State v. Lowder

• Decision Date: 09 October 1946
• Parties: STATE v. LOWDER. SAME v. HALEY. SAME v. PARKS.
• Court: Ohio Court of Appeals

72 N.E.2d 785

79 Ohio App. 237

STATE v. LOWDER.

SAME v. HALEY.

SAME v. PARKS.

Court of Appeals of Ohio, Fifth District, Stark.

October 9, 1946

Syllabus by the Court.

Three minors, suspected of murder, were apprehended. Prior to their being taken before any court, and before any charges were filed against them, signed confessions were obtained from each of them. They were then taken before the Juvenile Court which conducted an investigation, and the nature of the crime being apparent, the cases were referred to the Common Pleas Court, where the accused were indicted, tried and convicted. In each instance the confession obtained was used against the one making it, in both the Juvenile Court and the Court of Common Pleas. Held:

1. The confessions were admissible in evidence, even though the accused were not taken immediately before the Juvenile Court as directed by Section 1639-27, General Code.

2. The fact that the confessions were used in the Juvenile Court, did not render them inadmissible in the Court of Common Pleas, under Section 1639-30, General Code, because there was but one case or proceeding.

Appeals to the Supreme Court were dismissed, 147 Ohio St. 340, 70 N.E.2d 905; 147 Ohio St. 531, 72 N.E.2d 81; 147 Ohio St. 530 72 N.E.2d 102.

W M. Howard, of Youngstown, and C. E. Hunter, of Canton, for appellants Willie Lowder and Alfred Parks.

Amerman Mills, Mills, Jones & Mansfield, of Canton, for appellant John Harvey Haley.

D. Deane McLaughlin, Pros. Atty., W. Bernard Rodgers and John Rossetti all of Canton, for appellee.

MONTGOMERY Judge.

The three appellants were, by separate indictments, charged with the killing of one William Koram, while attempting to perpetrate a robbery, under the provisions of Section 12400, General Code. Lowder and Haley were tried before juries. Parks, waiving that right, was tried before three judges. Each of the accused was convicted of murder in the first degree, with recommendation of mercy, and sentenced accordingly. From the several judgments, these three appeals were perfected.

Not the least of our tasks has been the reading of the three records, two of which were voluminous. They have been read, and read with care, because of the necessity of having in our minds the facts proven in each case, and the danger of confusion lest an essential matter appear in one case, and perhaps not in another.

Except for the nature of the cases and their importance, we might well content ourselves with, and adopt as our own, the opinion rendered by Judge Barthelmeh in the Parks case, and the opinion of Judge Sweitzer in overruling the motions for new trials in the three cases.

There are numerous assignments of error in each case. While in the several cases they vary in form and in language, they are in substance essentially the same, and may be considered and discussed together, and all have been considered. Some of them have no merit in them, and some but repeat in different form the basic matters of which complaint is made.

Especially in the Haley case, and to a lesser extent in the other cases, much is made of the complaint of misconduct on the part of counsel representing the prosecution. Some of the criticized statements of counsel were provoked or produced by preceding statements of counsel for defense. But in none of the proffered charges against counsel do we find anything prejudicial, or in fact anything deserving criticism.

If the corpus delicti was proven in each case, and if the several confessions were admitted in evidence properly, the verdicts in the two cases, and the finding in the third case, were not manifestly against the weight of the evidence.

And assuming for the moment that we should hold for the state on these two propositions, there was nothing erroneous in the charges given to the jury in the two cases. There is no requirement that the trial judge shall give special requests to the jury in a criminal case. In these cases, in view of the evidence, he properly declined to charge on other offenses. See Malone v. State, 130 Ohio St. 443, 200 N.E. 473.

We have, therefore, in each of these cases, essentially two questions to consider:

1. Was there in each of them, independent of the admitted confession, adequate proof of the crime, of the corpus delicti?

2. Were the confessions, obtained as they were, admissible in evidence?

The defendants Lowder and Haley in their several trials testified in their own behalf. The defendant Parks testified only as to the circumstances surrounding his confession. But police officers testified as to his verbal admissions. We endeavor to indicate in each case anything that may be lacking in the chain of evidence. To a considerable extent the proof of the corpus delicti is circumstantial. But, as has been aptly stated, 'circumstances do not lie.'

Here is the chain: These three minor boys together on the eve of the crime discussed the possibility of easy money, and what could be done with a gun. They went to the home of Haley who produced the gun. It was loaded and had a safety device.

These boys roamed about the streets of Canton until nearly midnight, when coming before the business place of Koram, they concluded on trying it as the place for their operations. During their peregrinations, the gun was transferred from Haley to one of the other appellants. And here is a strange divergence in statements. While there is a similarity in other respects in the confessions and in the oral evidence at the trials of the defendants Lowder and Parks, each places the gun in the possession of the other at the time of the shooting.

Lowder and Parks entered the Koram room, Haley remained on the outside as a 'look-out.' He did not know and could not know what happened in the room. He heard a shot and ran, later meeting the other two boys.

The two entered the room, announced to Koram, who was then alone, that it was a 'stick-up.' He, not yielding, started towards them. He was shot. The bullet traveled in an apparently straight line and entered into the apex of the heart. Blood spots were found four or five feet back from the doors from which the accused fled.

The bullet was later taken from the body of Koram. The cartridge shell was found in the storeroom near the door. After various false statements as to the whereabouts of the gun, it was found...