State v. Petro
| Decision Date | 26 November 1947 |
| Docket Number | 31097. |
| Citation | 76 N.E.2d 355,148 Ohio St. 473 |
| Parties | STATE v. PETRO. |
| Court | Ohio Supreme Court |
1. On the appeal of a criminal case, a judgment against the accused should be affirmed unless the reviewing court finds that it affirmatively appears from the record that the accused was prejudiced by error or prevented from having a fair trial.
2. The proviso contained in Section 13437-6, General Code, 'that the prosecuting attorney, if seasonably requested by the defendant, or upon order of the court, shall furnish a bill of particulars setting up specifically the nature of the offense charged,' is a mandatory provision and the overruling of defendant's motion seasonably made to order the prosecuting attorney to furnish such bill of particulars constitutes error.
3. Whether the failure of the court to order the prosecuting attorney to furnish a bill of particulars setting up specifically the nature of the offense charged is prejudicial error requiring reversal by a reviewing court, depends upon the facts of the particular case.
4. A prosecuting attorney is not required to disclose the state's evidence through a bill of particulars, but is required to state specifically the nature of the offense charged, including the manner in which or the means by which the death was caused, where the indictment charges murder in the first degree.
5. Since the enactment of Amended Senate Bill No. 8 to revise and codify the criminal procedure of Ohio (113 Ohio Laws, 123 et seq.), it is no longer necessary in an indictment for murder in the first degree to set forth the manner in which or the means by which the death was caused. Section 13 of Chapter 16 of such bill (Section 13437-13, General Code) however, affords no excuse for failure to furnish the defendant with a bill of particulars when seasonably requested and where, as in this case, the short form of indictment is used.
6. A statement by the trial court to prospective jurors on the voir dire examination, that is not prejudicial error requiring reversal of a conviction.
7. Where counsel on both sides of a criminal case are guilty of misconduct, the question whether such misconduct is prejudicial error preventing the accused from having a fair trial depends upon the facts and circumstances of the particular case.
8. Where the answer to a proper question contains hearsay, and there is no objection to or motion to strike such hearsay, and no request that the jury be instructed to disregard same, such evidence may properly be considered and given its natural probative effect as if it were at law admissible, the only question being with regard to how much weight should be given thereto.
9. Under Section 13442-8, General Code, the court is not required to give special instructions to the jury before argument in a criminal case. (Wertenberger v. State, 99 Ohio St. 353, 124 N.E. 243, approved and followed.)
10. This court is not required to determine as to the weight of the evidence in a criminal case. (Section 13459-1, General Code.)
11. In a criminal case where proof beyond a reasonable doubt is required, this court will look to the record to ascertain whether or not such rule has been disregarded. (Atkins v. State, 115 Ohio St. 542, 155 N.E. 189, approved and followed.)
12. Whether guilty or not, a defendant is entitled, as is every person charged with crime, to a fair trial.
Appeal from Court of Appeals, Cuyahoga County.
See also 76 N.E.2d 370.
On March 4, 1946, in the Municipal Court of Cleveland, the defendant was charged with first degree murder in connection with the death of one Theodore Robert Knaus
Upon arraignment March 5, 1946, the hearing was continued and before any preliminary hearing could be had the grand jury of Cuyahoga county returned an indictment, in the short form under Section 13437-6, General Code, for murder in the first degree against the defendant.
On March 22, 1946, defendant was arraigned in the Court of Common Pleas and entered a general plea of not guilty.
On May 24, 1946, defendant requested of the prosecuting attorney a bill of particulars which was refused. Thereupon defendant filed his motion for order of the court requiring the prosecuting attorney to furnish him with a bill of particulars under Section 13437-6, General Code, and Section 10, Article I of the Constitution of the state of Ohio, and the 14th Amendment to the Constitution of the United States.
On May 31, 1946, defendant's motion was overruled. On June 3, 1946, defendant was placed on trial, and prior to the taking of testimony, renewed his motion for a bill of particulars which motion was overruled.
On June 18, 1946, the jury returned a verdict of guilty of murder in the first degree without recommendation of mercy. Motion for new trial was overruled and on June 27, 1946, judgment was entered on the verdict and defendant was sentenced to death. An appeal on questions of law was filed in the Court of Appeals.
On October 11, 1946, defendant filed his motion for a new trial on the ground of newly discovered evidence. On November 27, 1946, the trial court overruled the last-mentioned motion. An appeal from this order of the trial court was filed in the Court of Appeals which affirmed the trial court's judgment on April 14, 1947. The Court of Appeals wrote no opinion. Further facts will appear in the course of our opinion.
Edward C. Stanton and M. A. Picciano, both of Cleveland, for appellant.
Frank T. Cullitan, Pros. Atty., and Victor DeMarco, both of Cleveland, for appellee.
Our question in this appeal is: Does it affirmatively appear from the assigned errors and the record that the defendant was prejudiced or was prevented from having a fair trial? Our question here is not whether there was error at the trial, but whether it affirmatively appears from the record that the defendant was prejudiced by any such error or thereby prevented from having a fair trial.
Section 13449-5, General Code, provides: 'No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court in case of any inaccuracy or imperfection in the indictment, information or warrant, provided that the charge be sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him; nor for any variance between the allegations and the proof thereof unless the accused is misled or prejudiced thereby; nor for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby; nor for any misdirection of the jury unless the accused was or may have been prejudiced thereby; nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.'
Defendant's assignments of error will be considered in order.
(1) The first is the overruling by the trial court of defendant's motion to order the prosecuting attorney to furnish defendant a bill of particulars setting up specifically the nature of the offense charged, which motion followed the failure of the prosecuting attorney to furnish defendant with a bill of particulars upon seasonable request therefor.
On March 4, 1946, in the Municipal Court, defendant was charged with murder and was arraigned in such court on the following day. Before a preliminary hearing was had, the grand jury returned an indictment in short form, Section 13437-6, General Code, against the defendant charging murder in the first degree.
On March 22, 1946, defendant was arraigned in the Court of Common Pleas and entered a general plea of not guilty.
On May 24, 1946, defendant requested of the prosecuting attorney a bill of particulars which was refused.
On May 24, 1946, defendant filed his motion for an order of court requiring the prosecuting attorney to furnish such bill of particulars. On May 31, 1946, such motion was overruled and the defendant was placed on trial on June 3, 1946. Prior to the taking of testimony defendant renewed his motion for a bill of particulars.
Defendant's written request to the prosecuting attorney for a bill of particulars reads as follows:
'Now comes the defendant Julius Anthony Petro, and hereby requests the prosecuting attorney of Cuyahoga county, Ohio, to furnish a bill of particulars setting forth specifically the nature of the offense charged in the indictment returned in the above matter pursuant to the provisions of Section 13437-6, General Code, said bill of particulars to contain the following:
'A detailed statement of the particular acts, conduct, methods or means by which the state of Ohio claims that the defendant unlawfully, purposely and of deliberate and premeditated malice killed Theodore Knaus.'
Upon refusal of the prosecuting attorney to furnish such bill of particulars, a motion was filed in the trial court for an order on the prosecuting attorney to furnish defendant with such bill. This motion in part reads:
'Defendant says further that no preliminary examination was accorded him before a magistrate or any other authorized official; that he was accorded no opportunity to meet his accusers face to face and to cross-examine them; and...
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