State v. Good

• Decision Date: 23 February 1960
• Parties: , 83 Ohio Law Abs. 65, 11 O.O.2d 459 STATE of Ohio, Plaintiff-Appellee, v. Ronald L. GOOD, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 415

110 Ohio App. 415

165 N.E.2d 28, 83 Ohio Law Abs. 65, 11 O.O.2d 459

STATE of Ohio, Plaintiff-Appellee, v. Ronald L. GOOD, Defendant-Appellant.

Court of Appeals of Ohio, Franklin County.

Feb. 23, 1960.

Earl W. Allison, Pros. Atty., Albert G. Giles, Asst. Pros. Atty., Columbus, for plaintiff-appellee.

George E. Tyack, Irving M. Gertner, Columbus, for defendant-appellant.

SKEEL, Judge.

This appeal comes to this court on questions of law from a judgment of guilty upon the verdict of a jury in the Court of Common Pleas of Franklin County. The defendant was charged on eight counts of an indictment returned by the Grand Jury of Franklin County. Four of the counts charged illegal possession for sale of certain narcotics and four counts charged the illegal sale of narcotics. All of the counts of the indictment alleged the acts committed to be in violation of Revised Code, § 3719.20.

At the beginning of the trial, the State dismissed counts one and two and the jury found the defendant not guilty as to counts seven and eight. Count No. 3 charged possession for sale of a narcotic drug, to-wit: marijuana, on February 8, 1958. Count No. 4 charged the sale of such narcotic drug on February 8, 1958. Count No. 5 charged possession for sale of a certain narcotic, to-wit: marijuana on February 14, 1958, and Count No. 6 charged the sale of a narcotic drug on February 14, 1958.

The errors claimed by the defendant are:

'1. That the defendant was deprived of a fair trial.

'2. The court erred in the admission of certain exhibits over the objection of the defendant which exhibits were prejudicial to the rights of the defendant.

'3. That the court erred in permitting certain evidence and testimony to be admitted, which evidence and testimony were prejudicial to the rights of the defendant.

'4. That the court erred in not giving the special charges and instructions to the jury, as requested by the defendant.

'5. That the court erred in failing to include in its general charge to the jury certain instructions as requested by the defendant.

'6. That the court erred in refusing to sustain the defendant's challenge for cause of the panel of jurors called to hear the matter.

'7. That the court erred in refusing to dismiss the case upon motion of the defendant at the conclusion of the State's case.

'8. That the court erred in failing to dismiss the case upon motion of the defendant at the conclusion of all of the testimony and evidence.

'9. Other errors apparent on the face of the record which are prejudicial to the rights of the defendant.'

The first claim of error is overruled because there is nothing in the record to support such claim. The defendant's brief makes certain charges about the conduct of the trial but the record is completely silent on the matters involved.

The second claim of error has to do with markings on paper envelopes admitted as exhibits on which one of the State's witnesses had made identification markings setting out the time and place and person (the defendant) from whom they were received. This claim seems inconsequential when the charge of the court referring to the exhibits is considered. It reads:

'I think the only caution I need to make in this matter is that certain writing on some of these exhibits which pertain to the elements of these charges. Those writings should not be considered in themselves as evidence or as proof of the establishment of the elements that I have referred to that are necessary for you to find to render your verdict in this case. But, the exhibits themselves and the contents of the exhibits are for you to consider under the instructions of the court, as evidence, together with the testimony which you have heard from the witness stand in this court.'

Whatever error was committed in not removing the writing from the exhibits was rendered unimportant by the charge of the court which eliminated any possible prejudice. It is also claimed that error intervened by the receipt into evidence of certain photographs that showed police surveillance of the defendant while dealing with Williams at a time during a period between the dates of the several indictments. It happened that on this occasion the product sold to the police informer, while the police listened in, though represented to be marijuana, was sleeping tablets. This occurrence was the subject of testimony presented by the informer and also the defendant. If this testimony were considered by the jury as showing the defendant attempting to avoid the informer's request to get him marijuana (which was inferentially claimed) then this exhibit would benefit the defendant. However, if considered by the jury as showing the defendant's wilful deception of the police informer in one of the several transactions presented by evidence during the interval of time between the several indictments, then the State was entitled to this evidence. This claim of error is overruled.

The third claim of error deals with evidence of the arrests and conviction of the defendant brought upon the record during his cross-examination. The defendant does not clearly disclose the places in the record to which he refers. It appears from a reading of this part of the record that the defendant was questioned about statements made to the police about his arrests and his activity involving him in narcotic violations after his arrest for possession of a hypodermic needle in 1953. He admitted the arrests and that he was asked some questions concerning his activities in the sale of narcotics. He denied making the statements, about sales to certain named persons. After he had denied categorically each question read from a stenographic report, an objection was interposed. The objection was then too late. The questions had been asked for the purposes of testing the credibility of the defendant. In rebuttal competent evidence was received to the effect that such statements were made so that the basis for the examination was then properly laid. The third assignment of error is, therefore, overruled.

The fourth assignment of error was based on the refusal of the court to give two special instructions presented in writing for presentation to the jury before argument. These requests were as follows:

'1. I charge you that if you find from the evidence that there was a sale or a possession for sale of a narcotic and you find that the criminal intent to violate the law as to the possession for sale or sale, if there be such, originated in the mind of Lloyd Williams or the prosecuting authority and the accused was lured into the commission of an offense in order to prosecute him therefor, you shall return a verdict of not guilty.'

'2. I charge you that if you find that the defendant was coerced or urged on by Lloyd Williams or the prosecuting authority to commit a crime and you find that the circumstances of the urging and/or coercion are strong enough to shift the origination of the crime from the mind of the defendant to that of the agent, Williams, you shall return a verdict of not guilty.'

In the case of State v. Barron, 170 Ohio St. 267, 164 N.E.2d 409, the Supreme Court held in the syllabus:

'Under Section 2945.10(E), Revised Code, it is not mandatory upon a trial court to give any instructions to the jury in a criminal case before argument, but, if requested special instructions, reduced to writing, are correct, pertinent and timely presented, they must be included, at least in substance, in the general charge.'

Request number two (on the subject of coercion) is clearly not a correct statement of the law. It should not have been given at any time unless there was evidence to support all the necessary elements of a correct statement of the law dealing with such defense. The court was not bound to give the substance of an incorrect request to charge to the jury in its general charge. Felsman v. State, 45 Ohio App. 428, 187 N.E. 201. Also, State v. Barron, supra.

The defense of duress is defined in American Law Reports Annotated, 40 A.L.R.2d 910, as follows:

'It has been stated generally that in order to constitute a defense to a criminal charge other than taking the life of an innocent person, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done.'

The force which is claimed to have compelled criminal conduct against the will of the actor must be immediate and continuous and threaten grave danger to his person during all of the time the act is being committed. That is, it must be a dangerous force threatened 'in praesenti'. It must be a force threatening great bodily harm that remains constant in controlling the will of the unwilling participant while the act is being performed and from which he cannot then withdraw in safety. Fear of future harm cannot be the basis of such a defense.

In the instant case, the acts which constituted the crimes for which the defendant was indicted took place over a period of more than two weeks during which time the defendant was, for the most part, completely free from any possible domination by Williams. During this whole period, the defendant could have remained free from any possible domination by not joining with Williams or by avoiding him when they met in the saloon or poolroom. Each time the defendant joined Williams, he did so of his own free will with full knowledge of what the purpose of Williams' requests would be. There is not a bit of evidence in the record upon which the court could be required to give a charge on duress.

Whether the court should have given the charge (No. 1) on entrapment requires an examination of the testimony to determine whether there is any evidence whatever that might, when considered in its most favorable light in support of defendant's claims, warrant the giving of an instruction by the court on the defense of entrapment.

The charge as requested,...