State v. Halleck

• Decision Date: 03 September 1970
• Citation: 24 Ohio App.2d 74,263 N.E.2d 917
• Parties: , 53 O.O.2d 195 The STATE of Ohio, Appellee, v. HALLECK, Appellant.
• Court: Ohio Court of Appeals

Page 74

24 Ohio App.2d 74

263 N.E.2d 917, 53 O.O.2d 195

The STATE of Ohio, Appellee, v. HALLECK, Appellant.

Court of Appeals of Ohio, Fourth District, Pickaway County.

Sept. 3, 1970.

Syllabus by the Court

1. Initially, an application for a bill of particulars is addressed to the sound discretion of the trial court. Where an indictment informs the accused of the nature of the offense with which he is charged, he is not entitled to a bill of particulars.

2. Where several persons combine to commit an unlawful act, e. g., escape from jail, each is criminally responsible for the acts of the others committed while perpetrating such act.

3. A county seat municipal police officer who is killed by a county jail inmate in the office of the sheriff, where such police officer had gone in response to a call to the municipal police department that a jail break was in progress, while such inmate and other inmates are attempting to escape therefrom, is killed in the performance of his duties as a police officer of such municipality.

4. Only those relationships specifically named in R.C. 2317.02 give rise to privileged communications and acts. A parolee and his parole officer do not occupy a confidential relationship.

William D. Kennedy, Ironton, for appellee.

Meyers & Meyers, Ironton, for appellant.

GRAY, Presiding Judge.

This cause is in this court on appeal from a judgment of the Court of Common Pleas of Pickaway County on a verdict of a jury finding defendant guilty of first degree murder. Mercy was recommended. The cause was tried in Pickaway County on a motion for change of venue from Lawrence County where the murder is alleged to have taken place. Defendant, feeling aggrieved by this result of his trial, filed his notice of appeal on questions of law and assigns the following errors:

'Assignment of Error I-The court erred in refusing to grant motion of defendant for an amended or supplemental bill of particulars filed April 14, 1967. Same being deprivation of defendant's rights.

'Assignment of Error II-The court erred in refusing to sustain demurrer of defendant to the alleged amended bill of particulars filed April 14, 1967. Same being in deprivation of defendant's rights.

'Assignment of Error III-The court erred in refusing defendant's motion to dismiss made at the conclusion of evidence for the state.

'Assignment of Error IV-The court erred in denying defendant's motion to dismiss made by defendant at the close of all the evidence.

'Assignment of Error V-The court erred in denying defendant's motion for a directed verdict made at the close of all the evidence.

'Assignment of Error VI-Irregularity in the proceedings of the court in that said court:

'(a) Wrongfully excluded evidence presented by the defendant.

'(b) Wrongfully excluded evidence presented by the defendant.

'Issue I (Assignment VI)

'Should a parole officer be permitted to testify over objections of the defendant, to statements made by parolee while said parolee was in custody in county jail charged with violation of parole, the trial of said parolee for an act allegedly committed several weeks later?

'Assignment of Error VII-That the verdict is not sustained by sufficient evidence and is contrary to law.

'Assignment of Error VIII-The verdict in this case is against the weight of the evidence.

'Assignment IX-The court erred in including in its charge to the jury a charge with reference to aiding and abetting.'

We will now address ourselves to assignments of error numbers 1 and 2. A bill of particulars and an amended bill of particulars were filed. Outside the fact that the amended bill stated that Eugene Markel, Chief of Police of the city of Ironton, was killed by gunfire, the bill gives no more facts than those contained in the indictment.

In the first instance, an application for a bill of particulars is addressed to the sound discretion of the court. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. The purpose of a bill of particulars is to inform a defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to prevent surprise, or to plead his acquittal or conviction in bar of another prosecution for the same offense. However, it is not the function of a bill of particulars to enable a defendant to obtain access to evidentiary matters. Stumbo v. United States, 6 Cir., 90 F.2d 828, 833, certiorari denied, 302 U.S. 755, 58 S.Ct. 282, 82 L.Ed. 584. Nor will such a bill be ordered where the information sought is within the knowledge of the defendant or is information which he has equal opportunity with the state of Ohio to discover.

The state's case was based upon and built around the plotting of the jail break and the activities of the four prisoners in furtherance thereof in the office of the Sheriff of Lawrence County. Defendant admits he was in the Sheriff's office almost to the moment Chief Markel was killed. It is established in the record by reliable, substantial, and probative evidence that defendant was present in the Sheriff's office when Markel was killed and that defendant fired the shot that killed him. Therefore, we can no conceive of any fact which the state, by way of a bill of particulars or by way of making the allegations of the indictment definite and certain, could have furnished defendant that was not already locked in his own breast. See State v. Anderson, 10 Wash.2d 167, 180, 116 P.2d 346.

Defendant is entitled to a bill of particulars only when the particular facts of the case warrant.

In Foutty v. Maxwell, 174 Ohio St. 35, 38, 186 N.E.2d 623, 626, the court said:

'The basic purpose of the bill of particulars is not to reveal the state's evidence but simply to state specifically the nature of the offense charged. * * *'

In State v. DeRighter, 145 Ohio St. 552, at page 556, 62 N.E.2d 332, at page 335, in the course of the opinion, it is said:

'Hence, it is clear that the purpose of a bill of particulars is not to disclose the state's evidence but simply to state specifically the nature of the offense charged. When this is stated in the indictment the accused is entitled to no bill of particulars * * *.'

In Boynton v. Sacks, 173 Ohio St. 526, 529, 184 N.E.2d 377, 380, the court said:

'The purpose of an indictment is to inform the accused of the nature of the offense with which he is charged. Holt v. State, 107 Ohio St. 307, 140 N.E. 349. If the indictment does this then the court does not abuse its discretion in failing to order a bill of particulars. With these rules in mind we will now consider the counts in the indictment.

'* * * Clearly, this court informed the petitioner of the specific nature of the offense charged, and failure to furnish him with a bill of particulars would not constitute prejudicial error even on an appeal.'

In the light of the above authority we cannot say that it affirmatively appears from the record that the accused was prejudiced by error or prevented from having a fair trial. State v. Petro, 148 Ohio St. 473, 76 N.E.2d 355.

The court will treat assignments of error Nos. 3, 4, 5, 7 and 8 together. Eugene Markel, Chief of Police of the city of Ironton, was shot and killed in the office of the Sheriff of Lawrence County, Ohio, on December 2, 1966. Defendant was charged with the murder of the police chief under R.C. 2901.04 which states in part as follows:

'No person shall willfully kill a * * * policeman * * * while such * * * policeman * * * is in the discharge of his duties.'

Four prisoners in the jail were involved. There were three deputy sheriffs involved. The prisoners were Bailey, Browning, Halleck and Jenkins. The deputies were Chapman, Henry, Mullins. By a ruse Bailey obtained the service revolver of Chapman. Bailey, while holding Chapman's gun, ordered Chapman to open the jail doors. As Chapman opened the door he saw that Halleck, Jenkins and Browning were standing at the jail door waiting to come out. Chapman announced that it was a jail break and they wanted everyone out.

At that time a Coal Grove police officer by the name of Sites came into the Sheriff's office. While Bailey had him covered with his gun, Halleck took a nickel plated revolver from a holster on Sites.

Jenkins picked up a revolver that Mullins had been forced by Bailey to drop to the floor.

Browning had Giles' gun. Bailey had Chapman's gun. Jenkins had Mullins' gun. Defendant had Sites' gun. All the guns were in the hands of the prisoners to aid them in their common purpose to escape. None of the prisoners tried to thwart each other's activities to escape from the jail. They disarmed the police and sheriff's deputies but did not disarm each other or attempt to aid the peace officers to foil the jail break.

Chief Markel came to the Sheriff's office in response to a telephone call. When the Chief arrived at the Sheriff's office he first encountered Jenkins. Jenkins was shot and slumped to the floor.

Shortly thereafter, Markel was shot and killed. Defendant was charged with that murder. No witness had a full view of the person who did the shooting. Officer Mullins testified that he saw about 6 or 8 inches of an arm and hand extend beyond a doorway. In that hand was a shiny pistol. The person was wearing a white shirt with long sleeves. Mullins had seen defendant remove this gun from the person of Officer Sites shortly before that time. It was established by the evidence that the Sites' gun was fired twice and that that gun was the one that shot the bullet which killed Markel. There was evidence...