State v. Fox

• Court: United States State Supreme Court of Ohio
• Citation: 133 Ohio St. 154,12 N.E.2d 413
• Docket Number: No. 26722.,26722.
• Parties: STATE v. FOX.
• Decision Date: 12 January 1938

133 Ohio St. 154
12 N.E.2d 413

STATE
v.
FOX.

No. 26722.

Supreme Court of Ohio.

Jan. 12, 1938.

Appeal from Court of Appeals, Brown County.

Walter Fox was convicted of burglary and larceny, and he appealed to the Court of Appeals, which reversed the judgment and remanded the cause for new trial, and the State appealed to the Supreme Court.—[Editorial Statement.]

Judgment of the Court of Appeals reversed, and judgment of the court of common pleas affirmed.

[12 N.E.2d 414]

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.

[12 N.E.2d 415]

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...