State v. Hill

• Decision Date: 20 December 1967
• Docket Number: No. 40740,40740
• Citation: State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394, 41 O.O.2d 369 (Ohio 1967)
• Parties: , 41 O.O.2d 369 The STATE of Ohio, Appellee, v. HILL, Appellant.
• Court: Ohio Supreme Court

Page 88

12 Ohio St.2d 88

232 N.E.2d 394, 41 O.O.2d 369

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

No. 40740.

Supreme Court of Ohio.

Dec. 20, 1967.

Syllabus by the Court

1. The allowance of overruling under Section 2945.50, Revised Code, of a motion to appoint a commissioner to take pretrial depositions in a criminal case rests within the sound discretion of the court, and, unless a plain abuse of that discretion is shown, no prejudicial error occurs.

2. In the trial of a defendant charged with murder in the first degree, the admission or exclusion of photographs of the murder victim taken at the scene of the murder rests within the sound discretion of the court, and, if there is no abuse of that discretion in the circumstances of the particular case, error may not be predicated on the admission of such photographs in evidence.

3. Failure of the prosecutor, pursuant to court order, to disclose to defendant the name and identity of a prospective state's witness at the trial will not operate to exclude such witness from testifying, where the witness appears and the defendant is given and takes the opportunity of crossexamining him.

4. In the trial of a defendant for murder in the first degree, failure of the court to charge on lesser included offenses is not error, where no evidence is introduced tending to show the commission of a lesser included offense.

Defendant, Thomas Walton Hill, in his twenties, the appellant herein, was indicted for first degree murder under Section 2901.01, Revised Code, and for armed robbery under Section 2901.13, Revised Code. He was tried in the Court of Common Pleas of Lorain County before the court and a jury and was represented at the trial by four attorneys. He attempted to establish an alibi in defense. A verdict of guilty on both counts was returned, with a recommendation of mercy on the first count. Thereupon, defendant was sentenced to life imprisonment in the Ohio Penitentiary.

An appeal to the Court of Appeals on questions of law resulted in an affirmance of the judgment below, all the judges concurring, and the cause is now in this court for review following the allowance of the motion for leave to appeal.

Paul J. Mikus, Pros. Atty., John B. Otero, Lorain, and John P. Gallagher, Elyria, for appellee.

Robert A. Dougherty, Avon Lake, for appellant.

ZIMMERMAN, Judge.

Late on the night of February 19, 1966, Raymond Pounds, standing behind a cash register counter of a food market in the city of Lorain, was shot in the head and killed by the close discharge of a shotgun fired by an individual who was there for the purpose of robbery and who was apprehended a short time later.

A clerk in the market at the time of the murder identified defendant as the one who fired the fatal blast, and a man on the outside of the market identified defendant as one who ran from the market immediately after the shooting. There was other corroborating evidence identifying the defendant with the crimes charged against him.

Four principal reasons are advanced as to why the judgment of the Court of Appeals should be reversed, and they will be stated and discussed in order.

First, the claim is made that the trial court committed reversible error in overruling defendant's motion to appoint a commissioner to take pretrial depositions under the provisions of Section 2945.50, Revised Code. Such motion was overruled for the stated reason 'that said witnesses will be available to testify at time of trial one week from date.'

It will be noted that this statute provides, inter alia, that, 'The court or a judge thereof may grant such commission.' The overruling of the motion violated no due process privision of the state or federal Constitutions and is largely a matter within judicial discretion. It seems apparent that counsel for defendant were aware generally of the testimony to be expected of the witnesses at the imminent trial, and that opportunity would then be given to thoroughly examine them. Reading between the lines, the thought suggests itself that the court may have concluded that the motion's objective was to conduct what is commonly termed a 'fishing expedition.' Moreover, there is no indication that the result of the trial would have been different had the depositions been taken. We find no substantial merit in defendant's first contention.

Second, it is urged that the trial court, upon objection, should have excluded from the evidence black and white photographs taken of decedent soon after his murder. Inspection of those photographs shows that they are not so gory or gruesome as to produce an inflammatory reaction by the jury against defendant, and they were introduced in connection with the testimony of the state's witnesses to explain and clarify certain aspects of that...