State v. Nevius

• Decision Date: 15 January 1947
• Docket Number: 30639.
• Citation: 147 Ohio St. 263,71 N.E.2d 258
• Parties: STATE v. NEVIUS.
• Court: Ohio Supreme Court

71 N.E.2d 258

147 Ohio St. 263

STATE v. NEVIUS.

No. 30639.

Supreme Court of Ohio

January 15, 1947

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Section 10 of Article I of the Constitution requires that an accused be tried by a jury of the county in which the offense is alleged to have been committed.

2. A grand jury may inquire of and present only such offenses as have been committed within the county for which such grand jury was impaneled and sworn. Section 13436-5, General Code.

3. A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.

4. A prosecution against a prosecuting attorney for accepting a bribe outside of his county must be in the county where the bribe was accepted. State v. Knight, 54 Ohio St. 330, 43 N.E. 281, approved and followed.

5. In a criminal prosecution the corpus delicti may be established by circumstantial evidence where the inference of the happening of the criminal act complained of is the only probable or natural explanation of the proven facts and circumstances.

6. The general rules of evidence are usually the same in civil and criminal cases. Section 13444-1, General Code.

7. Where in the trial of a prosecuting attorney for accepting a bribe from gamblers a prima facie showing is made of a conspiracy between such agmblers and the prosecuting attorney whereby the gamblers were permitted to conduct gambling free from molestation by such prosecuting attorney, the statement of a coconspirator in furtherance of the common design of such conspiracy, made in the absence of such prosecuting attorney, may be introduced in evidence.

8. It is not necessary that such conspiracy be one to commit the identical offense charged in the indictment, it being sufficient that the offense charged in the indictment be incidental to the conspiracy. Goins v. State, 46 Ohio St. 457, 21 N.E. 476; State v. DeRighter, 145 Ohio St. 552, 62 N.E.2d 332, approved and followed.

9. Where on the trial of a prosecuting attorney for accepting a bribe to influence him with respect to his official duty, a prima facie case is made of conspiracy between certain gamblers and such prosecuting attorney to permit gambling in violation of law and without molestation by such prosecuting attorney, it is not error for the trial court to permit one who prepared the income tax returns of such gamblers jointly indicted with the prosecuting attorney, to testify as to the contents of such income tax returns. Such testimony tends to show the extent and profits of the gambling enterprise protected by the conspiracy and the incentive and ability of the gambling coconspirators to pay for protection of their illegal enterprise. The large profits reaped through such conspiracy reflect as well upon the probability that bribery was an incident of such conspiracy.

10. Where counsel for the state in argument to the jury in a criminal case expresses his personal opinion of the guilt of the accused and no objection is made thereto, it is too late to raise the question for the first time in an appellate court. Where such court does not have before it the arguments to the jury of defendant and his counsel as well as the argument of which complaint is made for the first time in the Court of Appeals, such appellate court is not in position to say that it affirmatively appears from the record that the accused was prejudiced thereby or was prevented from having a fair trial. Section 13449-5, General Code.

Appeal from Court of Appeals, Clark County.

HART, J., dissenting in part.

Defendant Nevius, appellee herein, was the prosecuting attorney of Clark county. He was indicted by the Clark county grand jury jointly with Joseph Parisi and Ralph Schear, alias 'Cookie' Schear, for accepting bribes from Parisi and Schear who were the proprietors of a gambling house theretofore operated in Clark county near the Greene county line. Melvin Thomas was the manager of the gambling house and shared in its profits. Thomas was not indicted but was used by the state as a witness for the state. A severance was ordered and Nevius was tried alone.

The first, third and fifth counts in the indictment charged Parisi and Schear with giving the bribes, while the second, fourth and sixth counts in the indictment charged Nevius with accepting bribes. The second count charged Nevius with accepting an automobile of the value of $1,300; the fourth count charged him with accepting an automobile of the value of $1,437; and the sixth count in the indictment charged him with accepting large sums of money; all with the intent to influence him with respect to his official duty as the duly elected, qualified and acting prosecuting attorney of Clark county, Ohio. Nevius moved, at the close of the state's case, that the jury be instructed to return a verdict of not guilty on each the second, fourth and sixth counts in the indictment. This motion was overruled, renewed at the close of all the evidence and again overruled.

The jury returned its verdict finding Nevius guilty of bribery in the manner and form charged in the second, fourth and sixth counts of the indictment.

A motion for new trial was filed. A motion was also filed in arrest of judgment upon the ground that the offenses charged were not within the jurisdiction of the Court of Common Pleas of Clark county. Both of the foregoing motions were overruled and Nevius was sentenced to the Ohio Penitentiary for an indefinite period on each the second, fourth and sixth counts of the indictment, the sentences to run concurrently.

Appeal was taken to the Court of Appeals which court ordered Nevius discharged and dismissed on the second and sixth counts of the indictment and remanded the cause for new trial on the fourth count.

The journal entry of the Court of Appeals showing the reasons for reversal will be quoted from in the opinion below.

The case is in this court following the allowance of an application by the state of Ohio for leave to appeal.

Glenn E. Detling, Pros. Atty., of Springfield, Simon L. Leis, of Cincinnati, Homer C. Corry and Stewart L. Tatum, both of Springfield, for appellant.

Paul M. Herbert, of Columbus, Aaron J. Halloran and Frank L. Nevius, both of Springfield, for appellee.

TURNER Judge.

After a careful review of all the evidence, we affirm the judgment of the Court of Appeals in reversing the judgment of the trial court on the second count in the indictment for the reason that there was a failure of proof to support the judgment of the trial court.

We also affirm the judgment of the Court of Appeals in reversing the judgment of the trial court on the fourth count in the indictment. However, we reverse the judgment of the Court of Appeals in remanding the case to the trial court for a new trial on the fourth count for the reason that the evidence fails to show that the crime alleged occurred in Clark county where the indictment was returned and trial had. Therefore, defendant's motion to direct a verdict of not guilty on such fourth count, made at the close of the state's case and renewed at the conclusion of all of the evidence, should have been sustained.

In passing on such motion at the close of the state's case, the trial court said: 'There is no evidence where the car was delivered to Mr. Nevius, although the title seems to indicate he acquired it. I think a reasonable inference seems to be, in the absence of any evidence that he was in Dayton and acquired it there, that it was delivered to him at his home or in the city where he lives, because that is naturally where he would use it.'

We are of the opinion that such 'inference' is mere speculation. The burden was on the state to show that Nevius accepted the automobile in Clark county.

It does not follow from the absence of any evidence in the state's case that Nevius acquired the automobile in Dayton (Montgomery county) that he accepted such automobile in Clark county.

Under the trial court's stated understanding of the state's evidence that there was no evidence where the car was delivered, it was the duty of the trial court to sustain defendant's motion to direct a verdict and dismiss defendant on the fourth count in the indictment. We agree with the trial court that the state's case disclosed no evidence showing where Nevius accepted the alleged bribe. There was evidence that Nevius had been with Parisi in Dayton at different times. Dayton is but a few miles from Springfield.

When defendant's motion was renewed at the close of all the evidence, the only evidence in the record on the subject of the venue of the alleged offense was the testimony of Nevius that Parisi delivered the car to him at a garage in Dayton (Montgomery county) and that he (Nevius) drove it home from Dayton.

At the close of all the evidence, there was a failure of proof that Nevius had accepted the alleged bribe in Clark county. The state's witness Roush, who brought the car from Pennsylvania to Dayton, testified that he sold and delivered the automobile to Parisi in Dayton. Roush testified further that he had no dealing with Nevius and had never seen him until the trial.

Under such circumstances and with the defendant's testimony that he acquired the car from Parisi in Dayton, the trial court would have been warranted in committing Nevius to await a warrant for his arrest from Montgomery county upon the charge contained in the fourth count of the indictment.

Section 13442-6, General Code, provides:

'If on the trial of a criminal cause, it shall appear that the offense was committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for...