Emmert v. State

• Decision Date: 08 November 1933
• Docket Number: 24041
• Citation: 187 N.E. 862,127 Ohio St. 235
• Parties: Emmert v. The State Of Ohio.
• Court: Ohio Supreme Court

187 N.E. 862

127 Ohio St. 235

Emmert v. The State Of Ohio.

No. 24041

Supreme Court of Ohio

November 8, 1933

Criminal law - Motion for new trial - Jurors' affidavits competent to prove unlawful communications outside jury room during deliberations.

Affidavits or testimony of jurors may be received, upon motion for new trial, to prove unlawful communications made to members of the jury by court officers or others, outside the jury room but during the period of the jury's deliberation.

The plaintiff in error, Charles G. Emmert, was tried in the court of common pleas of Lucas county upon four indictments charging that, as sheriff of Lucas county, he had presented to the county commissioners for allowance and payment falsified accounts for supplies furnished to the county jail for the maintenance of prisoners.

The trial resulted in verdicts of guilty, and on error the Court of Appeals affirmed the judgment rendered thereon.

The case comes into this court upon allowance of motion for leave to file petition in error.

Mr. Rob V. Phillips and Mr. Dan H. McCullough, for plaintiff in error.

Mr Frazier Reams, prosecuting attorney, and Mr. J. S. Rhinefort for defendant in error.

BEVIS J.

Three errors only are complained of:

(1) That the members of the jury were allowed unlawfully to separate while they had the case under consideration.

(2) That the court accepted the verdict of the jury after two of its members, upon poll, expressed doubt or uncertainty as to their adherence to it.

(3) That the court, upon motion for new trial, re- fused to hear the evidence of jurors tending to prove that the bailiffs in charge of the jury had had unlawful communication with some of its members, to the prejudice of the accused.

The Court of Appeals found that no error was committed in any of these respects.

We shall consider the grounds of error in succession.

(1) Section 13448-1, General Code (113 Ohio Laws, 194), now permits a separation of the jury under proper super vision at the court's discretion, and the Ohio cases cited by the plaintiff in error were all decided prior to the enactment of this provision. The practice of allowing such separation, especially in criminal cases, should be carefully guarded, and perhaps in the instant case there was some laxity on the part of the bailiffs. Upon one occasion eleven of the jurors were taken to breakfast, leaving one alone in the courtroom, open to access by outsiders. No definite prejudice to the accused appears to have resulted, however, and we do not disturb the judgment of the Court of Appeals in this respect.

(2) When the jury's verdicts were read in court, a poll was demanded by the accused. Ten of the jurors, upon interrogatories, replied that the verdicts were theirs. As to the other two, Mrs. Ann M. Leiter and Mrs. Clara T. Miller, the record shows the following:

THE COURT (to Juror Miller):

"Q. Mrs. Miller, is this verdict which has been returned in open court your verdict? A. Well, I didn't want to sign it that way.

"Q. What is that? A. I didn't want to sign it that way.

"Q. Is it your verdict? A. I signed it; yes, Sir.

"Q. It is? A. I signed it.

"Q. What is that? A. I signed the verdict.

"Q. And it is your verdict? A. Well, I suppose if I signed it it would be.

"Q. I want to know if that is your verdict now. You ought to know if it is or not; is that your verdict? A. Well, I don't know.

"Q. Is it not your verdict? A. In my heart I don't feel entirely satisfied with it.

"Q. You say that it is not your verdict? A. Well, I suppose you could call it that.

"Q. What is that? A. I suppose you could call it that.

"BY THE COURT: Q. How about you Mrs. Leiter? A. Mine was because the majority rules is all.

"Q. I don't want to know the majority rule, I want to know whether that is your verdict? A. It is my signature and my verdict; yes. (Thereupon counsel confer with court at bench.)

"BY THE COURT: Q. Mrs. Miller, we are a little confused as to your attitude. I should like to ask you this question in a larger form, but I am compelled to ask you in the language of the statute. Is or is not this verdict your verdict? A. Yes; it is."

While undoubtedly the court in this circumstance would have been warranted in sending the jury back to its room for further deliberation, we cannot say that there was error in receiving the verdicts. Neither of these two jurors denied that the verdicts were hers. Although both indicated somewhat unsettled states of mind, both, after prolonged discussion in the jury room, had signed the verdicts, and each in open court, after full opportunity to say otherwise, said that the verdicts were still hers. No coercion or undue pressure on the part of the trial judge appears. After discussing this feature of the case, the Court of Appeals said:

"We have no hesitancy, therefore, in deciding that the trial court rightfully accepted the verdicts upon the completion of the polling, as being the true ascertainment by all the members of the jury of the question submitted for their determination, namely, whether the defendant was or was not guilty."

In this judgment of the Court of Appeals we likewise concur.

(3) The jury, at the conclusion of the hearing, retired to deliberate under the charge of Robert Oatley, the regular bailiff, and Ernest Richardson, clerk of the court, acting as special bailiff.

Upon the motion for new trial, the testimony of one Hamel was offered by the accused, that one of these bailiffs, immediately after the jury was discharged, had said, "That `By God, he had told that jury in the morning and again at noon that they must arrive at a verdict.'

This testimony was rejected by the court, and exception taken.

In connection with the foregoing, the accused offered affidavits of Mrs. Clara T. Miller and Mrs. Ann M. Leiter, jurors in the case. The record shows that after some four hours' deliberation, the jury were called into court and taken by the bailiffs to the Elks' Club for supper. At this time they stood nine for acquittal, one for conviction, and two in doubt. The affidavits of Mrs. Miller and Mrs. Leiter purport to prove the happening of certain events thereafter. Part of Mrs. Miller's affidavit is as follows:

"On our way to the Elks' Club I walked with Mr. Richardson at the head of the jury at which time the following conversation took place:

"I remarked that I was glad to be out, * * * that we had quite a terrible session and he asked me how the vote stood and I said `Nine to three.' And then he remarked that it was fine. Then he asked me to tell him which way we were going, what that nine to three meant, and T told him it was for acquittal and that is all that was said. Then Ann Leiter walked up to us. We then had our dinner at the Elks' Club, * * * Then I don't know who started the conversation again. I don't remember whether I did or whether Ernie did. But he asked then, `Did you say that the jury is nine to three for acquittal?' I said, `Yes.' He said, `My God, you are all wet. Judge Stahl expects you to return a verdict of guilty and if you don't it will be just too bad,' and I said, `He does?' I said that there was not enough evidence there to show me that he was guilty and he said, `Good Lord, what evidence do you want? It is all there. You better look at your books.'

Mrs. Miller's statement further shows that she told Mrs. Leiter of the occurrence above set forth, and also a Mrs. Koons, another juror. Quoting Mrs. Miller's affidavit still further:

"At breakfast, at the same table sitting with me was Mrs. Leiter, Mr. Turner and Mr. Richardson, and the subject of not getting any place with our ballots was brought up and Mr. Richardson spoke and said, `Of course I don't know which way the vote is going,' which was untrue because he did know the night before, `but'-he said * * * `Why not switch your votes from whichever way they were going to the other way,' and he said, `One of you will hold out,' and then he said, `in that way you will get the different jurors to talk and you will find out their views and their reasons on the subject.' * * * Then he said, `If their reasons sounded logical and sound fair to you,' he said, `stick with them.' He said, `If you don't, what difference does it make anyway.' And he said, `You got to bring in a verdict.' Mrs. Leiter said, `If we don't bring in a verdict, then what?' `Well then,' he said, `we probably would have to see about getting your clothes and make different preparations for the night again.' * * *

"All of the jurors were seated at the one table and someone remarked, I don't know who, saying we were having an awful time reaching a verdict and Mr. Oatley spoke up and said, `For God's sake, you will have to reach a verdict tonight.' I did not pay much attention to what he did say, but Ernie popped up on that and he said, 'Yes, you got to reach a verdict, all of you.'"

The affidavit of Mrs. Leiter, offered by the accused, reads in part as follows:

"On the way back to the court house I walked with Mr. Richardson at the rear end of the jury and the subject of the verdict was brought up, and I told him that I simply-after all my study the night before-could not find any real evidence, or enough evidence, and I said everything that Linton Fallis said and everything that Miss Davis said and everything that Miss Stone said related to Helen Johnson. I said it was all laid to Miss Helen Johnson and she never was brought on the witness stand, and Ernie then told me that Helen Johnson was dead; she could not be brought on the witness stand. `Well,' I said, `we did not know that.' He said `Well, you can tell them when you go back.' I said, `How could I go back there and tell them a thing like that; where would they think I got it at this...