Makley v. The State Of Ohio.
| Decision Date | 18 June 1934 |
| Citation | 197 N.E. 339,49 Ohio App. 359 |
| Parties | Makley v. The State Of Ohio. |
| Court | Ohio Court of Appeals |
Criminal law - First degree murder - Defendant's plea in abatement properly overruled, when - Indictment, following statutory wording, not demurrable - Section 12402-1, General Code - Overruling defendant's motion for change of venue, not error, when - Copy of special venire need not be served on defendant, when - Precaution to prevent violence or escape proper, when - Right of public trial not violated by requiring passes for admission, when - Unnecessary to prove defendant knew deceased was sheriff, when - Reversal of sentence of conviction unauthorized, when - Section 13449-5 General Code.
1. In a prosecution for murder in the first degree it is not error for the trial court to overrule defendant's plea in abatement on the ground that the indictment was returned by the grand jury at the request and direction of the prosecuting attorney; nor does the fact that another indictment was pending against the defendant at the time the indictment on which the de- fendant is being tried was returned, in any way operate as a bar to the prosecution under such indictment.
2. An indictment for murder in the first degree which follows the wording of Section 12402-1, General Code, is not demurrable.
3. It is not an abuse of discretion for the trial court to overrule the defendant's motion for a change of venue where the evidence shows that the case against the defendant was given as much publicity in every other county in the state as it was in the county in which the prosecution was brought.
4. Where the original venire for a jury is exhausted, there is no requirement that a copy of the special venire be served on the person charged with a capital offense, or that any time be given defendant for an examination of such special venire.
5. It is within the discretion of the trial court to require a prisoner to remain manacled and shackled throughout the trial; to maintain a military guard at the court house and jail and a non-military guard in the court room; to use a pass system for the admission of persons, including prospective jurors, to the court house and court room; and to cause such persons to be searched prior to their admission to the court room, where it is manifest that such precautions are necessary to prevent violence or escape; nor is the defendant's right to a public trial violated where it is shown that the persons admitted by such passes were limited only by the seating capacity of the court room.
6. In a prosecution under Section 12402-1, General Code, it is unnecessary to prove defendant knew that deceased was a sheriff where the defendant entered the jail office and addressed a person therein on a matter of official business necessarily connected with the office of sheriff.
7. Under the provisions of Section 13449-5, General Code, in order to authorize a reversal of the sentence of conviction it must affirmatively appear from the record that the accused was prejudiced by the errors complained of or was prevented from having a fair trial.
Court of Appeals for Allen county.
Miss Jessie Levy, Mr. William Fogarty and Mr. Clarence C. Miller for plaintiff in error. Mr. Ernest M. Botkin, prosecuting attorney, Mr. Joseph Flick and Mr. Benjamin Motter, for defendant in error.
On the twenty-seventh day of October, 1933, Charles Makley, the plaintiff in error, who will hereafter be referred to as defendant, being the relation he appeared in the trial court, was indicted by the grand jury of Allen county, Ohio, under Section 12400, General Code, for the unlawful killing of Jess Sarber, the sheriff of said county, on the twelfth day of October, 1933, the indictment charging murder in the first degree.
Subsequent to January 25, 1934, he was brought from the state of Indiana into Allen county, Ohio. The record does not show whether he was brought into Ohio by extradition proceedings or otherwise, but does show that he was present in the county and state subsequent to January 25, 1934. On the fourteenth day of February, 1934, another indictment was returned by the grand jury of Allen county, Ohio, based on the provisions of Section 12402-1, General Code, charging him with murder in the first degree in the killing of Jess Sarber, sheriff of said county, while he, the said Jess Sarber, was in the discharge of his duties. A plea in abatement was filed to this indictment, which was overruled, and a demurrer was then filed to the indictment, which was also overruled. No request was made for a bill of particulars. Charles Makley was then tried before a jury on this indictment and upon trial was convicted of murder in the first degree without a recommendation of mercy, and sentenced to death. He did not take the witness stand in his own behalf. This error proceeding is brought to set aside the verdict of the jury on said trial and to reverse said sentence.
As shown by the record, for some time prior to September 26, 1933, Charles Makley was a prisoner in the Indiana state prison at Michigan City, Indiana, and in company with Harry Pierpont, Russell Clark, Edward Shouse, John Hamilton and other prisoners, escaped therefrom. For about ten days immediately preceding and including October 12, 1933, one John Dillinger was confined in the Allen county jail, in charge of Jess Sarber, the sheriff of said county, on a charge of robbing a bank located at Bluffton in Allen county. On October 12, 1933, between six and six-thirty o'clock in the evening, Makley, Pierpont and another person whose identity was not established by the record, entered the office of the county jail at Lima, while another person whose identity is not shown by the record, kept watch in front of said jail. Jess L. Sarber, sheriff of Allen county, was sitting at his desk in the jail office with Mrs. Sarber, the wife of the sheriff, and Wilbur Sharp, a deputy sheriff of said county. The sheriff was in charge of the jail and the prisoners and acting in the discharge of his duties as sheriff. Makley, Pierpont and their companion entered the office of the jail from the east door, approached the desk where the sheriff was sitting and said to him that they were officers from Michigan City, Indiana, and desired to see John Dillinger. In reply to that statement the sheriff asked for credentials. Makley and his companions then each produced revolvers and said, "These are our credentials." The sheriff started to rise from his chair and was immediately shot by Pierpont, the bullet entering the left side of his abdomen and passing through, entered his right thigh. He fell to the floor and immediately tried to rise to his elbow, whereupon Makley struck him a severe blow on the head with his revolver. After this, Pierpont struck the sheriff over the head with his revolver. Mrs. Sarber begged Makley and Pierpont to do the sheriff no further injury and she produced the keys to the jail and delivered them to Makley who then in turn forced deputy Sharp to open the doors. Pierpont took possession of a revolver owned by the sheriff. Dillinger was liberated from the jail by Makley, Pierpont and their companion, and Mrs. Sarber and Deputy Sharp were locked in with the prisoners. Makley, Pierpont and their companion, accompanied by Dillinger, left the jail. Approximately two minutes elapsed from the time Makley and his companions entered the jail until they left the same. Sheriff Sarber died about eight o'clock on the evening of October 12, his death resulting from loss of blood and shock caused by the bullet wounds and the blows on his head. Makley, Pierpont, Clark and Dillinger were arrested in Tucson, Arizona, January 25, 1934, and in their possession at the time of the arrest the arresting officers found a well equipped arsenal with revolvers, machine guns, ammunition, bullet-proof vests and other similar equipment, and approximately thirty-six thousand dollars in cash, and the revolver belonging to Sheriff Sarber that was taken from him at the time he was killed.
As shown by the record, the defendant Charles Makley was manacled and shackled through the trial of the case. Members of the National Guard of Ohio, under the command of General Harold Bush, were, under the direction of the trial court and in aid of civil authorities, guarding the court house where the trial was being held and the jail in which the defendant was confined during the period of the trial. A board fence was erected and maintained between the court house and the jail, and admission to the court house and the court room was by means of passes issued under the general supervision of the trial judge and signed by the trial judge and General Bush; all entrances to the court house with the exception of one ground floor door were closed and guards were stationed at this door who were armed and who permitted a person to enter only on pass signed as aforesaid. There were also members of the National Guard on duty in the corridors of the court house, including the corridor on the third floor where the court room is located in which the trial was held, who were armed with machine guns, rifles and riot clubs. A guard was also stationed outside of the public entrance to the court room in which the trial was being held who permitted the entry only of persons carrying passes. No members of the National Guard were stationed in the court room, but during the trial certain deputy sheriffs were stationed there who were armed with revolvers carried in holsters. All persons admitted to the court room, including jurors and prospective jurors, were searched by members of the guard before their admission to the court room. The trial court exercised general supervision over the issuance of passes, and there is no evidence...
To continue reading
Request your trial