supreme Court was without jurisdiction of the cause under the provisions of Section 12223-7, General Code.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Neil W. McGill, for appellee.
Mr. D.J. Lombardo, for appellant.
In allowing the appellant's motion for leave to appeal and in overruling the motion of the state to dismiss the appeal as of right, this court reached the conclusion that Section 12223-7, General Code, does not apply to felony cases, and is still of the same opinion. Section 13459-7, General Code, a part of the Code of Criminal Procedure, is controlling.
The appellant, having raised and argued in the Court of Appeals the constitutional question embracing his fundamental right to be present in person when additional instructions were given by the trial judge to the jury, is entitled to present that question to this court on appeal. State v. Hensley, 75 Ohio St. 255, 266, 79 N.E. 462, 464, 116 Am. St. Rep., 734, 9 L.R.A. (N.S.), 277, 9 Ann. Cas., 108; Hoffman v. Staley, 92 Ohio St. 505, 112 N.E. 1084; Board of Commrs. of Mercer County v. Deitsch, 94 Ohio St. 1, 6, 113 N.E. 745, 746; Cuthbertson v. State, 106 Ohio St. 658, 140 N.E. 941; 2 Ohio Jurisprudence, 528, Section 473; 12 Ohio Jurisprudence, 755, Section 742; 5 Corpus Juris Secundum, 1242, Section 1808.
Section 10, Article I of the Ohio Constitution, a part of the Bill of Rights, provides substantially that in any trial for a felony, an accused shall be allowed to appear and defend in person and with counsel. And Section 13442-40, General Code, states in effect that no person indicted for a felony shall be tried if he is not personally present, unless he escape or forfeit his recognizance after the jury is sworn.
In the opinion in the case of Thomas, Warden, v. Mills, 117 Ohio St. 114, 119, 157 N.E. 488, 489, 54 A. L. R., 1220, 1222, it was said:
"In its strict definition, the word 'trial' in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready, down to and including the rendition of the verdict * * *."
Based upon Section 11, Article VIII of the Constitution of 1802, providing "that in all criminal prosecutions, the accused hath a right to be beard by himself and his counsel, * * *" Chief Justice Hitchcock, in the case of Rose v. State, 20 Ohio, 31, 33, used this significant language:
"We conceive it to be the right of an accused person to be present during the trial of his case, and at the return of the verdict, and we think that when deprived of these privileges by being imprisoned in a jail, or in any other improper manner, the verdict returned against him should not be followed by judgment or sentence of the court, but a new trial should be ordered if requested."
A question very similar to the one presented by the instant case was before this court in Jones v. State, 26 Ohio St. 208. The per curiam opinion is short and reads:
"We are unanimously of opinion, that on the trial of a felony it is error to proceed, at any stage of the trial, during the enforced absence of the accused, save only in the matter of the secret deliberations of the jury, and perhaps in the hearing of motions after verdict and before judgment.
"It was the right of the plaintiff in error to be present at each and every instruction given to the jury as to the law of the case. This right was denied to him by reason of his imprisonment under the order of the court; and without inquiry as to the correctness of the instruction so given in his absence, it will be presumed that he was prejudiced thereby.
"Nor was the irregularity cured by the presence of his counsel at the time the additional instruction was given, and his failure to make objections. The right of the accused to be present on the trial of such case cannot be waived by counsel.
"Judgment reversed and new trial granted."
Compare, 12 Ohio Jurisprudence, 146, Section 110; Kirk v. State, 14 Ohio, 511; Hulse v. State, 35 Ohio St. 421, 429; State v. Hensley, supra; State, ex rel. Warner, v. Baer et al., Judges, 103 Ohio St. 585, 134 N.E. 786.
The holding in Jones v. State, supra, corresponds with the weight of authority. See: Shields v. United States, 273 U.S. 583, 71 L.Ed., 787, 47 S. Ct., 478; Kinnemer v. State, 66 Ark. 206, 49 S.W. 815; Stroope v. State, 72 Ark. 379, 80 S.W. 749; People v. McGrane, 336 Ill. 404, 168 N.E. 321; Roberts v. State, 111 Ind. 340, 12 N.E. 500; State v. Wilcoxen, 200 Iowa 1250, 206 N.W. 260; State v. Myrick, 38 Kan. 238, 16 P. 330; Riddle v. Commonwealth, 216 Ky. 220, 287 S.W. 704; Duffy v. State, 151 Md. 456, 135 A. 189; State v. Hunt, 26 N.M. 160, 189 P. 1111; State v. James, 116 S.C. 243, 107 S.E. 907; State v. Aikers, 87 Utah 507, 51 P.2d 1052; State v. Shutzler, 82 Wn. 365, 144 P. 284; State v. Howerton, 100 W. Va. 501, 130 S.E. 655; 96 A. L. R., annotation beginning on page 899; 16 Corpus Juris, 815, Section 2067.
Compare, Scruggs v. State, 131 Ark. 320, 198 S.W. 694; State v. Nardella, 108 N.J. L., 148, 154 A. 834.
It is contended by counsel for the state that since the question asked by the foreman of the jury had no reference to Grisafulli, because he had no sentence to serve and the jury knew it, he was not affected by the additional instructions and is not in a position to complain. Dekelt v. People, 44 Colo. 525, 99 P. 330; Ray v. State, 207 Ind. 370, 192 N.E. 751. However, the trial judge did not answer the question of the foreman directly, but proceeded to give an instruction which related with equal force to all three defendants.
Counsel for the state place reliance upon Section 13449-5, General Code, which states that no new trial shall be granted or any conviction reversed unless it shall affirmatively appear from the record that the accused was prejudiced or was prevented from having a fair trial. There are many instances where this statute may be invoked, but not in a case which discloses the clear disregard of a constitutional prerogative.
This country is still devoted to the ideals of democracy under which the legal rights of every individual must be recognized and protected. Among these rights is the inherent privilege of one accused of the commission of a felony to be present in person at every stage of his actual trial. If he is detained in prison against his will, such privilege is denied him. See, State v. Shutzler, supra ( 82 Wn. 365, 367, 144 P. 284, 285).
We are not here concerned with a situation in which one not imprisoned or under physical restraint voluntarily absents himself from his trial.
In view of what has been said, it follows that the judgments of the Court of Common Pleas and of the Court of Appeals are reversed, and the case remanded to the former court for further proceedings.
Judgment reversed and cause remanded.
WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.