State v. Abbott
| Decision Date | 23 November 1949 |
| Docket Number | 31741. |
| Citation | 89 N.E.2d 147,152 Ohio St. 228 |
| Parties | STATE v. ABBOTT. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Where one of two defendants jointly indicted for murder in the first degree has, in the absence of the other, made admissions or confessions implicating such other, and where it is disclosed that such admissions or confessions will be introduced in evidence, in is error to require a joint trial of the two defendants over the objection of the nonconfessing defendant.
2. Where two defendants are jointly indicted for murder in the first degree and the confession of one of the defendants implicating the other defendant in the commission of the crime is introduced in evidence, unless the nonconfessing defendant consented to a joint trial, an instruction to the jury to disregard the confession as against the nonconfessing defendant does not adequately protect the latter in his right to a fair trial.
This is an appeal of the defendant from a judgment affirming a conviction of murder in the second degree.
Marie Abbott, her husband, Morris Abbott, and two children, ages 13 and 8, resided on a farm in Butler county. In 1946, Cyril 'Scotty' Gordon, unmarried, was employed by the Abbotts as a farm hand and he resided with them.
About three or four months after Gordon came into the Abbott home an infatuation developed between Gordon and Marie Abbott and a sexual relationship between them ensued and continued until a few weeks prior to Morris Abbott's death.
In January 1948, Morris Abbott became aware of the illicit relationship between his wife and Gordon and Gordon was discharged, whereupon he worked for another farmer in the same neighborhood, during which time he and Marie continued to see each other on frequent occasions.
About April 24, 1948, as a result of a conference between Gordon and Marie, it was decided that she should ask her husband for a divorce. A few days later, Marie discussed the matter with her husband and she was told by him that she must choose between Gordon and her children. In a few days Marie informed her husband that she had determined to remain with him and her children. At that time she confessed to him her illicit relationship with Gordon and asked and received her husband's forgiveness. Marie then, with her husband's consent, saw Gordon and informed him of her decision to remain with her husband and children. However, she saw Gordon at times during the month of May 1948. Gordon planned a trip to Indianapolis to attend the automobile races on Memorial Day 1948, and Marie gave him $30 to defray expenses. On May 31, Gordon called Marie from Indianapolis by telephone and inquired whether Morris would be home that evening and whether she was going to a musical recital that night as she had planned and as she had previously advised Gordon. Upon being advised in the affirmative, Gordon told Marie that he might drive down to see Morris that night and requested her to leave $10 for him (Gordon) behind his picture which had remained on the piano in the Abbott home. That evening Marie left $10 behind Gordon's picture and took her children, her mother Morris' mother and a lady friend to Hamilton to a piano recital in which Marie's daughter, Phyllis, took a part.
Gordon arrived from Indianapolis at the Abbott home about 10 p. m. that night and met Abbott. They went back a lane on the Abbott farm to some farm buildings where an altercation took place and Gordon Killed Abbott by striking him with a mattock. When Marie returned from the recital some time after 10:30 p. m., she noticed that the $10 was gone from behind Gordon's picture and in place of the money was a note from Gordon which read: 'If you get home before Morris does, I will see you.' Later that night, Gordon came back to the Abbott home and advised Marie that he had killed her husband.
Marie made some suggestions as to various means to make Morris' death appear as suicide or accident. Gordon finally placed Morris' body on a railroad near a crossing so as to make it appear that Morris had been killed by accident.
Gordon then returned to Indianapolis by automobile, arriving there early the next morning. The following afternoon he returned to Butler county and was taken into custody. Two days later, June 3, 1948, he made a complete confession of his killing of Morris. This was supplemented by two later statements as to the killing.
In these typewritten question-and-answer confessions signed by Gordon, he implicated Marie with the crime by stating that he had had illicit sexual relations with her ever since a time about three months after he went to the Abbott home; that he saw Marie the same night after the killing and told her what had happened, whereupon she said that she 'regretted it happened that way'; that he called her by telephone from Indianapolis the day of the murder and asked her if Morris would be at home that evening and she said, 'yes,' and told Gordon she would not be at home; that Morris' body was still in the barnyard when Gordon saw Marie that night; that he returned to the barnyard after he told Marie it was 'all over with'; that she said she was sorry it had to end that way; and that he then went to the barnyard and placed the body on a truck and took it to the railroad.
The confession continued as follows:
In answer to other questions he stated:
Gordon then answered, as follows, the question:
When Gordon told Marie he had struck and killed Morris,
The confession continued:
Marie was arrested on June 3, 1948, when she was questioned. She at first denied intimacy with Gordon but soon thereafter admitted adultery, a trip to a hotel in Indianapolis, a visit to a tourist cabin, and that she and Gordon on several occasions discussed a divorce. However, she denied that she at any time entered into any plan to murder her husband.
Gordon and Marie were jointly indicted for murder in the first degree. Before trial the state made an application for joint trial of Gordon and Marie for reasons, among others, stated as follows:
'1. The evidence of the state will disclose that the death of Morris Abbott was the result of a plan, plot or conspiracy between the two defendants.
'2. In the event of a joint trial, all of the evidence pertaining to such plan or conspiracy would be submitted so that the jury, although they would be enabled to separate the part that applied to each defendant, nevertheless would have a complete picture of the whole plan.
'3. If the jury is given the complete picture of the plan or conspiracy, they can better appraise the part, if any, each defendant had in it and will be enabled to arrive more intelligently at a proper conclusion.
'4. Only a joint trial would result in a fair, intelligent and complete submission of all the evidence so that the trial would result in justice being done, not only to the defendants, but also to the public.
5. The state must prove a plan or conspiracy to commit this murder and when such evidence is produced it must apply to both defendants and, by reason thereof, no undue advantage can be taken as to one over the other defendant.'
The court granted the motion of the state. Later, counsel for Marie moved the court to vacate the order for joint trial, which motion was overruled.
By the verdict of a jury Gordon was found guilty of murder in the first degree with a recommendation of mercy, whereas Marie was found guilty of murder in the second degree. The court overruled separate motions for a new trial and entered judgments upon the verdicts.
Each defendant perfected an appeal to the Court of Appeals, which court affirmed the judgments of the court below.
The appeal of Marie is in this court by reason of the allowance of a motion for leave to appeal.
Mr. Jackson Bosch, Prosecuting Attorney, Hamilton, for appellee.
Mr. William F. Hopkins, Cincinnati, and Mr. Gilbert E. Condo, Hamilton, for appellant.
The principal question in the appeal to this court is whether, where two defendants are jointly indicted for first degree murder and it is disclosed, preceding the trial of the codefendants that signed confessions by one of them made in the absence of the other will be offered in evidence, which confessions implicate such other, it is prejudicial error as to the latter codefendant for the trial court to grant, over such codefendant's objection, the state's motion for a joint trial.
A collateral question is whether, where such joint trial is ordered and a confession is admitted in evidence as against the maker, an instruction to the jury to disregard the confession as against the other codefendant, gives adequate...
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