State v. Fox, 26722.

• Court: United States State Supreme Court of Ohio
• Citation: 133 Ohio St. 154,12 N.E.2d 413
• Docket Number: 26722.
• Parties: STATE v. FOX.
• Decision Date: 12 January 1938

12 N.E.2d 413

133 Ohio St. 154

STATE v. FOX.

No. 26722.

Supreme Court of Ohio

January 12, 1938

Syllabus by the Court.

1. Two or more persons, jointly indicted for a noncapital felony, must be tried jointly, under Section 13442-11 General Code, where an application for separate trials is made but good cause therefor is not presented.

2. When two or more persons are jointly indicted and tried, the voluntary admissions and confessions as to the offense charged, by one of them, are admissible against him as made though they may implicate a codefendant who was not present when they were given. On objection thereto by the codefendant affected, or if he requests it, the court must instruct the jury specifically that such admissions and confessions can be considered only as against the one making them and not against the codefendant.

3. Where there is offered in evidence a voluntary written confession by one defendant, containing statements deleterious to a codefendant and having no relation whatever to the offense charged, the court may properly order such matter stricken out or deleted before admitting the confession in evidence.

John Barker, Paul Fisher and Walter Fox, alias John Fox, were jointly indicted by a grand jury of Brown county, Ohio, for burglary and larceny, the alleged offense consisting of breaking and entering a chicken house at night and stealing a number of chickens. Pleas of 'not guilty' were entered by the three defendants.

All of the defendants were represented by the same counsel. Immediately preceding the commencement of their joint trial and before the jury was impaneled, their counsel made a general motion for separate trials, assigning as the sole ground 'that the trial of said defendants jointly will work to their individual prejudice.'

The state called as one of its witnesses the prosecuting attorney of Highland county, Ohio, who was permitted to testify, over objection by counsel on behalf of Fisher and Fox, concerning an oral statement by the defendant Barker, voluntarily made in the presence of the witness, confessing the crime and implicating the defendant Fox.

Immediately preceding that part of the testimony of the witness as to Barker's confession and immediately following such testimony, the court carefully instructed the jury that the alleged confession could be considered only as against Barker.

It would appear from the record that defendants' counsel were aware that a purported confession by Barker had been reduced to writing, for during the course of the Highland county prosecutor's examination, counsel remarked to counsel for the state: 'I thought you had a written confession.'

Later during the trial a purported typewritten confession, in the form of questions and answers, deposed by a witness to have been voluntarily made and signed by Barker, was introduced in evidence by the state, over a general objection, which also implicated Fox in the crime and contained the suggestion that Fox had at one time served a sentence in the pentientiary for 'chicken stealing.'

This alleged confession was also read into the record, and then the following ensued in the presence of the jury:

'By Mr. Pulse: The defendants John Fox and Paul Fisher move that the testimony contained in this alleged confession of John Barker in so far as it refers to said defendants John Fox and Paul Fisher be stricken from the record and the jury instructed specifically to disregard it as to those two defendants.

'By the Court: That motion will be granted. It is another way of saying what I have said to you on two or three different occasions, that the confession, if you find one was made, and voluntarily made by the defendant John Barker, out of the presence of the other two defendants here on trial, cannot in any way or in any respect whatsoever effect [affect] the other two who were not parties to the confession itself. The defendants, so far as the defendants Fox and Fisher are concerned, I say that evidence so far as this confession is concerned will be entirely withdrawn from your consideration. It remains, however as to the defendant, Barker.

'By Mr. Pulse: Note an exception as to John Barker as to the ruling of the court.'

When the state rested its case, counsel for the defendants moved for a directed verdict on behalf of each of the defendants, which motion was overruled as to Barker and Fox, and, as to Fisher, was held in abeyance until the conclusion of all the evidence. The defendants thereupon rested without offering any evidence, and the motion for a directed verdict was renewed. This motion was sustained as to the defendant Fisher, and the jury instructed to return a verdict of 'not guilty' as to him, but was overruled as to Barker and Fox.

In the general charge to the jury the court stated:

'On several different occasions during this trial I have had occasion to say to you something about an alleged confession made by the defendant Barker and at each time I said to you that that confession could not in any way effect [affect] anybody but Barker. It can in no wise be taken against his codefendant Fix.'

Both Barker and Fox were found guilty as charged in the indictment, and sentenced.

Fox took an appeal on questions of law to the Court of Appeals, which court reversed the judgment below and remanded the cause for a new trial.

In its opinion, the Court of Appeals said:

'The question for this court to determine, therefore, is whether it was prejudicial error to permit the submission of Barker's admissions and confessions even though the jury be instructed repeatedly that such testimony could not be used against Fox.

'A person charged with the commission of a crime in this state is entitled to a fair trial by jury and such a trial cannot be had when improper evidence prejudicial in character is admitted. * * * It is not likely the jury did erase this testimony from its mind in its deliberations. It will be noted in Barker's confession that reference is made to the previous incarceration of Fox in the Ohio Penitentiary. Fox did not testify in his own behalf and presented no witnesses to testify with respect to his character. All testimony with reference to his character, since that was not in issue in the case, was prejudicial to a fair trial.'

A motion for leave to appeal having been allowed, the case is now before the Supreme Court for decision on its merits.

David P. Tarbell, Pros. Atty., and Fite & Houston, all of Georgetown, for the State.

Pulse & Pulse, of Lynchburg, for appellee.

ZIMMERMAN Judge.

Section 13442-11, General Code of Ohio, provides: 'When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, order that one or more of said defendants be tried separately.'

This is a valid enactment under the decisions in the cases of Beazell v. State of Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216; Beazell v. State, 111 Ohio St. 838, 146 N.E. 316; and Chatfield v. State, 111 Ohio St. 839, 146 N.E. 315.

Under Section 13444-1, General Code, the rules of evidence in civil cases, in so far as applicable, shall govern all criminal causes. Counsel for the defendants in the instant case could have inspected the written confession of their client Barker in the hands of the prosecuting attorney before trial by invoking the provisions of Section 11551 et seq., General Code, if necessary, and could have predicated an application for a separate trial of their client Fox on the basis of the contents of such confession. This was not done, so we have no issue relating to an abuse of discretion on the part of the trial court in refusing to order separate trials. 70 A.L.R., annotation beginning on page 1185.

Section 13444-1, General Code, became effective in July of 1929, more than four years after the decision in State v. Yeoman, 112 Ohio St. 214, 217, 147 N.E. 3.

By the plain terms of Section 13442-11, General Code, above quoted, a joint trial of the three defendants, Barker, Fisher, and Fox, was required, no good or sufficient cause for separate trials having been advanced by counsel in making application therefor.

In a joint trial of two or more defendants, it stands to reason that evidence will frequently be offered by the state which is competent as to one defendant but incompetent as to the others. When such evidence takes the form of a confession to the crime charged, by one of the defendants implicating one or more of his codefendants as a part thereof, should such confession be excluded, or should it be admitted under instructions to the jury limiting its application and effect solely to the maker?

This is the question before us and, so far as we can ascertain, it has never been directly decided by the courts of Ohio. The case appearing to be most nearly in point is that of State v. Knapp, 70 Ohio St. 380, 71 N.E. 705, 1 Ann.Cas. 819, the fourth paragraph of the...