Pierpont v. The State Of Ohio.
| Decision Date | 18 June 1934 |
| Parties | Pierpont v. The State Of Ohio. |
| Court | Ohio Court of Appeals |
Criminal law - Indictment for first degree murder, following statutory form, not demurrable - Section 13437-6, General Code - Trial court authorized to amend indictment, when - Section 13437-29, General Code - Duty of trial judge to forestall likely forcible release of defendant, when - Precautionary measures proper, when - Requiring pass for admission not violative of right to public trial, when.
1. An indictment for murder in the first degree which follows the form prescribed by Section 13437-6, General Code, is not demurrable.
2. The trial court is authorized, by Section 13437-29, General Code to amend an indictment by inserting thereon the endorsement "A true bill", when the omission was inadvertent and not prejudicial to the accused.
3. Where the trial court has good reason to believe that the defendant is a desperate and dangerous criminal and that there is evident possibility of his criminal confederates still at large attempting to deliver him from justice, it is not only within the discretion of the trial judge but his duty to take steps to forestall a likely forcible release of the defendant. Under such circumstances it is not improper to have the defendant shackled, armed officers within the court room, and a cordon of soldiers about the court house, during the trial.
4. Where the circumstances necessitate such precautionary measures, it is not violative of the defendant's constitutional right of a public trial to require all who desire to pass the cordon of soldiers and enter the court room to have a pass signed by the judge or military officer, if no one is excluded who, after search and inquiry, is found to be a person of law abiding intentions.
Court of Appeals for Allen county.
Miss Jessie Levy, Mr. William Fogarty and Mr. Clarence C. Miller for plaintiff in error. Mr. Earnest M. Botkin, prosecuting attorney, Mr. Joseph H. Flick and Mr. Benjamin Motter, for defendant in error.
WILLIAMS J. Harry Pierpont, plaintiff in error here, was indicted for the murder of Jess Sarber, the sheriff of Allen county. He was tried in the Court of Common Pleas, was found guilty without a recommendation of mercy, and sentenced to death.
It further appears that in May, 1933, John Dillinger was paroled from the state prison at Michigan City, Indiana, where he had been serving a sentence for robbery; that, later, on or about September 24, 1933, he was arrested at Dayton, Ohio; that four days later he was delivered to the sheriff of this county and brought to Lima and placed in the county jail upon a charge in connection with the robbing and looting of The Citizens National Bank at Bluffton, Ohio, which occurred in August, 1933; and that he remained in the jail until about six thirty p. m., on October 12, 1933, when he was released as the state claims, through the efforts of the defendant below, Harry Pierpont, and five alleged conspirators, Charles Makley, Russell Clark, Edward Shouse, John Hamilton and Harry Copeland, the climax of this jail delivery being the murder of Jess Sarber.
On the night of October 11, 1933, the defendant's alleged rescuers had stayed at the home of Pierpont's parents near Leipsic, Ohio. Late in the afternoon of October 12 they came to Lima in two automobiles, which they parked near the county jail. The state's evidence tends to show that at about six thirty p. m., of that day Pierpont, Makley and Clark entered the jail office by the east door without knocking. At that time the sheriff, Jess Sarber, was seated at his desk, his wife sat in a chair opposite, and a deputy sheriff, Wilbur Sharp, sat on a davenport close at hand. The state's evidence further tends to show that as the three men entered the office one of them said: "We are from Michigan City, Indiana, and want to see John Dillinger." The sheriff asked them for their credentials, whereupon they all pulled guns, and one of them said, "These are our credentials." The sheriff started to rise, but was shot in the left side by Pierpont, plaintiff in error here, and as he fell to the floor he was beaten by Pierpont and others with the guns, and was so seriously injured that he died about eight p. m., the same evening. About five shots were fired in all. Mrs. Sarber was then forced to give up the keys and the deputy sheriff was compelled to unlock the door leading from the office into the jail proper. Dillinger was there waiting, and promptly made his escape with the three who had entered the jail and the three who had remained outside, on guard, or in charge of the automobiles.
Dillinger had become acquainted with the six alleged rescuers in the prison at Michigan City, Indiana, where all had been incarcerated at the same time, Copeland having been released therefrom on parol during the summer of 1933, and on September 26, 1933, Pierpont, Makley, Clark, Shouse and Hamilton, with five other prisoners, having made a daring escape from the prison under the leadership of Pierpont, who in some unknown way had succeeded in having guns brought in to him within the prison walls. After making this escape, Pierpont, Makley, Clark, Shouse and Hamilton went to Hamilton, Ohio, where they met Copeland.
The evidence tends to show very strongly that Pierpont and his confederates were exceedingly friendly with Dillinger and had planned the jail delivery. Apparently bent on the release of Dillinger they had remained in and about Hamilton and Cincinnati until they went to the home of Pierpont's parents on the night of October 11, 1933.
After the commission of the murder of Jess Sarber it seems that Dillinger and the six rescuers remained together much of the time, and on January 25, 1934, Dillinger, Pierpont, Makley and Clark were arrested in Tucson, Arizona, by the police of that city. Plaintiff in error, Pierpont, was returned to the Indiana state prison, and was later brought to Lima where he was arraigned, plead not guilty and was placed on trial. At the time of his arrest in Tucson, Pierpont had in his possession the revolver of the sheriff, Jess Sarber, which had been taken from him the night of the murder.
An indictment was returned against Pierpont October 27, 1933, and charges "that Harry Pierpont, whose real and true name is to the grand jury unknown, on the 12th day of October in the year of our Lord one thousand nine hundred and thirty three, at the county of Allen, State of Ohio aforesaid, unlawfully, purposely and of deliberate and premeditated malice, killed one Jess Sarber."
A demurrer to the indictment was filed and overruled by the court. It is contended on behalf of plaintiff in error that this action constituted prejudicial error.
The indictment is based on Section 12400, General Code, which, so far as applicable to this case, is as follows:
"Whoever, purposely, and * * * of deliberate and premeditated malice * * * kills another is guilty of murder in the first degree * * *."
Section 13437-6, General Code, provides:
The indictment follows the form prescribed by the statute, and the court properly overruled the demurrer.
The indictment, when it was returned, was signed and subscribed by Norman Evans as foreman of the grand jury, but he failed to write the words "A true bill" thereon above his signature.
Section 13436-17, General Code, provides:
"At least twelve of the grand jurors must concur in the finding of an indictment, and when so found, the foreman shall endorse on such indictment the words 'A true bill' and subscribe his name as foreman."
It appears that the bill of indictment was found and returned in the regular way, and that the omission was inadvertent. Motion to quash on this ground was overruled and the court permitted the defect to be corrected by writing the omitted words above the signature of the foreman.
As Section 13437-29, General Code, permits the amendment of an indictment before, during or after trial, "in respect to any defect, imperfection or omission in form or substance," we are of the opinion that the court below did not commit prejudicial error in overruling the motion to quash and in permitting the amendment to be made. Breinig v. State, 124 Ohio St. 39, 176 N.E. 674.
It is contended that the court erred in permitting the defendant to be handcuffed and shackled with leg irons during the trial. However, during all the time the defendant was on the witness stand the shackles were off.
It is true that ordinarily it is an invasion of the rights of an accused person to force him to remain shackled during his trial, but the right to be free from bonds is not absolute and there may be exceptions. We think the rule is accurately and concisely stated in 8 Ruling Case Law, 68, Section 22, from which we quote:
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