State v. Stewart

• Decision Date: 29 April 1964
• Docket Number: No. 38228,38228
• Citation: 176 Ohio St. 156,198 N.E.2d 439
• Parties: , 27 O.O.2d 42 The STATE of Ohio, Appellee, v. STEWART, Appellant.
• Court: Ohio Supreme Court

Page 156

176 Ohio St. 156

198 N.E.2d 439, 27 O.O.2d 42

The STATE of Ohio, Appellee, v. STEWART, Appellant.

No. 38228.

Supreme Court of Ohio.

April 29, 1964.

Syllabus by the Court

1. A person who is less than 18 years old is not legally incapable of making a voluntary confession.

2. In an appeal from a conviction in a criminal case, the Supreme Court is not required to weigh the evidence or retry issues of fact.

3. The law presumes every person to be sane until the contrary is shown by a preponderance of the evidence.

4. A person accused of a crime who knows and recognizes the difference between right and wrong in respect to the crime with which he is charged and has the ability to choose the right and abjure the wrong is legally sane. (Paragraph 15 of the syllabus of State v. Frohner, 150 Ohio St. 53, 80 N.E.2d 868, approved and followed.)

5. Where a person forms an intent to kill and actually deliberates upon it before carrying out his intention, the killing is premeditated within the meaning of Section 2901.01, Revised Code.

6. Where a person has actually formed a purpose to maliciously kill another and deliberated and premeditated upon it before he performed the act of killing, he is guilty of murder in the first degree, however short the time between the formation of the purpose and its execution. (Shoemaker v. State, 12 Ohio 43, approved and followed.)

Defendant, Richard John Stewart, herein referred to as appellant, was indicted by the Grand Jury of Summit County (first degree murder) for the killing of Judy Sooy, an 18-year- old college student. At the time of the killing, appellant was a minor approximately 17 1/2 years old.

Jury trial was duly waived, and a hearing was conducted by a three-judge court on issues made by pleas to the indictment of not guilty and not guilty by reason of insanity.

It appears from the evidence that on September 3, 1961, appellant, by misrepresentations, lured Judy Sooy to the home of his parents. While there he repeatedly struck her on the head with a hammer until she fell to the floor. She attempted to get up, but there were more hammer blows. Appellant finally strangled his victim by means of a rope tied about her neck.

After his victim's death, appellant escaped. A month later he was arrested in California for vagrancy. He first gave a false name and address but shortly thereafter admitted his identity and volunteered the information that he was wanted in Ohio for murder. The California police notified Ohio officials. The assistant prosecutor of Summit County and two detectives from Cuyahoga Falls, Ohio, flew to California and questioned appellant, who, after being advised of his constitutional rights, made a confession.

Appellant was returned to Ohio and, on instructions from the judge of the Juvenile Court of Summit County, was placed in the Summit County Juvenile Detention Home. The Juvenile Court later turned appellant over to the Court of Common Pleas.

At the conclusion of the trial, the appellant was found guilty of murder in the first degree under the first count of the indictment, without a recommendation of mercy, and not guilty under the second count.

On appeal, the Court of Appeals found no error of a nature prejudicial to the appellant and affirmed the judgment of the Common Pleas Court.

The cause is before this court upon the allowance of a motion for leave to appeal.

John S. Ballard, Pros. Atty., for appellee.

Harris, Sacks, Subrin & Goldman, Akron, for appellant.

JONES, Judge.

Appellant alleges, as follows, three errors by the Common Pleas Court in its judgment convicting him of murder in the first degree:

1. Admitting the confession of the appellant.

2. Failing to find the appellant not guilty by reason of insanity.

3. The verdict was not supported by sufficient evidence.

Appellant claims that the confession was inadmissible because the circumstances under which it was taken constituted a violation of the due-process clause of the Fourteenth Amendment to the federal Constitution. He argues that the authorities who obtained the confession failed to comply with the procedural requirements of Chapter 2151, Revised Code, and also that an element of compulsion was present. As authority for his contention appellant cites Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325.

Turning first to the procedural requirements, we find that there was substantial compliance with Chapter 2151. Appellant claims that he was not taken directly before the Juvenile Court upon arrest, in violation of Section 2151.25, Revised Code; and that he was not taken immediately to the court or place of detention designated by the court upon being taken into custody, as required by Section 2151.31, Revised Code.

The law does not require the impossible. As soon as they learned that appellant was there, Ohio authorities flew to California, arriving in the middle of the night. Early the next morning, the Ohio officers contacted the Juvenile Court judge of Los Angeles County, who instructed them to return appellant to Ohio. They took the next jet airplane to Cleveland and proceeded to the Cuyahoga Falls police station from whence the Juvenile Court judge of Summit County was telephoned. Pursuant to the judge's instructions, appellant was taken to the Summit County Juvenile Detention Home.

Appellant complains of this lapse of time in getting him to the juvenile detention home and also complains that he was far from his parents and friends when confronted by the law-enforcement officers of Summit County. However, it was not the officers' fault that he was in California; he went there to avoid arrest. Appellant cannot claim that he was deprived of his constitutional rights merely because he was able to flee so far before apprehension.

The claim of compulsion in procuring the confession is not substantiated by the record. It appears that appellant was treated fairly and with consideration by the officials. He was advised of his legal rights, and there is nothing to imdicate that he did not understand them. Appellant, himself, testified, as follows, that he confessed voluntarily:

'And so we talked for a while and they asked me if at that time I would care to give a formal statement. And I said 'Yes, I would,' because I wanted to get this over with. I wanted to be all through, I didn't want to have anything--I wanted to get it off my chest for good.

'And so we had a conversation before they took the statement, it was mostly between Mr. Pappas and myself. He told me that I didn't have to give this. He said 'It will be of your own free will.' But I did want to give it then. I did, like I said before, want to get it off my chest.'

The Gallegos case, on which appellant relies, is readily distinguishable from the case at bar. Gallegos was only 14 years old; appellant was over 17 1/2 and had completed the eleventh grade in school. The confession introduced in evidence in the Gallegos case was signed after the accused had been in custody for five days, during which time his mother had made an unsuccessful attempt to see him, and he had not seen an attorney or friendly adult. In this case, the confession was given as soon as the authorities confronted the appellant. It was completed within two hours after they were admitted to see him.

Mr. Justice Douglas, writing for the majority in the Gallegos case, stated:

'There is no guide to the decision of cases such as this, except the totality of circumstances * * *.'

There is nothing in the 'totality of circumstances' involved here, which made the confession anything but voluntary. To find that it was inadmissible, we would have to hold that any confession made by a person who is not yet 18 years old is involuntary unless one of his parents or his attorney is present. This is not the law. We, therefore, find that the trial court did not err in admitting the confession into evidence.

The remaining claims of error may be treated together. In an appeal from a conviction in a criminal case, this court is not required to weigh the evidence (Section 2953.02, Revised Code) or retry issues of fact. Our review is confined to a determination of whether there is sufficient evidence to support the verdict rendered. State v. Sheppard, 165 Ohio St. 293, 135 N.E.2d 340, paragraph five of the syllabus. If the record discloses grounds from which a reasonable trier of the facts could conclude that appellant, while legally sane, purposely and with deliberate and premeditated malice killed another, we must affirm the conviction.

On direct examination, appellant testified in detail, as follows, as to the killing:

'* * * I remember I struck her about six or seven...