State v. Ellis

• Decision Date: 19 March 1918
• Docket Number: 15457
• Parties: The State Of Ohio v. Ellis
• Court: Ohio Supreme Court

120 N.E. 218

98 Ohio St. 21

The State Of Ohio v. Ellis

15457

Supreme Court of Ohio

March 19, 1918

Jurors - Voir dire examination - Discretion of trial court-Opinion of venireman - Recommendation of mercy - In first degree murder case.

1.

In a voir dire examination of veniremen to qualify them as fair and impartial jurors under the constitution and the law, such examination, where not specifically controlled by statute, is largely in the discretion of the trial judge, and no prejudicial error can be assigned in connection with such examination unless there be a clear abuse of such discretion.

2.

A venireman's opinion as to the wisdom or unwisdom of a recommendation of mercy upon a conviction of murder in the first degree is not subject to inquiry upon a voir dire examination of the venireman.

3.

Whether or not a recommendation of mercy shall be made upon

finding an accused guilty of murder in the first degree is a matter vested fully and exclusively in the discretion of the jury.

Facts are stated in opinion.

Mr John V. Campbell, prosecuting attorney, and Mr. Simon Ross, Jr., assistant prosecuting attorney, for plaintiff in error. Mr. Raymond Ratliff, for defendant in error.

WANAMAKER, J.

One Carl Fischer was being examined as to his qualifications as a juror. The following questions and answers appear from the record:

By Mr. Ratliff, attorney for defendant.

"Q. Mr. Fischer, in a case of murder in the first degree, would you be opposed to the consideration of the extension of mercy to a man who you felt was guilty of so great a crime? A. Yes sir.

"Q. You would be opposed to it? A. Yes sir.

"Q. So that if you were of the firm conviction and were convinced beyond all reasonable doubt that a man was guilty of murder in the first degree, you would not be willing to consider the extension of mercy? A. No sir."

By the Court.

"If the law provided that you should consider mercy, would you feel so set in your opinion that you would bring in a verdict without recommendation of mercy, without even considering mercy? A.

I don't think I could consider it fairly, Your

Honor, no, because of my theory, an eye for an eye."

By Mr. Ross, attorney for the state.

"Q. I am not asking you whether you would vote for the death penalty. He merely asked you, whether under the instructions of the Court, along with the other instructions he will give you, whether you could take this matter up under consideration, or whether you would bottle yourself up and say, `No I won't consider it at all'? A. First degree murder is a chair with me. If I am sure he is guilty, first degree, that is a chair.

"Q. You don't think you could consider the question of mercy at all? A. No sir, not if I felt sure it was first degree murder."

The counsel for the defendant, Reuben Ellis, submitted a challenge for cause and the court sustained the challenge and excused Mr. Fischer.

The counsel for the state took proper exceptions to the ruling of the court.

It is urged that the foregoing voir dire examination, the challenge of counsel, and the allowance of that challenge, to which the prosecutor excepted, are justified by virtue of Section 12400, General Code, which reads:

"Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life."

This provision authorizing the jury to recommend mercy, whereupon the court shall impose only life imprisonment, is the result of an amendment made by the general assembly of Ohio in 1898, as found in 93 Ohio Laws, 223.

No case in Ohio seems to have considered fundamentally the legal practice and judicial limit on a voir dire of veniremen preliminary to challenge in criminal cases. In other states the practice is not uniform. In some, counsel for the prisoner and the state are given wide latitude and are almost free from control by the court in the preliminary questions. In others, the trial judge takes charge of the preliminary examination, takes it to the point of qualifying the jury, challenging for cause, and after he has completed this examination turns the veniremen over, first, to counsel for the state, and then to counsel for the defense, for further inquiry, if any; but such inquiry is limited to new matter and not merely to repetition of the inquiry of the trial judge.

The latter practice has much to commend it in she saving of time and in the avoiding of any unpleasantness and irritation between counsel and the veniremen, the latter often objecting to the vigorous cross-examination by persistent counsel, ofttimes impugning their sense of fairness and impartiality.

When we remember how in some jurisdictions days and weeks are consumed in qualifying the twelve men in the jury box for the trial of some murder case, the importance of keeping the voir dire examination within proper limits is most manifest. Our statute providing for challenge in criminal cases, Section 13653, General Code, is as follows:

"The following shall be good cause for challenging a person called as a juror on an indictment:

"First. That he was a member of the grand jury which found such indictment;

"Second. That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed such opinion, the court shall thereupon examine such juror on oath as to the grounds thereof, and if such juror says that he believes he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror in such case;

"Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death;

"Fourth. That he is related within the fifth degree to the person alleged to be injured, or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant;

"Fifth. That he served on a petit jury drawn in the same cause against the same defendant, and such jury was discharged after hearing the evidence, or rendered a verdict thereon which was set aside;

"Sixth. That he served as a juror in a civil case brought against the defendant for the same act;

"Seventh. That he has been subpoened in good faith as a witness in the case; "Eighth. That he is an habitual drunkard;

"Ninth. Like challenges shall be allowed in criminal prosecutions as are allowed in civil cases."

The last provision reads into the criminal statute the civil statutes pertaining to challenges, which in turn become important. They are as follows:

"Sec. 11437. The following shall be good causes for challenge to any person called as a juror for the trial of any cause:

"1. That he has been convicted of a crime which by law renders him disqualified to serve on a jury;

"2. That he has an interest in the cause;

"3. That he has an action pending between him and either party;

"4. That he formerly was juror in the same cause;

"5. That he is the employer, employe, counsellor, agent, steward, or attorney of either party;

"6. That he is subpoened in good faith as a witness in the cause;

"7. That he is akin by consanguinity or affinity within the fourth degree, to either party, or to his attorney;

"8. That he is a party to another action then pending in any court, in which an attorney in the cause then on trial is an attorney, either for or against him;

"9. That he, not being a regular juror of the term, has served once already as a talesman in the trial of any cause, in any court of record in the county within the preceding twelve months; and in any of such bases each shall be considered as a principal challenge, and its validity tried by the court.

"Sec. 11438. Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, or for want of a competent knowledge of the English language, or other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be determined by the court, and be sustained if the court has any,, doubt as to the juror's being entirely unbiased.

It is significant that upon amendment of the homicide statute in 1898 there was no change made in the provisions as to the grounds for challenge of jurors.

The right of trial by jury, particularly in criminal cases, is generally conceded to be a part of the English system of jurisprudence. Its earliest origin is unknown, but its substantial recognition, even by royalty, is recorded in Magna Charta, where the right was guaranteed in the famous document from King John of England in 1215. This charter has been generally recognized as the bulwark of English liberties.

The special provision of the charter applying to the right of trial by jury follows:

"No freeman shall be hurt in either his person or property, unless by lawful judgment of his peers or equals, or by the laws of the land."

Originally the jurors were selected from the vicinage or neighborhood because of the superior knowledge of such a jury concerning the defendant personally and the facts touching his guilt or in- nocence; in short, the knowledge of...