Morgan v. State
| Decision Date | 23 May 1891 |
| Citation | 27 N.E. 710,48 Ohio St. 371 |
| Parties | MORGAN v. STATE. |
| Court | Ohio Supreme Court |
Error to circuit court, Hancock county.
At the January term, 1890, of the court of common pleas of Hancock county, the plaintiff in error was jointly indicted with nine others for the crime of robbery, charged to have been committed February 7, 1889, by forcibly taking from the person of one Wesley Oman $150. Being arraigned, the defendants pleaded not guilty. At the March term, 1890, the plaintiff in error was tried separately. The state's evidence tended to show that the crime was committed in the evening of February 7th, at the residence of one Joshua Oman by seven armed men, disguised by masks, who broke into the house and terrorized the inmates, consisting, at the time, of five men, one woman, three boys, (two half grown and one small one,) in all nine persons. The defendant's evidence tended to establish an alibi and good character. The jury returned a verdict of guilty. A motion for a new trial was overruled and sentence pronounced. This judgment was affirmed by the circuit court. To reverse these judgments this proceeding in error is brought.
Syllabus by the Court
1. A statement in a motion for a new trial in a criminal case that ‘ the court erred in refusing to admit testimony to go to the jury which was offered by the detendant,’ is a sufficient statement to bring to the notice of a reviewing court the question whether or not error intervened in refusing to permit the defendant to cross-examine the state's witnesses.
2. Where one of several defendants jointly indicted for a felony is tried separately, and the prosecuting witness testifies in chief that the offense was committed by several persons acting together, and testifies to the identity of the defendant upon trial, it is proper, in cross-examination, for the defense to inquire as to the identity of the other participants, and it is error for the court to refuse to permit such cross-examination.
3. The plea of not guilty in a criminal case puts in issue all facts material to be proven by the state, as well those relating wholly to the corpus delicti as those relating to the connection of the accused with the offense. The issue thus made is to be tried by the jury, and not by the court and where the defendant has not, by his testimony or otherwise, admitted the claim of the state as to the body of the crime, it is error for the court to recite to the jury the substance of the state's evidence giving the details of the circumstances surrounding the commission of the alleged offense, and instruct them that those facts are shown by the uncontradicted evidence in the case.
4. An instruction to a jury that a reasonable doubt ‘ is a doubt that you, as jurors, can give a reason for’ is inaccurate and misleading, and the fault is not cured by prefacing the statement with the instruction that ‘ by a reasonable doubt is meant not a captious or whimsical doubt.’
5. In the trial of a jury case the judge is not required to sum up the evidence. It is not improper to do so, providing it is fairly done, and all the material evidence on both sides fairly presented. But it is improper and erroneous for the judge to single out isolated parts of the testimony, and instruct as to the law arising on the facts which such testimony tends to prove, or to give undue prominence to some portions of the testimony, and entirely pass over other portions equally important, or give the same but slight attention.
Jason Blackford , for plaintiff in error.
Jas. A. Bope , Pros. Atty., and A. Zugschwert , for the State.
SPEAR, J., (after stating the facts as above .)
The errors complained of relate principally to the refusal of the court to allow full cross-examination of the state's witnesses, and to the charge of the court to the jury.
1. As to the cross-examination. Benjamin Tremaine, called by the state, testified in chief that he was acquainted with Morgan; that while the robbers were in the house the evening of the robbery one of the men stood near the lamp, and while there his mask dropped down, and he (witness) recognized him, and knew him to be Morgan. In answer to a question put by prisoner's counsel the witness testified that he knew three of the robbers. The counsel then asked what three he knew. To this the state objected. The court sustained the objection, and refused to permit the witness to answer. Similar questions were asked of other witnesses for the state, who had testified that they recognized Morgan. Like objections were sustained, the court holding that ‘ the witness should give the name of the family who were present, but that he should not mention the names of the other robbers he may have recognized.’ It is difficult to perceive any valid ground for the refusal to allow the questions put in cross-examination to be answered. The charge against Morgan was that he, with others, committed the robbery. The theory of the state's case was that the crime was the joint act of several. To maintain this theory the state gave evidence of the presence of several persons, and of their acts and declarations. These acts and declarations constituted the thing done,-the robbery. The right of cross-examination extends in all cases to all matters connected with the res gestae . Whart. Ev. § 529; Martin v. Elden, 32 Ohio St. 282. It was perhaps not incumbent on the state to prove identification of any of the alleged robbers save Morgan, but it was the right of the defendant to know, in detail, not only what was done, but, so far as cross-examination would elicit it, who did it, as well as who were present at the time. The effect of the proof of the identification of Morgan might have been materially impaired by statements of the witnesses as to the identification of others, but, whatever the probable result, the defense had the right to make the effort. Such cross-examination would have been a test of the accuracy, truthfulness, and credibility of the witnesses as to their testimony generally, and especially as bearing upon their identification of Morgan. The ruling is sought to be justified on the ground that the identity of those persons other than Morgan was immaterial, and that the inquiry as to their identity would have unduly prolonged the trial, and led to a trial, in the Morgan case, of the guilt of the others who might have been identified.
We have already commented on the materiality of the attempted cross-examination. As to the other objection it is sufficient answer to say that the right of a party to a fair cross-examiantion is not to be determined by considerations of convenience, nor is that right to be curtailed because such cross-examination, and pertinent evidence following it, might have tended to show that persons other than the one on trial, charged in the same indictment, are or are not guilty; and no reason is perceived why the defense would not have had the right to endeavor further to discredit the testimony of the witnesses for the state by offering proof contradictory of their statements as to the presence and participation of persons other than Morgan at the Oman house that evening.
It is urged that the question is not before this court because the objection is not made in the motion for a new trial. One ground stated in the motion is ‘ that the court erred in the refusal to admit testimony to go to the jury which was offered by the defendant.’ This assignment is quite general, but we think that, giving to it that liberal construction which courts give to language in aid of justice in criminal cases, it should be held sufficient. The offer was to elicit evidence from the state's witnesses. The court excluded it, and exception was duly entered. Had the counsel stated what he expected to prove, no one, we presume would doubt that the assignment in the motion would be broad enough to cover it. We cannot see that, in principle, the case is any different by reason of the fact that no such statement was made, for in cross-examination it is not incumbent on the counsel to disclose what he expects to...
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