State v. Davis, 40612
| Decision Date | 19 April 1967 |
| Docket Number | No. 40612,40612 |
| Citation | 226 N.E.2d 736,10 Ohio St.2d 136 |
| Parties | , 39 O.O.2d 122 The STATE of Ohio, Appellee, v. DAVIS, Appellant. |
| Court | Ohio Supreme Court |
The defendant, Davis, was arrested for armed robbery. Witnesses were called at a preliminary hearing, but defendant did not testify. However, he did testify at the trial. He was indicted on a charge of armed robbery, pleaded not guilty and was tried to a jury, found guilty and sentenced.
On appeal to the Court of Appeals, the judgment of the trial court was affirmed.
The cause is now before this court on a motion for leave to appeal.
J. Warren Bettis, Pros. Atty., for appellee.
George A. Aronson and Bernard Fineman, East Liverpool, for appellant.
At the trial the state commented to the jury that the defendant failed to testify at the preliminary hearing. The court charged the jury that, by constitutional and statutory provisions, failure of accused to testify at his trial may be considered by the court and jury and may be the subject of comment by counsel, but that a preliminary hearing before a county judge is not a trial and 'the fact that defendant did not testify at that hearing is not proper to be made the subject of comment by counsel in this trial and you are instructed to disregard that entirely, the preliminary hearing.' In our opinion, this charge could not correct the error in the aforementioned conduct of the state.
The motion for leave to appeal is allowed. The judgment of the Court of Appeals is reversed on authority of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189, and the cause is remanded to the trial court for a new trial.
Judgment reversed.
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State v. Crissman
...a prosecuting attorney may not comment upon the failure of the accused to testify at the preliminary hearing. State v. Davis, 10 Ohio St.2d 136, 226 N.E.2d 736. See State v. Minamyer, 12 Ohio St.2d 67, 232 N.E.2d In the instant case, the prosecuting attorney made no comment on the fact that......
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State v. Paul Harris
...without however arguing any inference from that fact, the comment is considered to be violative of defendant's rights. State v. Davis (1967), 10 Ohio St. 2d 136; v. Lynn, supra; State v. Smith (1967), 10 Ohio App. 2d 186 ("This man never took the stand to tell you that"). See also State v. ......
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State v. Stephens
...the subject matter of the refusal which would impress the minds of the jurors.' We reached a similar conclusion in State v. Davis (1967), 10 Ohio St.2d 136, 226 N.E.2d 736, as to comments of a prosecutor relative to the defendant's refusal to appear and testify at a preliminary hearing. Her......
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State v. Jeff King
... ... prosecutor's direct reference to the defendant's ... silence (see, Griffin, supra, State v. Davis (1967), ... 10 Ohio St.2d 136; State v. Stephens (1970), 24 Ohio ... St.2d 76), statements by the prosecutor here did not focus on ... ...