State v. Porter

• Decision Date: 27 March 1968
• Docket Number: No. 40670,40670
• Citation: 43 O.O.2d 5,14 Ohio St.2d 10,235 N.E.2d 520
• Parties: , 43 O.O.2d 5 The STATE of Ohio, Appellant, v. PORTER, Appellee.
• Court: Ohio Supreme Court

Page 10

14 Ohio St.2d 10

235 N.E.2d 520, 43 O.O.2d 5

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

No. 40670.

Supreme Court of Ohio.

March 27, 1968.

Syllabus by the Court

1. In an action against a husband for nonsupport of a pregnant wife, under the provisions of Section 3113.01, Revised Code, it is not prejudicial error for a trial court to permit the state, during cross-examination of the accused, to attempt to impeach his credibility by showing a falsification of an application for a marriage license which he executed under oath.

2. Where a paragraph in a general charge, by itself, is improper and misleading, but when the court's entire charge is considered it is apparent that no prejudicial error resulted, the judgment will not be reversed. (Paragraph eight of the syllabus of Centrello v. Basky, 164 Ohio St. 41, 128 N.E.2d 80, approved and followed.)

3. Where a trial court's answer to a request from the jury for supplemental instructions is incomplete, confusing or misleading, but does not prejudice the accused, a judgment of conviction will not be reversed.

The defendant was convicted in the Common Pleas Court of violating Section 3113.01, Revised Code, which in pertinent part provides:

'No * * * husband of a pregnant woman, living in this state, shall fail to provide such child or woman with the necessary or proper home, care, food and clothing.'

Upon appeal, the Court of Appeals reversed the judgment of conviction.

The cause is before this court upon the allowance of a motion for leave to appeal.

James W. Freeman, Pros. Atty., for appellant.

Russel E. Lyons, Coshocton, for appellee.

C. WILLIAM O'NEILL, Judge.

The defendant and the complaining witness were married in Michigan on October 9, 1965. The period of time covered by the indictment extended from January 30, 1966, to April 25, 1966.

This appeal raises four questions for determination by this court.

The first question presented is: In an action against a husband for nonsupport of a pregnant wife, is it reversible error for a trial court to permit the state, on cross-examination of the defendant, to attempt to impeach his credibility by showing a falsification of an application for a marriage license which he executed?

In Ohio, the scope of permissible cross-examination for impeachment of credibility of an accused has been established in large part by two early Supreme Court cases. In Hanoff v. State (1881), 37 Ohio St. 178, 180, the court said:

'The defendant, having voluntarily offered himself as a witness in his own behalf, and testified in chief, thereby subjects himself to a legitimate and pertinent cross-examination. While occupying the witness stand he was entitled to the same rights and privileges, and was subject to the same rules of evidence as any other witness.'

Paragraph four of the syllabus of Wroe v. State (1870), 20 Ohio St. 460, reads as follows:

'The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rests in the sound discretion of the court trying the cause. Such questions may be allowed when there is reason to believe it will tend to the ends of justice; but they ought to be excluded when a disparaging course of examination seems unjust to the witness, and uncalled for by the circumstances of the case.' See, also, Smith v. State (1932), 125 Ohio St. 137, 180 N.E. 695; Maranda v. State (1923), 17 Ohio App. 479, 488; O'Hara v. Cincinnati St. Ry. Co. (1941), 68 Ohio App. 7, 8, 36 N.E.2d 823; State v. Kennedy (1943), 72 Ohio App. 462, 52 N.E.2d 873; 58 American Jurisprudence 346, Section 625; McCormick, Evidence, 62, Section 33; 3 Wigmore, Evidence (3 Ed.), 684, Section 1017.

False information was furnished by affidavit by the accused on his marriage license application. Information contained in a Michigan marriage license application is to be provided under oath, and a false statement sworn to on an application renders the affiant liable for prosecution for perjury. Sections 25.33 and 25.39, Michigan Statutes (1961 Rev.). Comp. Laws Mich.1948, §§ 551.103 (P.A.1963, No. 112,) § 551.108. The state sought to test the veracity of the accused by showing the falsification. The credibility of the accused was crucial to the issue of guilt for his testimony in many respects was contrary to that of the complaining witness. As the veracity or credibility of the accused was of great significance, the inquiry of the state was pertinent. Any disparagement which resulted from this line of cross-examination resulted not from the fact that he had been married three times previously, a fact which was irrelevant in the instant trial, but resulted from the fact of the falsification itself. The jury could reasonably conclude that as the accused had lied on the marriage license application, he may have also lied in his testimony at the trial regarding the material element of nonsupport. The court, upon the defendant's objection, instructed the jury that it could consider the testimony only for its effect on the witness' veracity and not as substantive evidence in the case.

No prejudicial error was committed by the trial court when the court permitted the state, during cross-examination of the accused, to attempt to impeach his credibility by showing a falsification of an application for a marriage license which he executed under oath.

The second question presented is: Did the trial court err by including in its general charge the sentence, 'It is equally important that an innocent person should not suffer' ond the ground that it created a prejudice in the minds of the jury against the accused?

The resolution of this issue turns upon a subjective interpretation of the language of the general charge.

Reversible error ordinarily can not be predicated upon one paragraph, one sentence or one phrase of the general charge. As this court held, in paragraph six of the syllabus of Flynn v. Sharon Steel Corp. (1943), 142 Ohio St. 145, 50 N.E.2d 319:

'Where complaint is made as to a portion of the charge of the court, a reviewing court will consider all of the charge upon the particular subject complained of to determine whether prejudicial error has been committed against the party complaining.'

If the general charge, considered as a whole, is not prejudicial to the objecting party, no reversible error results from a misstatement or ambiguity in a portion thereof. In paragraph eight of the syllabus in Centrello v. Basky (1955), 164 Ohio St. 41, 128 N.E.2d 80, this court said:

'Even though a paragraph in a general charge taken by itself is improper and misleading, yet where considered in connection with the whole charge and the entire instruction of the court to the jury, it is apparent that no prejudicial error resulted, the judgment rendered on a verdict will not be reversed for such error.'

See, also, State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313; Ochsner v. Cincinnati Traction Co. (1923), 107 Ohio St. 33, 140 N.E. 644; Campbell v. Koerner (App.1935), 20 Ohio Law Abst. 441; Cincinnati Traction Co. v. Dannenfelser (1914), 3 Ohio App. 220, 20 Ohio Cir.Ct.R.,N.S., 553.

In the general charge the word, 'innocent,' was used with reference to the defendant to indicate that the rights of an innocent accused should not be abused. The use of the words, 'innocent person,' implies that the word, 'person,' is the correlative of the word, 'defendant.' The sentence of the charge in dispute, when considered in the light of the general charge as a whole, is not prejudicial to the accused.

The third question for determination is: Did the Court of Appeals err in reversing the judgment of the trial court and granting the defendant a new trial on the ground that the supplemental instructions given the jury were incomplete, confusing and misleading?

During deliberations, the jury submitted the following request for additional instructions to the court:

'Need legal clarification on what constitutes the defendant's obligation to 'provide' for his wife. (1) Does he have the option to delegate this obligation to another person? (2) Is his 'obligation to provide' satisfied so long as his wife is properly provided for regardless of by whom?'

In answer to the jury's first question, the court instructed the jury:

'Now, the question is 'may he delegate this authority?' He may not delegate this authority because it is his duty made so by the statute. But he may imply (sic) instrumentality. For example, he might send the money to her by mail, by check, or he may employ a messenger or a friend, or something like that to supply her with money, food or clothing as required by statute.'

In answer to the jury's second question, the court instructed the jury:

'Is his 'obligation to provide' satisfied so long as his wife is properly provided for regardless of by whom? That has been pretty well covered by prior opinions of the courts. And I am going to paraphrase part of what the Supreme Court of Ohio has stated: 'It is plainly the duty of the defendant to support his pregnant wife.' I am supplying those words. 'And the fact that his pregnant wife had prior to the'-I am going to have to change this a bit. '-that parents or other persons had provided for his pregnant wife prior to the indictment did not absolve the defendant from his obligation in that regard. A refusal or neglect to provide the required support would, after demand was made upon him to do so, render him amenable to the provisions of the criminal statute.'

'Now, I have previously told you that a demand on her part was not required. The statute is plain on that.'

Defendant objected to these instructions on the ground that they should be supplemented with respect to the husband's knowledge of...