Opinion
No. 31479
Decided May 4, 1949.
Criminal law — Defendants jointly indicted for felony — Application by codefendant for separate trial — Signed confession by one defendant concerning guilt of his codefendant — Court to grant separate trials or order prejudicial matter withheld, when.
Where it is disclosed, preceding the trial of codefendants jointly charged with the commission of a felony, that a signed confession by one of the defendants, made in the absence of his codefendants, will be put in evidence, which confession contains statements showing the guilt of a codefendant, and based thereon an application for separate trial is duly made by that codefendant, it is the duty of the trial court either to grant the application or to order the prejudicial matter withheld or deleted before admitting the confession in evidence.
APPEAL from the Court of Appeals for Cuyahoga county.
This case originated in the Court of Common Pleas of Cuyahoga county. Richard Rossman, Albert Williamson and the appellant, Abe Rosen, were by a joint indictment charged with armed robbery.
About seven days prior to the trial, counsel for Rosen filed a motion for a separate trial based on the claim that certain "conversations" between the arresting officers and the codefendants of Rosen, in his absence, would be offered by the state, which would not be admissible against Rosen. This motion was overruled and the case assigned for trial.
Before the commencement of the trial, counsel for Rosen renewed his application for a separate trial and, having ascertained from the prosecuting attorney that he had procured and expected to introduce in evidence a purported signed confession of a codefendant of Rosen, made in the absence of the latter, counsel for Rosen urged favorable action of the court upon the ground that such confession, if introduced in evidence, would be prejudicial to Rosen. The application was overruled, the trial proceeded and resulted in the conviction of all three defendants.
A motion for a new trial having been overruled, appeals to the Court of Appeals were perfected by Rosen and Rossman.
That court affirmed the judgment of the Court of Common Pleas, one judge dissenting.
The cause is in this court following the allowance of a motion by Rosen for leave to appeal.
Mr. Frank T. Cullitan, prosecuting attorney, and Miss Gertrude M. Bauer, for appellee.
Mr. Jerome B. Goldman and Mr. Myron S. Stanford, for appellant.
Although the original application for a separate trial was based upon "conversations" said to have occurred between codefendants of Rosen and police officers, the renewal of the application was based upon the announcement of the prosecuting attorney that he expected to offer in evidence the confession of a codefendant.
It does not appear that the trial court examined the confession before ruling on the application.
In overruling the application it was stated by the court:
"I don't consider it to be the law of this state, that where there is a joint indictment, which is a policy of the state expressed by the Legislature, that the effect of a statement or admission by one of the defendants is to necessitate a separate trial for each of the defendants."
Section 13442-11, General Code, is as follows:
"When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, order that one or more of said defendants be tried separately."
The question presented has not heretofore been before this court in any preceding case. The case of State v. Fox, 133 Ohio St. 154, 12 N.E.2d 413, involved the trial of three codefendants charged with the crime of burglary and larceny, all three defendants being represented by the same counsel.
The question presented and decided in that case as stated in the opinion was whether, where a confession of the crime charged is made "by one of the defendants implicating one or more of his codefendants as a part thereof, should such confession be excluded, or should it be admitted under instructions to the jury limiting its application and effect solely to the maker?"
The question we have in the instant case was not decided but evidently anticipated by the writer of the opinion in the Fox case, as disclosed by the following statement:
"Under Section 13444-1, General Code, the rules of evidence in civil cases, in so far as applicable, shall govern all criminal causes. Counsel for the defendants in the instant case could have inspected the written confession of their client Barker in the hands of the prosecuting attorney before trial by invoking the provisions of Section 11551 et seq., General Code, if necessary, and could have predicated an application for a separate trial of their client Fox on the basis of the contents of such confession. This was not done, so we have no issue relating to an abuse of discretion on the part of the trial court in refusing to order separate trials."
We now have that question.
In the instant case the application for a separate trial was based upon the specific ground of the proposed introduction of a codefendant's confession containing statements claimed to be prejudicial to Rosen. It was the clear duty of the trial court, when his attention was challenged to the claimed prejudicial character of the confession, to hear and determine that question.
True, when such challenge is not made prior to the trial and a confession is admitted, it is generally held that tile prejudicial effect of such confession against a codefendant may be obviated or modified by appropriate instructions to the jury. See 70 A. L. R., 1186, 104 A. L. R., 1523, and 131 A.L.R., 924, and cases cited. The fact must be recognized, however, that in many cases the admission of such ex parte statements creates impressions so adverse that they may not be eradicated from the minds of the members of the jury. The prejudicial matter should be stricken out or deleted before the confession is admitted in evidence. The statement in the alleged confession indicated Rosen had planned, or at least participated in planning, the crime and received a portion of the proceeds thereof.
The record in the instant case discloses that the trial court, before passing upon the defendant's application, did not perform a very essential duty which was to examine the confession and then determine whether the statements contained therein were or were not such as warranted the allowance of the application for a separate trial or, at least in the alternative, direct a deletion of the prejudicial matter.
The defendants were represented by different counsel and their defenses were antagonistic. There was thrust upon the defendant Rosen the burden of refuting the ex parte statement against him by a codefendant.
The prejudice to the case of the defendant Rosen was somewhat accentuated by the refusal of the court to permit cross-examination on rebuttal, by counsel for Rosen, of the police officers relative to the procurement of the confession and particularly with reference to its voluntary or involuntary character.
In our opinion the action of the trial court constituted an abuse of discretion resulting prejudicially to the defendant Rosen.
The judgment of the Court of Appeals is, accordingly, reversed and the cause is remanded to the Court of Common Pleas for a new trial.
Judgment reversed.
HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.