State v. Glaros

Decision Date30 March 1960
Docket NumberNo. 36138,36138
Parties, 11 O.O.2d 215 STATE of Ohio, Appellant, v. GLAROS, Appellee.
CourtOhio Supreme Court

Syllabus by the Court.

1. It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.

2. Where the trial court fails to comply with the requirement of Section 2945.27, Revised Code, that oaths or affirmations be administered to prospective jurors before their examination on voir dire, such failure will not entitle defendant to a new trial if defendant and his counsel could have called such failure to the trial court's attention in time to avoid it but neither defendant nor his counsel did so.

3. Where it does not appeal that any false answer was given by a juror on the voir dire examination, the mere failure of the trial court to have either oaths or affirmations administered to prospective jurors before such examination as required by Section 2945.27, Revised Code, cannot be held to have prejudiced a defendant or prevented him from having a fair trial, and a judgment of conviction should not be reversed because of such failure. (Section 2945.83, Revised Code, applied.)

Defendant was indicted under an indictment that stated in part that defendant 'did aid and abet * * * Tobin * * * in embezzling and converting to his own use the personal property of * * * the employer of * * * Tobin * * *, and without the assent of any owner * * * of said property, * * * [defendant] did aid and abet * * * Tobin * * * in the conversion and embezzlement of certain money of the value of * * * $56,231.21 * * * which * * * had come into the possession of * * * Tobin * * * by virtue of his employment * * *.'

So far as pertinent, Section 2907.34, Revised Code, reads:

'No * * * employee of a person * * * shall embezzle or convert to his own use, fraudulently take or make away with, or secrete with intent to embezzle or convert to his own use anything of value which comes into his possession by virtue of his * * * employment * * *.'

Section 1.17, Revised Code, reads:

'Any person who aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.'

Section 2945.27, Revised Code, reads:

'The judge of the trial court shall examine the prospective jurors under oath or upon affirmation as to their qualifications to serve as fair and impartial jurors, but he shall permit reasonable examination of such jurors by the prosecuting attorney and by the defendant or his counsel.' (Emphasis added.)

The emphasized portion of the foregoing statute was added thereto by an amendment that became effective September 9, 1957.

The record discloses that defendant's trial under the foregoing indictment commenced September 15, 1958; that the trial judge examined prospective jurors and permitted the prosecuting attorney and defendant's counsel to examine them but that no oath or affirmation was required of any juror before the jurors were so examined and no one at that time or prior to September 17 objected to or even mentioned the failure to require such oath or affirmation; and that, after the vior dire examination, the jury was duly sworn in accordance with Section 2945.28 Revised Code, * opening statements were made and 19 of the state's witnesses were examined. The record then indicates the following colloquy on the morning of the third day of the trial, during examination of the twentieth witness for the state and in the absence of the jury:

'The Court: This morning, a little while ago it occurred to me I had failed to put the prospective jurors under oath before they were examined on voir dire * * *.

'Now, I spoke to counsel for the defendant before this session and, for the sake of the record, I will now ask them whether on behalf of the defendant they are willing to waive this requirement if we go forward in the trial?

'Mr. Ambrose: In answer to the court's inquiry counsel for defendant state we cannot and will not attempt to waive the mandatory requirement of the law.

'The Court: All right. The record will show, of course, that at the time of the voir dire it was not called to the court's attention by counsel that the prospective jurors had not been put under oath before they were asked questions as to their qualifications to sit in this case. * * *

'I will now turn to Revised Code 2945.36, which provides for what causes a jury may be discharged, subsection (D) of that section is the only part of the section I want to call your attention to, and reading the statute with that section alone it says: The trial court may discharge a jury without prejudice to the prosecution 'by the consent of the prosecution attorney and the defendant.' And then it says: the reason for such discharge shall be entered on the journal.

'I am perfectly willing to follow that procedure, that is, to discharge the jury and try it to another jury, if counsel for the defendant will consent. So, for the record, I shall now ask whether the defendant will consent to that sort of procedure?

'Mr. Ambrose: No, with due courtesy to the court.

'The Court: In other words, you will not consent?

'Mr. Ambrose: That is correct. And let the record show, Mr. Reporter, the precise moment, Monday, September 15, that the jury was being inquired of counsel for the defendant did not realize at that moment that the statute was not being complied with. It was discussed by counsel for the defendant on Tuesday afternoon, September 16th.

* * *

* * *

'* * * And on Wednesday morning, this morning, it was discussed by the court and counsel for both sides; so that we didn't deliberately remain silent.'

Section 2945.36, Revised Code, reads:

'The trial court may discharge a jury without prejudice to the prosecution:

'(A) For the sickness or corruption of a juror or other accident or calamity;

'(B) Because there is no probability of such jurors agreeing;

'(C) If it appears after the jury has been sworn that one of the jurors is a witness in the case;

'(D) By the consent of the prosecuting attorney and the defendant.

'The reason for such discharge shall be entered on the journal.'

Thereafter the trial continued. The jury by its verdict found the defendant guilty of aiding Tobin in the embezzlement charged, and the trial court by its judgment sentenced defendant to imprisonment for not less than one nor more than ten years.

On appeal to the Court of Appeals, that judgment was reversed on the ground that the trial judge 'erred in failing to place the prospective jurors under oath as required by Ohio Revised Code Section 2945.27, and in failing to dismiss the jury when it came to the attention of the court.'

The cause is now before this court on appeal from the judgment of reversal of the Court of Appeals, pursuant to allowance of the state's motion for leave to appeal and after denial of defendant's motion for leave to appeal from that part of the judgment of the Court of Appeals that found that the indictment and bill of particulars were sufficient.

Thomas A. Beil, Pros. Atty., Youngstown, for appellant.

Russell G. Mock and William A. Ambrose, Youngstown, for appellee.

TAFT, Judge.

It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. 3 American Jurisprudence, 25 et seq., Section 246. That rule has frequently been applied by this court. Adams v. State, 25 Ohio St. 584; State v. McCoy, 88 Ohio St. 447, 103 N.E. 136; State v. Driscoll, 106 Ohio St. 33, 138 N.E. 376; Tari v. State, 117 Ohio St. 481, 159 N.E. 594, 57 A.L.R. 284; Rucker v. State, 119 Ohio St. 189, 162 N.E. 802; State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 385. See also Rhoades v. City of Cleveland, 157 Ohio St. 107, 105 N.E.2d 2.

Unquestionably, the trial judge should have avoided the error of failing to have an oath or affirmation administered to prospective jurors, as required by Section 2945.27, Revised Code, just as a trial judge should avoid all errors in the course of a trial. If counsel for the defendant had requested the trial judge to avoid that error and the trial judge had refused to do so, then clearly this defendant should be able to rely upon such error as a ground for reversal of his conviction. See State v. Smith, 123 Ohio St. 237, 174 N.E. 768. However, we do not believe that we should, without some good reason or unless required to do so by some applicable statute (see Patterson v. State, 96 Ohio St. 90, 104, 117 N.E. 169, L.R.A.1918A, 583), approve a practice which would enable counsel to place his client in a position where he could take advantage of a favorable verdict and, at the same time, avoid an unfavorable verdict merely because of an error of the trial judge that counsel made no effort to prevent when he could have made such effort and when such error could have been avoided. Such a practice would enable counsel to obtain for his client more than the one fair trial to which he is entitled. See Stewart v. State, 15 Ohio St. 155, 161.

If it should be contended that defendant's counsel's refusal to waive the requirements of Section 2945.27, Revised Code, amounted to an objection to the failure of the trial judge to administer oaths or affirmations to prospective jurors before their examination, it is obvious that that objection on the third day of trial and long after completion of the voir dire examination was too late. Certainly, defendant's counsel's lack of knowledge of the requirements of Section 2945.27, Revised Code, when the trial judge could have been requested to comply therewith in time to do so,...

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