Groban, In re

• Decision Date: 08 October 1954
• Parties: , 59 O.O. 372 In re GROBAN.
• Court: Ohio Court of Appeals

Page 512

99 Ohio App. 512

135 N.E.2d 477, 59 O.O. 372

In re GROBAN.

Court of Appeals of Ohio, Franklin County.

Oct. 8, 1954.

Syllabus by the Court.

1. The same constitutional principles should be applied to investigations by a fire marshal as are applied to investigations by a grand jury.

2. Under Section 3737.13, Revised Code, the State Fire Marshal has a discretionary power to determine whether an investigation conducted by him shall be in private; and, under the provision of such statute that 'the [fire] marshal may exclude * * * all persons other than those required to be present,' counsel for a witness may be excluded from such investigation if so ordered by the fire marshal.

3. A witness is presumed to know his constitutional privileges; and it is not necessary that he be instructed on such privileges before answering incriminating questions.

4. The privileges guaranteed by Section 10, Article I of the Ohio Constitution, in criminal cases are available to witnesses at a State Fire Marshal's investigation.

5. The time for the assertion of the privilege against self-incrimination contained in Section 10, Article I of the Ohio Constitution, is after the witness has been sworn, and not before; and where a witness refuses to be sworn for the reason that he was not permitted to be represented by counsel, and no questions are asked upon which such privilege could have been exercised, the fire marshal may commit such witness to the sheriff for incarceration until he is willing to testify.

Graham, Graham, Hollingsworth, Gottlieb & Johnston, Zanesville, for appellants.

Frank H. Kearns, Pros. Atty., and Earl W. Allison, Columbus, for appellee.

MILLER, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court, denying the appellants herein relief, on a writ of habeas corpus, from a prison sentence.

The record discloses that on January 22, 1954, a fire occurred on the premises of the Dresden Mills, Inc., Dresden, Ohio, which is owned, controlled and operated by the appellants. Shortly thereafter, the State Fire Marshal started an investigation as to the cause of the fire and, pursuant to such investigation, subpoenaed the appellants, together with all the records pertaining to the operation of their business. They appeared in accordance with the subpoena, accompanied by their counsel. The State Fire Marshal refused to permit the appellants to have counsel present at the investigation and ordered that the appellants take an oath and testify, after excluding the presence of their counsel. The appellants refused to be sworn and testify, for the reason that they were not permitted to be represented by their attorney. Thereupon, the State Fire Marshal committed the appellants to the Sheriff of Franklin County, Ohio, to be incarcerated until they were willing to testify.

The error assigned is that the court erred in its interpretation of Section 3737.13, Revised Code, and that its judgment is contrary to law. That section of the Code provides:

'Investigation by or under the direction of the fire marshal may be private. The marshal may exclude from the place where such investigation is held all persons other than those required to be present, and witnesses may be kept separate from each other and not allowed to communicate with each other until they have been examined.'

The trial court held that under this section of the Code, the fire marshal has a discretionary power to determine whether his investigation hsall be in private and, if so, that counsel for a witness may not be permitted to be present at the hearing. We think the court properly construed the code section under consideration. The law seems to be well established that where a statute is plain and unambiguous, the terms thereof shall be construed to have their ordinary meaning. It not only provides that the investigation may be private, but also it goes further and defines the meaning of the word 'private,' to wit, 'The marshal may exclude * * * all persons other than those required to be present * * *.' Clearly, counsel for a witness is not a person whose presence is required before a fire marshal may proceed with the investigation; hence, his presence may be denied, if so ordered by the marshal.

The next question presented is whether such statutory construction denies the appellants a right or privilege guaranteed to them by the Fifth, Sixth and Four-teenth Amendments to the Constitution of the United States, and Section 10, Article I of the Constitution of Ohio. The appellants' brief states that 'it is a fundamental principle that the first ten Amendments to the federal Constitution are solely restrictions on the federal government and provide no limitations as to state governments.' It states, however, that their interpretation should be valuable to the issues here...