Shelton v. State

• Court: Ohio Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Shelton v. State, 102 Ohio St. 376, 131 N.E. 704 (Ohio 1921)
• Decision Date: 03 May 1921
• Docket Number: 16534
• Parties: Shelton v. The State Of Ohio.

131 N.E. 704

102 Ohio St. 376

Shelton v. The State Of Ohio.

No. 16534

Supreme Court of Ohio

May 3, 1921

Criminal law - Argument to jury - First degree murder - Recommendation of mercy - Constitutional law - Section 10, Article I Constitution - Of rights of accused.

1. It is the privilege of an accused upon trial to argue to the jury in person or by counsel every controlling fact which the evidence tends to support, and every reasonable inference therefrom touching the question of his guilt or innocence, or which may tend to mitigate or lessen the penalty, where the jury are empowered to fix such penalty.

2. Upon trial, under an indictment for murder in the first degree, a refusal to permit the accused in person or by counsel to argue to the jury the desirability, advisability or wisdom of recommending mercy, is a denial of the right of the accused to "defend in person and with counsel" under Section 10, Article I of the Constitution of the State of Ohio.

The plaintiff in error, Ludie Clifford Shelton, alias James Shelton, was indicted at the July term, 1918, of the court of common pleas of Hamilton county, for murder in the first degree. The indict- ment contained two counts. In the first count the plaintiff in error was charged with the killing of Deiters unlawfully, purposely and of deliberate and premeditated malice. In the second count he was charged with the killing of Deiters while perpetrating or attempting to perpetrate a robbery. To this indictment a plea of not guilty was entered, and at the January term, 1919 upon trial, he was convicted upon the second count, as charged, without recommendation of mercy. At the trial, the court in his charge to the jury made no mention of the right or privilege of the jury to recommend mercy, other than to read to them the different forms of verdict, in one set of which forms, "finding him guilty as charged in both counts," "finding him guilty as charged in the first count and not guilty as charged in the second count," and "finding him guilty as charged in the second count and not guilty as charged in the first count," were the words, "and we do recommend mercy."

Upon the argument to the jury counsel for the defendant used the following language: "And remember that, among the tributes that are not despised by anybody, that are not despised by Almighty God or by His Son when He came on earth was the tribute of mercy. When you get to your jury room, you have a right under the law, as the Court will give it to you you will have a right, under certain phases of this case, to consider mercy.

Whereupon the court interrupted him: "One minute, you can't state to the jury what they may do. The Court will have to correct you there, Mr. Stewart."

"MR. STEWART: I can certainly state to the jury, your Honor, to consider mercy, can't I?

"THE COURT: No, you cannot. That has been held error by the Supreme Court.

"MR. STEWART: Well, that is impaneling a jury, if the court please. "THE COURT: No sir.

"MR. STEWART: Counsel for the defense excepts to the Court's instruction that he can not talk about mercy to the jury."

Mr. James G. Stewart and Mr. M. C. Lykens, for plaintiff in error.

Mr. Louis H. Capelle, prosecuting attorney, and Mr. Charles S. Bell, assistant prosecuting attorney, for defendant in error.

ROBINSON J.

The sole question here is as to the right of the accused, in argument by counsel, to urge the jury to exercise the power and privilege vested in them by Section 12400, General Code, to recommend mercy and thereby spare his life. For it must be conceded that if he has such right, and that right is denied him, such denial would be highly prejudicial.

Section 10, Article 1 of the Ohio Bill of Rights, provides: "In any trial, in any court, the party accused shall...