State v. Wigglesworth

Decision Date11 June 1969
Docket NumberNo. 68-382,68-382
Parties, 47 O.O.2d 388 The STATE of Ohio, Appellee, v. WIGGLESWORTH, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. The only purpose of a preliminary hearing is to determine whether sufficient facts exist to warrant the court in binding the accused over to the grand jury and to set bail, and once an indictment has been returned by the grand jury, a preliminary hearing before a magistrate is no longer necessary. (Paragraph one of the syllabus of State v. Minamyer, 12 Ohio St.2d 67, 232 N.E.2d 401; State v. Wilkinson, 17 Ohio St.2d 9, 244 N.E.2d 480; White v Maxwell, 174 Ohio St. 186, 187 N.E.2d 878; and Crider v. Maxwell, 174 Ohio St. 190, 187 N.E.2d 875, spproved and followed.)

2. Where a married man lives with a woman, other than his wife, in her apartment off and on for about six months and for two weeks before a search of that apartment by law enforcement officials and leaves some of his clothes in that apartment, a search of her apartment with her consent and in his absence does not violate any constitutional rights of such man.

3. An accused can not complain of argument by the prosecutor where he did not object thereto and where, if such argument was improper, an objection thereto would have enabled the court to avoid any prejudice to the accused therefrom, especially where the making of such objection could not have prejudiced the accused with the jury even if it had been overruled by the trial court.

4. The trial judge should finally determine the admissibility of any alleged confession or other statement objected to by an accused and such question should not thereafter be submitted to the jury. (State v. Perry, 14 Ohio St.2d 256, 237 N.E.2d 891, followed.)

5. A juror may be excused on a challenge for cause by the prosecutor because he is opposed to capital punishment only where his opinions preclude him from finding the accused guilty of an offense punishable with death. (State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605, approved and followed.)

6. Where, before a jury is empanelled, an accused expressly agrees to excuse any and all prospective jurors for cause merely because of their opposition to capital punishment, and at that time such accused has a statutory right to object to excusing any juror because of his opinions with regard to capital punishment unless such opinions preclude him from finding the accused guilty of an offense punishable with death, such accused may not thereafter complain about the excusing of one prospective juror merely because of such juror's opposition to capital punishment, especially where no question was raised at the time by such accused as to the excusing of such juror for that cause.

Defendant was indicated on June 8, 1967 for first degree murder by the grand jury of Summit County for the killing of his wife on June 2, 1967.

A jury found defendant guilty as charged and did not recommend mercy; and, on October 19, 1967 defendant was sentenced to death.

The judgment of conviction was affirmed by the Court of Appeals on April 29, 1968.

The cause is now before this court upon appeal from the judgment of the Court of Appeals.

James V. Barbuto, Pros. Atty., and Stephen M. Gabalac, Akron, for appellee.

Angelo A. Fanelly and Donald E. Cope, Akron, for appellant.

TAFT, Chief Justice.

Defendant complains because he was given no preliminary hearing pursuant to Section 2937.01 et seq., Revised Code.

After being charged with first degree murder, defendant was brought before the Akron Municipal Court on June 3, 1967 for arraignment. Because defendant was not represented by counsel, the court, pursuant to Section 2937.03, Revised Code, continued the case until June 9, 1967. In the meantime, on June 8, the grand jury of Summit County indicted defendant for first degree murder. Thereafter, on July 6, 1967 defendant filed a motion to remand the cause to the Muncicipal Court for a preliminary hearing. This motion was properly overruled.

In State v. Minamyer (1967), 12 Ohio St.2d 67, 232 N.E.2d 401, paragraph one of the syllabus reads:

'The only purpose of a preliminary hearing is to determine whether sufficient facts exist to warrant the court in binding the accused over to the grand jury and to set bail, and once an indictment has been returned by the grand jury a preliminary hearing before a magistrate is no longer necessary. (White v. Maxwell, 174 Ohio St. 186, 187 N.E.2d 878; Crider v. Maxwell, 174 Ohio St. 190, 187 N.E.2d 875, approved and followed.)'

See also State v. Wilkinson (1969), 17 Ohio St.2d 9, 244 N.E.2d 480.

Defendant further complains because of the overruling of his motion 'to suppress the use of any oral or written statements made by defendant as evidence on the grounds that any such statements were not voluntarily made and that such statements were made while defendant was in custody and was not informed of his rights * * * under the guidelines as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

In considering this motion, the trial judge conducted a hearing before the jury was chosen and determined that the required Miranda warnings had been given and that the statements were voluntarily made. In addition, the trial court submitted those questions to the jury with instructions to disregard the statement if they found either that the statements were not voluntarily made or that the required Miranda warnings had not been given.

Our examination of the record convinces us that the court was correct in determining that the required Miranda warnings had been given and that the statements were voluntarily made.

Defendant next complains about the overruling of a motion to suppress evidence seized as a result of a search of a certain apartment. The record shows without dispute that this apartment was rented to a Mrs. Hayes, that she paid the rent for the apartment and that she consented to the search.

Except by referring to defendant as a co-occupant of the apartment, defendant's brief does not suggest what right he had to question the search. An examination of the record indicates that the basis for the claim of co-occupancy by defendant was that he had been living in the apartment with Mrs. Hayes off and on for about six months, and continuously for about two weeks before the killing, and had left some of his clothes there. In our opinion, this would not give defendant a right to object to a search, with her consent and in his absence, of what was admittedly her apartment. Cf. Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1, 106 N.E.2d 632. Such search 'invaded no right of privacy of person or premises' of the defendant. Alderman v. United States (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Frazier v. Cupp (1969), 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; Goldstein v. United States (1942), 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; Wong Sun v. United States (1963), 371 U.S. 471, 492, 83 S.Ct. 407, 9 L.Ed.2d 441.

Defendant also complains because the trial court overruled his challenge for cause of one of the prospective jurors, and that this required him to use one of his peremptory challenges. An examination of the record indicates no basis whatever for this challenge for cause.

It is next contended that the court erred in admitting testimony as to the identification of the defendant from a line-up.

We do not believe the evidence discloses any such testimony.

A Reverend Martin was sitting in his car at about midnight on the night of the murder, near the place in the park where defendant's wife's dead body was found the next morning. Martin was then studying his notes for a high school commencement address to be given a few nights later. He saw a woman and a man go to a place in the park where the body was subsequently found, and he then heard two pistol shots from that direction, about a minute apart.

Next day, when he heard of discovery of the body, he went to the police station to report this and saw defendant there. At the trial, a detective testified on direct examination that Martin said that, from the sweater defendant was then wearing, defendant looked like the man he had observed go into the park.

The testimony complained of was brought out on defendant's cross-examination of the detective, which reads:

'Q. * * * Now, did you put this defendant in a line-up? A. Yes, he was on the stage, yes.

'Q. He was the only man on that stage, isn't that true? A. That's true.

'Q. You said 'Reverend Martin said it looked like the man from the sweater he was wearing.' Wasn't that your direct testimony? A. That was before he was put on the stage.'

The foregoing cannot be contrued as testimony that Reverend Martin identified the defendant at any line-up.

Actually, Martin did not identify defendant as being in the park that night, although he did identify defendant's sweater as being on the man who went into the park shortly before he heard the two shots.

Also, not only in his counsel's opening statement, but also in his own testimony and in his counsel's argument, defendant admitted shooting his wife in the park at that time, although he contended he did so in self-defense.

Defendant next complains about statements made by the prosecutor in his closing argument to the jury.

In order to understand this complaint, it is necessary to consider the differences between defendant's confession and his testimony at the trial, and the contentions made by defendant in order to persuade the jury not to find him guilty of first degree murder.

At the trial, defendant testified that, after reaching the place where his wife was killed she and defendant got into a heated argument, that she attacked him with a knife, and that he shot her twice in order to protect himself, the first shot being at close range and the second while she was falling. The coroner had testified that there were powder burns on defenda...

To continue reading

Request your trial
61 cases
  • People v. Lanphear
    • United States
    • California Supreme Court
    • April 10, 1980
    ...L.Ed.2d 221; Boulden v. Holman (1969) 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433.) The court then granted certiorari in State v. Wigglesworth (1969) 18 Ohio St.2d 171 (47 Ohio Ops.2d 388, 248 N.E.2d 607), in which the Ohio Supreme Court had held the defendant waived Witherspoon error (see ......
  • Crawford v. State
    • United States
    • Texas Court of Criminal Appeals
    • July 16, 1980
    ...478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969) the defense actually assented to exclusions, as did the defense in State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969) (holding defendant waived Witherspoon error), reversed per curiam in Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284......
  • State v. Laskey
    • United States
    • Ohio Supreme Court
    • March 18, 1970
    ...of the objection and precludes appellant from raising the question now. State v. Pruett, supra, footnote two; State v. Wigglesworth (1969), 18 Ohio St.2d 171, 248 N.E.2d 607. See State v. Duling, supra. See, also, Singer v. United States (1965), 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630; Sc......
  • Bean v. State
    • United States
    • Nevada Supreme Court
    • February 3, 1970
    ...Forcella, 52 N.J. 263, 245 A.2d 181 (N.J.1968); State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605 (1969); cf. State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969); People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968); People v. Moore, 42 Ill.2d 73, 246 N.E.2d 299 (1969). 7. So ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT