State v. Orth

• Citation: 153 N.E.2d 394,106 Ohio App. 35
• Parties: , 6 O.O.2d 300 The STATE of Ohio, Appellee, v. ORTH, Appellant.
• Decision Date: 26 November 1957
• Court: United States Court of Appeals (Ohio)

Page 35

106 Ohio App. 35

153 N.E.2d 394, 6 O.O.2d 300

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

Court of Appeals of Ohio, Allen County.

Nov. 26, 1957.

Anthony J. Bowers, Pros. Atty., Lima, for appellee.

James C. Blair, Lima, for appellant.

MIDDLETON, Presiding Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas.

The record discloses that the grand jury of Allen County, Ohio, in April 1956, indicted the defendant for the murder of John Mooney while in the perpetration of a robbery. The defendant entered a plea of not guilty, and upon trial his only defense was an alibi. The jury returned a verdict of not guilty, and the defendant was ordered discharged. Subsequently, the defendant was placed on trial on an indictment returned by the same grand jury charging the defendant with armed robbery. His plea to this indictment was not guilty. Upon trial, the defendant was found guilty and, on motion, was granted a new trial. Upon retrial, the defendant filed a motion to allow him to withdraw his plea of not guilty, for the purpose of entering a plea of former jeopardy and other defenses allowed by law. This motion the court overruled. The defendant then filed a motion for an order permitting him to enter the defense of res judicata in addition to his plea of not guilty and tendered therewith what is designated as 'defense of res judicata.' This motion was also overruled by the court.

The trial proceeded on defendant's plea of not guilty. The jury returned a verdict of guilty, and the defendant was sentenced to the Ohio Penitentiary. From that judgment the defendant prosecutes his appeal.

The defendant assigns as error, the following:

1. For error of law in overruling the defendant's motion for leave to plead the defense of res judicata and in failing to dismiss the indictment herein on the grounds that the doctrine of res judicata precludes retrial of the issue of the defendant's presence at the scene of the crime.

2. For errors of law occurring at the trial in the admission of evidence over the objection of the defendant.

3. For error of law in overruling defendant's motion at the close of the state's case to dismiss the indictment and to discharge the jury for the reason that the state had not proven a prima facie case, and for other errors manifest on the face of the record.

The record reveals that the indictment for murder and the indictment for armed robbery grew out of the same transaction which occurred at the G & G Cafe in Lima, Ohio, on December 10, 1954.

The basic question presented by the first assignment of error is whether the defendant should have been permitted by the court to enter the defense of res judicata in addition to his plea of not guilty.

Section 2943.03, Revised Code, provides:

'Pleas to an indictment or information are:

'(A) Guilty;

'(B) Not guilty;

'(C) A former judgment of conviction or acquittal of the offense '(D) Once in jeopardy;

'(E) Not guilty by reason of insanity.

'A defendant who does not plead guilty may enter one or more of the other pleas. * * *. The court may, for good cause shown, allow a change of plea at any time before the commencement of the trial.'

Section 10, Article I of the Constitution of the state of Ohio, provides that:

'No person shall be twice put in jeopardy for the same offense.'

Article V, Amendments, U.S. Constitution, provides:

' * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *'

The constitutional guaranties apply only to being placed in jeopardy more than once for the same offense.

As stated in the opinion in State v. Rose, 89 Ohio St. 383, at page 386, 106 N.E. 50, 51, L.R.A.1915A, 256, 'the words 'same offense' mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation.'

The defendant in the case at bar, after his motion for leave to interpose the defense of once in jeopardy was overruled, abandoned this defense and does not now claim former jeopardy. However, the same result is sought by interposing the defense of res judicata, that the verdict of not guilty in the murder trial was a former acquittal and estopped the state from trial of the defendant in the instant case on the charge of armed robbery.

Upon the filing of his motion for leave to enter the defense of res judicata, submitting to the court his defense of res judicata setting forth the facts he claims in support of his motion, the question presented was a question of law for the court. No additional facts than those submitted by the defendant were needed or required by the court in ruling on the motion.

It is the claim of the defendant that the only issue for the jury to determine in the robbery trial was the same issue of fact that was decided by the jury in the murder trial, to wit, the alibi of the defendant; that the verdict of not guilty in the murder trial was a former acquittal; and that the doctrine of res judicata applies.

There is nothing in the record to support defendant's claim, which claim is strongly disputed by the state, that in the murder trial the only issue was the issue of alibi. The issue of alibi was only one of the issues involved. There were many others.

The record is silent as to the issues upon which the murder case was tried. However, the nature of the charge involved a number of essential elements constituting the crime of murder while in the perpetration of a robbery, which the state was required to prove beyond a reasonable doubt. Failure upon the part of the state to prove any one of the essential elements required a verdict of acquittal.

Failure of the defendant to deny or dispute any of the issues involved would not relieve the state from the necessity to prove all the essential elements constituting the crime, beyond a reasonable doubt. This truth was recognized by defendant's counsel when, in his opening statement in the case at bar, he stated:

'Under our plea of not guilty the prosecution has to prove each and every element of their case by evidence beyond a reasonable doubt.'

The plea of former judgment of conviction or acquittal of the offense and the plea of once in jeopardy differ only in the extent and character of the elements constituting the defense.

'As a general rule, a person is in legal jeopardy when he is put on trial, after a proper arraignment and plea, before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a legally constituted jury has been charged with his deliverance.' 15 Ohio Jurisprudence (2d), 444, Section 261.

The elements constituting a plea of former judgment of conviction or acquittal of the offense will also support a plea of once in jeopardy. However, a plea of former judgment of conviction or acquittal of the offense is limited to a final judgment entered upon the merits. The former judgment of conviction or acquittal must be for the same offense as is the case where the defense is 'once in jeopardy.'

As stated in the opinion of the Court of Appeals in the case of Duvall v. State, 18 Ohio App. 471, at page 475 '* * * In a criminal proceeding there is but one issue, and that is the guilt or innocence of the accused. There are various essential elements constituting the crime, each of which the state is bound to prove beyond a reasonable doubt, and failure upon the part of the state to so establish any one of the essential elements of the crime requires a judgment of acquittal. It is quite evident that a judgment of former conviction necessarily involves a finding in favor of the state upon each of the essential elements of the crime, whereas a verdict and judgment of acquittal may result from a failure of the state to satisfy the jury beyond a reasonable doubt as to any one of those essential elements. The doctrine of res judicata is not to be applied to the determination of every controverted fact that may be presented in the trial of a case. A plea of res judicata as to such controverted facts cannot be substituted for a plea of former jeopardy. * * *

'* * *

'The doctrine of res judicata is applicable only where there has been a definite adjudication of the matter in controversy between the parties. In a criminal case, where the defendant is relying on the defense of alibi, it is not incumbent upon him to prove such defense by a preponderance of the evidence, and the jury is therefore charged by the court that the defendant is not required to prove the defense of alibi by a preponderance of the evidence, but that it is sufficient if his evidence upon that subject, taken in connection with all the other evidence in the case, raises a reasonable doubt in the mind of the jury of the guilt of the defendant. When the evidence of the defendant need only be sufficient to raise a reasonable doubt in the mind of the jury of the guilt of the defendant in order to make it the duty of the jury to render a verdict of acquittal, a verdict of acquittal is far from being an affirmative finding in favor of the defendant upon his defense of alibi. * * *'

Regardless of what the holdings may be in other jurisdictions, the question here involved has been clearly and definitely determined by the Supreme Court of Ohio in the case of Duvall v. State, 111 Ohio St. 657, 146 N.E. 90. The facts in that case are, in the opinion of this court, on all fours with the case at bar.

In the Duvall case, Samuel Duvall was indicted for murder in the first degree while attempting to perpetrate a robbery upon one John C. Herbruck. He entered a plea of not guilty and was put on trial, his defense being that of alibi. The jury returned a verdict of not guilty. Thereafter, the grand jury returned an indictment against the defendant for the offense of robbery, charging him with robbing one John C. Herbruck, the indictment being based upon the same transaction embraced in the charge of...