371 U.S. 62 (1962), 200, Wetzel v. Ohio

Docket Nº:No. 200
Citation:371 U.S. 62, 83 S.Ct. 111, 9 L.Ed.2d 26
Party Name:Wetzel v. Ohio
Case Date:November 05, 1962
Court:United States Supreme Court

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371 U.S. 62 (1962)

83 S.Ct. 111, 9 L.Ed.2d 26




No. 200

United States Supreme Court

Nov. 5, 1962



In this case, in which appellant had been convicted in an Ohio court of a state crime, had been sentenced to imprisonment and to pay the costs of prosecution, and had died while his appeal was pending, a motion to substitute the administratrix of his estate is granted, and the appeal is dismissed for want of a substantial federal question.

Reported below: 173 Ohio St. 16, 179 N.E.2d 773.

Per curiam opinion.


This is an appeal from a judgment of the Supreme Court of Ohio affirming a judgment of conviction of a criminal offense entered in the Court of Common Pleas, Wyandot County, Ohio.

The motion to substitute Margie Wetzel, Administratrix of the Estate of Edward J. Wetzel, who died April 26, 1962, as appellant in place of Edward J. Wetzel is granted. The motion of appellee to dismiss the appeal for want of a substantial federal question is granted.

DOUGLAS, J., concurring

MR. JUSTICE DOUGLAS, concurring.

Appellant was convicted of possessing obscene matter with intent to sell it under Ohio Statutes § 2905.34. On May 25, 1960, he was "sentenced to an indeterminate period of not less than one year nor more than seven years and to pay costs of this prosecution." The sentence

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was suspended pending appeal in the Ohio courts. On January 17, 1962, the Supreme Court of Ohio reversed the Court of Appeals, which had reversed appellant's conviction, and on February 2, 1962, ordered the trial court's judgment executed. On the same day, a warrant was issued by the trial court authorizing the sheriff to sell enough of appellant's property to satisfy cost of $469.20. This was in accordance with Revised Code § 2949.15. On February 27, 1962, the Supreme Court of Ohio suspended sentence "until further order" of that court.

Appellant died pending appeal to this Court. His wife, as administratrix, has moved to be substituted as a party.

When a convicted and fined federal criminal defendant has died pending review of his case here, it has been the practice of this Court to dismiss his case and leave the disposition of his fine to the lower federal courts. See American Tobacco Co. v. United States, 328 U.S. 781, 815; United States v. Johnson, 319 U.S. 503, 520. But this practice is premised on the ground "that in the federal domain prosecutions abate . . . on the death of [a] . . . defendant." Melrose Distillers Inc. v. United States, 359 U.S. 271, 272. See Daniel v. United States, 268 F.2d 849. But such is not the case in Ohio. There, the appeal will be dismissed as moot (Makley v. State, 128 Ohio St. 571, 192 N.E. 738), but

the dismissal of an appeal, because of the death of the defendant during the pendency thereof, leaves the judgment as it was before the appeal proceeding was instituted.

State v. Sholiton, 128 N.E.2d 666, 667.

In the Sholiton case, the court expressly refused to pass on whether decedent's estate would be liable for costs, because the issue was not presented. It is apparently the rule in Ohio, however, that costs can be collected from a deceased convicted criminal's estate. State for Use of Clark County v.

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Keifer, 16 ONPNS 41. See [83 S.Ct. 113] Ohio Jur.2d, Costs, § 89. Under the present sentence, costs seem to be a penalty which is part of the sentence. See Hayes v. Pontius, 2 Ohio Op. 453.

Thus, under existing Ohio law, it appears that Wetzel's estate will have to pay a $469.20 penalty to the State of Ohio unless this Court reverses his conviction. His administratrix, and probable heir, is rightly concerned about this, and is the proper party to substitute.

It is often stated that "[w]here no controversy remains, except as to costs, this court will not pass upon the merits." Heitmuller v. Stokes, 256 U.S. 359; see Paper-Bag Machine Cases, 105 U.S. 766; Elastic Fabrics Co. v. Smith, 100 U.S. 110. The genesis of these cases was Canter v. American Ins. Co., 3 Pet. 307,...

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