Liska v. State

• Decision Date: 15 June 1926
• Docket Number: 19638
• Parties: Liska v. The State Of Ohio.
• Court: Ohio Supreme Court

152 N.E. 667

115 Ohio St. 283

Liska v. The State Of Ohio.

No. 19638

Supreme Court of Ohio

June 15, 1926

Criminal law - First degree murder - Recommendation of mercy - Instruction to jury after retirement not prejudicial - Right of pardon board or governor to pardon - Not error to admonish jury to continue deliberations, when - Admissibility of confession which defendant claimed was secured by duress.

Mr James T. Cassidy, for plaintiff in error.

Mr Edward C. Stanton, prosecuting attorney, and Mr. H. E Parsons, for the defendant in error.

BY THE COURT.

This plaintiff in error, Frank Liska, was indicted, tried, and convicted of murder in the first degree. The jury did not recommend mercy. The trial judge imposed the sentence of death. The Court of Appeals affirmed the judgment of the trial court. Liska prosecutes error in this court.

The deceased was the wife of Liska. The evidence clearly indicated that death resulted from personal violence, to wit strangulation. The body, when found by firemen and policemen between 2 and 3 o'clock in the morning, was in a burning chicken house, owned by Liska, and located in the rear of the home owned and occupied by the Liska family.

Almost the entire argument of counsel for Liska in this court is devoted to errors arising by reason of the conduct of the trial judge in giving additional instructions to the jury after the jury had had the case under consideration for some time, and to errors arising by reason of admission of a written confession made by Liska shortly after the murder, and claimed by him, at the trial, to have been secured by duress. At least two forms of verdict were furnished to the jury for their use. Form No. 2 was a verdict of guilty of murder in the first degree, with recommendation of mercy. After considering the case for about 24 hours, the jury, at their own request, were brought into court, with the accused and counsel for both sides present, and then the foreman, referring to verdict No. 2, asked the trial judge this question: "We would like to have you inform us if there is any hope of pardon if that verdict is brought in."

The trial judge told the jury the pardon board could not recommend a pardon for one convicted of murder in the first degree, except on evidence showing innocence beyond a reasonable doubt, and then also said to the jury that the Governor could pardon, if so disposed, at any time. Counsel for Liska insists that "this was prejudicial error of the most glaring kind." We cannot agree with counsel on this. The recommendation of mercy rests wholly in the sound discretion of the jury. They may extend or withhold as they see fit. The trial court might have declined to answer the question asked by the jury, but he did answer, and then told the jury it was not an issue in the case, and that it was not a thing for the jury to speculate upon.

After the jury had considered the case for about 48 hours, they reported that as matters then stood it would be impossible for them to agree. The trial judge then admonished them saying that it was their duty to counsel with each other and listen to reason, and not to act from stubbornness alone, or in any spirit of that kind, and directed that they continue their consideration of the case. Counsel for Liska claims the jury should then have been discharged. The trial judge was clearly within his right and duty in what he said and...