State v. Grisafulli
| Decision Date | 23 February 1939 |
| Docket Number | 27187. |
| Citation | 135 Ohio St. 87,19 N.E.2d 645 |
| Parties | STATE v. GRISAFULLI. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Section 12223-7, General Code, providing that an appeal to the Supreme Court must be perfected within twenty days, is without application to felony cases.
2. By virtue of Section 10, Article I of the Constitution, and Section 13442-10, General Code, it is the right and privilege of a defendant to be present when a jury, during its deliberations on a verdict in a felony case returns to the courtroom for further instructions from the trial judge as to the law, where accused is affected by such instructions. The giving of such instructions during the absence of the accused, without his knowledge and while he is involuntarily confined in jail, constitutes prejudicial error. Jones v. State, 26 Ohio St. 208, approved and followed.
The appellant herein, Joe Grisafulli, was tried jointly with two others in the Court of Common Pleas of Cuyahoga county near the beginning of the year 1938, for the capital offense of murder in the first degree. The crime charged against the three defendants involved the killing of a special policeman on April 14, 1937, while they were engaged in the perpetration of a robbery.
After the general charge of the court and during its deliberations on a verdict, the jury indicated a desire for further instructions.
When the jury returned to the courtroom, the foreman asked whether the sentence that might be imposed upon one of the defendants would take precedence over the sentence previously imposed upon him.
From the bill of exceptions in narrative form allowed and signed by the trial judge, it appears that in testimony presented to the jury it was developed that all three defendants had been previously convicted of crime. Grisafulli had been sentenced April 25, 1934, and sentence suspended for two years. The other two defendants had been paroled from the Ohio State Reformatory on March 26, 1937, and were charged with robbery in May of 1937. Both were sent to the state penitentiary in the summer of 1937, and at the time of the instant trial each had a part of two terms to serve. Grisafulli had no time to serve.
Before undertaking to instruct the jury further the trial judge conferred with representatives of the prosecuting attorney and with counsel for the three defendants. The latter waived the right of their clients to be present and agreed that the judge might instruct the jury in the absence of the defendants, who were then involuntarily confined in the county jail and were not consulted in the matter.
Thereupon, the judge informed the jury in substance that it might find the defendants guilty of murder in the first degree, without a recommendation of mercy, which carried a penalty of death in the electric chair; that it might find them guilty of murder in the first degree, with a recommendation of mercy, which meant life imprisonment, or it might acquit.
The jury then resumed its deliberations and shortly returned a verdict of murder in the first degree, with a recommendation of mercy, against all three defendants. They were later sentenced, after their respective motions for a new trial had been overruled.
Grisafulli alone appealed to the Court of Appeals, urging before such tribunal that his constitutional and statutory rights had been violated because of his enforced absence from the courtroom during the additional instructions, but the appellate court affirmed the judgment below, without opinion.
A motion for leave to appeal and an appeal as of right were then filed in the Supreme Court. On October 13, 1938, the motion for leave to appeal was allowed, and a motion by the state to dismiss the appeal as of right was overruled.
Opposing the motion for leave to appeal and supporting its motion to dismiss the appeal as of right, the state argued that since neither the notice of the appeal filed as of right nor the notice of the motion for leave to appeal had been filed in the Court of Appeals within twenty days from the date on which that court had entered its judgment affirming the judgment of the Court of Common Pleas, the Supreme Court was without jurisdiction of the cause under the provisions of Section 12223-7, General Code.
D. J. Lombardo, of Cleveland, for appellant.
Frank T. Cullitan, Pros. Atty., and Neil W. McGill, both of Cleveland, for appellee.
In allowing the appellant's motion for leave to appeal and in overruling the motion of the state to dismiss the appeal as of right, this court reached the conclusion that Section 1223-7, General Code, does not apply to felony cases, and is still of the same opinion. Section 13459-7, General Code, a part of the Code of Criminal Procedure, is controlling.
The appellant, having raised and argued in the Court of Appeals the constitutional question embracing his fundamental right to be present in person when additional instructions were given by the trial judge to the jury, is entitled to present that question to this court on appeal. State v. Hensley, 75 Ohio St. 255, 266, 79 N.E. 462, 464, 9 L.R.A.,N.S., 277, 116 Am.St.Rep. 734, 9 Ann.Cas. 108; Hoffman v. Staley, 92 Ohio St. 505, 112 N.E. 1084; Board of Commissioners of Mercer County v. Deitsch, 94 Ohio St. 1, 6, 113 N.E. 745, 746; Cuthbertson v. State, 106 Ohio St. 658, 140 N.E. 941; 2 Ohio Jurisprudence 528, Section 473; 12 Ohio Jurisprudence 755, Section 742; 5 Corpus Juris Secundum, Appeal and Error, 1242, § 1808.
Section 10, Article I of the Ohio Constitution, a part of the Bill of Rights, provides substantially that in any trial for a felony, an accused shall be allowed to appear and defend in person and with counsel. And Section 13442-10, General Code, states in effect that no person indicted for a felony shall be tried if he is not personally present, unless he escape or forfeit his recognizance after the jury is sworn.
In the opinion in the case of Thomas, Warden v. Mills, 117 Ohio St. 114, 119, 157 N.E. 488, 489, 54 A.L.R. 1220, 1222, it is said:
'In its strict definition, the word 'trial' in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready, down to and including the rendition of the verdict * * *.'
Based upon Section 11, Article VIII of the Constitution of 1802, providing 'that in all criminal prosecutions the accused hath a right to be heard by himself and his counsel, * * *' Chief Justice Hitchcock, in he case of Rose v. State, 20 Ohio 31, 33, used this significant language:
'We conceive it to be the right of an accused person to be present during the trial of his case, and at the return of the verdict, and we think that when deprived of these privileges by being imprisoned in a jail, or in any other improper manner, the verdict returned against him should not be followed by judgment or sentence of the court, but a new trial should be ordered if requested.'
A question very similar to the one presented by the instant case was before this court in Jones v. State, 26 Ohio St. 208. The per curiam opinion is short and reads:
'We are unanimously of opinion, that on the trial of a felony it is error to proceed, at any stage of the trial, during the enforced absence of the accused, save only in the matter of the secret deliberations of the jury, and perhaps in the hearing of motions after verdict and before judgment.
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