Jones v. State
| Decision Date | 22 May 1894 |
| Parties | JONES v. STATE. |
| Court | Ohio Supreme Court |
Error to circuit court, Clermont county.
One Jones, at the October term, 1891, of the court of common pleas of Clermont county, was indicted for murder in the first degree, committed on his son, a youth of about 16 years of age. He was tried twice in Clermont county for the offense, and upon each trial was convicted of murder in the first degree; and each conviction was set aside by the circuit court for errors committed, to his prejudice, by the trial court. The venue was then changed to Brown county where the plaintiff was again tried, and in February, 1894 again convicted of murder in the first degree, and sentenced to be hanged. This conviction and judgment were sustained by the circuit court, whereupon the plaintiff in error instituted proceedings in this court to obtain their reversal. Reversed.
Where defendant objected to the order allowing the jury to view the place of the homicide, he did not waive such objection by accompanying the jury with his counsel.
Syllabus by the Court
1. When the venue in a criminal cause has been changed, the court of common pleas sitting in the county to which the cause has been removed for trial is authorized by sections 7264, 7283 Rev. St., to send the jury, in a body, to the county in which the crime was committed and the indictment found, to view the locus criminis.
2. Where, upon such view, counsel for the accused, and the prosecuting attorney, in the presence of the jury, caused measurements to be made, objects to be placed as near as possible in the relative positions they respectively occupied when the alleged crime was committed, and made experiments illustrative of the manner in which it may have been done, the accused, being present, in the company of, and at liberty to communicate freely with, his counsel, indicates no objection to or dissatisfaction with such proceedings, should be deemed to have authorized the same; and a motion made in his behalf, on the return of the jury into court, for its discharge on account of such proceedings, was properly overruled.
3. Where a father, placed upon trial for killing his son, a youth of about 16 years, contended that the boy had left home to associate with immoral women, with whom he was being criminally intimate, and that the homicide was accidentally committed while the father was attempting to reclaim his son, evidence of the character of such women is competent, as reflecting upon the motives of the father in seeking the son.
4. An intention to kill is an essential element of the crime of murder in this state, and must be established beyond a reasonable doubt, to authorize a verdict of murder in the first or second degree. This rule is not changed by reason of the accused contending, and introducing evidence tending to prove, that the homicide was accidental; the legal effect of such evidence being simply to controvert an inference of an intent to kill, which may arise from the evidence introduced by the state.
J. H. Cobell, W. W. Dennison, and W. W. Young, for plaintiff in error.
O. P. Griffith, Pros. Atty., John M. Markley, Asst. Pros. Atty., and G. A. Frazier, for defendant in error.
1. The plaintiff in error, after two trials in the Clermont county court of common pleas, both of which resulted adversely to him sought and obtained a change of venue. The cause was removed to the adjoining county of Brown, where he was, for the third time, placed upon trial upon an indictment charging him with murder in the first degree. After the jury had been impaneled in Brown county for the trial, counsel for the state moved for, and, over the objection of plaintiff in error, obtained, an order that the jury be sent to Clermont county, in which the homicide was committed, to view the place where it occurred. Thereupon, the jury, in a body, under the charge of an officer, was conducted to that place, and, by a person appointed by the court, their attention directed to such objects as was thought might aid them in understanding the evidence to be submitted to their consideration. The court, in the order directing the view, also directed that the prisoner, if he desired, should be taken along in charge of an officer. He chose to accompany the jury, as also did his counsel and the prosecuting attorney. The plaintiff, however, having resisted the motion for a view, and excepted to the order allowing it, should not be regarded as waiving his objection to it because, with his counsel, he accompanied the jury when he found that the view was made notwithstanding his resistance. What power is vested in a court of common pleas to order a view of the locus criminis, in the absence of a statute, we need not consider, for in this state the subject is regulated by the legislature. Section 7283, Rev. St., provides that ‘ whenever in the opinion of the court it is proper for the jury to have a view of the place at which a material fact occurred, it may order the jury to be conducted. * * *’ The language employed does not limit the power to order a view to places within the county. The words are broad enough to authorize a jury to be sent anywhere, and no reason is apparent why a jury might not be sent to any place where a material fact occurred, if within the jurisdiction of this state. The statute, we think, authorized the court of common pleas to send the jury to Clermont county to view the place where the homicide occurred.
2. O P. Griffith, Esq., prosecuting attorney, his assistant John M. Markley, Esq., the plaintiff in error, and two of his counsel, W. W. Young, Esq., and W. W. Dennison, Esq., accompanied the jury when it made the view; and the plaintiff in error contends the irregularities occurred while the view was being had, for which the jury should have been discharged, and upon the return of the jury, and before any further steps were taken in the trial, he moved the court for an order discharging it, which was overruled. The several matters constituting the alleged irregularities were set forth in affidavits filed on behalf of the plaintiff in error, and in counter affidavits presented by the state, which, upon the overruling of the motion to discharge the jury, were embodied in a bill of exceptions. If the irregularities disclosed by the affidavits filed on behalf of the plaintiff were such as to require the discharge of the jury, and the affidavits presented by the state showed that the alleged irrgularities were not sufficient to warrant such discharge, this court must assume, in support of the ruling of the court of common pleas, that it found the facts in accordance with the affidavits of the latter, and should not disturb its ruling in this regard unless this finding was manifestly against the weight of the evidence. However, if the facts, as they were disclosed by the affidavits filed by the state, show fatal irregularities, for which the jury should have been discharged, it was error to overrule the motion. There was no great conflict in these affidavits, and in passing upon this motion the court may well have taken the statements made by E. G. Booso, who was appointed to accompany the jury and point out the premises, as disclosing a correct history of what transpired in its presence on that occasion. He states: That after the jury, and those who accompanied it, arrived on the premises, he, at the request of counsel for the state and for the plaintiff in error, caused the owner of the team and the wagon in which the boy was riding when shot to drive the team and wagon to the place of the tragedy. That counsel then agreed that the boy, when shot, fell from the wagon to the earth in the pike, at a point 50 feet from a certain bridge, and, to ascertain the point where the body fell, the affiant, at the joint request of counsel on both sides, measured the distance with a tape line, and made a mark to indicate where the body lay, and by like consent and request caused the wagon to be driven near to this point, as indicated by one of the counsel for plaintiff in error. Then the owner of the wagon, a boy, and a third person were placed in the wagon; the jury conducted to the east end of said bridge; O. P. Griffith, prosecuting attorney, was placed at a point where the plaintiff in error had stood at the time the shot was fired, a gun placed in his hands, and pointed in the direction of the man and boy, and the attention of the jury directed to the position of such persons. That then the jury was moved up to the wagon, and the affiant, at the request of counsel for plaintiff in error, took the gun, and placed the hammer thereof at different points upon the front wheel and other parts of the wagon. This entire transaction occurred in the presence of the plaintiff in error. The several acts were done at the request of his counsel, made alone or jointly with counsel for the state. The theory of the defense was that the fatal shot was an accident, and the experiments made, and positions in which the several actors were placed, were intended, we must presume, to render intelligible to the jury the statements of the witnesses that bore upon that theory. The plaintiff in error at the time made no objection to these acts, performed, as we have already seen, in his presence and at the request of his counsel. He now claims that the owner of the team and wagon, Malott, and the prosecuting attorney, did not stand indifferent between himself and the state, for the reason that Malott was the man who harbored his boy, and a hostile witness at his trial, and that the position of the prosecuting attorney was necessarily hostile to him. Whatever the feelings of these two men may have been, no unfairness was exhibited by either in the course of the...
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