State v. De Righter
| Decision Date | 01 August 1945 |
| Docket Number | 30274. |
| Citation | 62 N.E.2d 332,145 Ohio St. 552 |
| Parties | STATE v. DE RIGHTER et al. |
| Court | Ohio Supreme Court |
Appeal from Court of Appeals, Cuyahoga County.
Frank T. Cullitan, Pros. Atty., Saul S Danaceau, and Victor DeMarco, all of Cleveland, for appellant.
William J. Corrigan and Joseph B. Corrigan, both of Cleveland, for appellees.
At a primary election held in the city of Cleveland, Ohio, on September 28, 1943, one Laundon T. McGrain voted in eleven of the fourteen precincts in which he had registered under various aliases in the twenty-second ward.
Under the provisions of Sections 4785-201 and 4785-202, General Code, several indictments were returned against him and also against one Irene M. Kelley, as an aider and abettor. Pleas of guilty were entitled by them as to all charges.
In the instant case John T. and Susan DeRighter, husband and wife were indicted jointly in two counts charging that they together with Irene M. Kelley aided and abetted McGrain to register unlawfully in precinct F and to vote unlawfully in precinct U.
Both defendants were tried, convicted and sentenced.
Upon an appeal to the Court of Appeals on questions of law the judgment of conviction was reversed as to both defendants. John T. DeRighter was ordered discharged on the ground that the record discloses no proof of his guilt and that therefore, the trial court should have directed a verdict in his favor. As to Susan DeRighter the case was remanded for a retrial, but unfortunately the ground therefor is omitted from the all-important journal entry which, of course, should contain a complete statement of the court's judgment. An attempt to remedy this deficiency was made by a reference to the opinion which, as restated by Judge Shauck in the case of Summers v. Thomas Mfg. Co., 82 Ohio St. 338, at page 346, 92 N.E. 482, is not a part of the record.
The case is in this court for review by reason of the allowance of the state's motion for leave to appeal.
It is insisted that the trial court committed numerous errors requiring the Court of Appeals to reverse the judgment.
Several of these alleged errors discussed by the Court of Appeals are based upon a bill of particulars furnished by the prosecuting attorney after a request had been made by the defendants. The bill reads as follows:
'The state of Ohio will prove on the trial of the above stated case, the following matters:
'The defendants John T. DeRighter and Susan DeRighter, and Irene Kelley and Laundon T. McGrain conspired with one another and did plan, scheme and arrange for the said Laundon T. McGrain to register fraudulently and unlawfully and to vote fraudulently and unlawfully for and in the primary election in the city of Cleveland on September 28, 1943 in Precinct F of ward 22 and precinct U of ward 22, respectively.
'The said Laundon T. McGrain assisted and helped by the said defendants John T. DeRighter and Susan DeRighter and Irene Kelley fraudulently and unlawfully registered and voted in the said precincts F and U of ward 22 for and in the city primary election in the city of Cleveland on September 28 1943, under the fictitious names of Henry A. Gaskey in said precinct F and Thomas J. Malloy in said precinct U, the said Laundon T. McGrain, also known as Henry A. Gaskey and Thomas J. Malloy, being not a legally qualified voter in said Precincts F and U in said ward 22 in said city of Cleveland; and the said defendants John T. DeRighter and Susan DeRighter and Irene Kelley assisted and helped to put into effect the said fraudulent and unlawful registration and voting, and procured the said Laundon T. McGrain to so fraudulently and unlawfully register and vote in the places and at the times aforesaid.
'The offenses set forth in the indictments are as follows:
'False registration--Section 4785-201, General Code,
'Illegal voting--Section 4785-202, General Code.
'Section 12380, General Code, entitled 'Aiders and abettors' provides that 'whoever aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.''
In the opinion of the Court of Appeals it is stated that the bill of particulars improperly 'attempts to enlarge the criminal charge' but 'narrowed the issues.' However, a careful study of the record discloses no basis for either of these conclusions. It is stated that in the two counts of the indictment McGrain was charged with registering unlawfully in precinct F and voting unlawfully in precinct U but that in the bill of particulars he was charged with both registering and voting in precinct F. Clearly the first half of this statement is correct but the second is not. The exact language used in the bill of particulars is that the registering and the voting occurred ' respectively' in precincts F and U. It was charged simply that McGrain unlawfully had respectively registered in the one precinct and voted in the other. At no time during the trial did the prosecuting attorney contend that either the indictment or the bill of particulars included a charge of voting in precinct F, and the record discloses nothing to indicate a misunderstanding on the part of the defendants, the court or the jury. The word 'respectively' is not quoted nor is reference made to it in the opinion of the Court of Appeals. But even if the defendants had considered the bill of particulars ambiguous or inconsistent with the indictment, under the provisions of Section 13437-6 and 13437-29, General Code, they could have asked to have the bill amended. After failing to avail themselves of the remedy the law provides, the defendants cannot be heard to complain.
Another error is predicated upon the fact that the prosecuting attorney read the bill of particulars in his opening statement to the jury. Just how this could have been prejudicial or even improper is not apparent, inasmuch as the statutory function of a bill of particulars is set 'up specifically the nature of the offense charged'--the very thing a jury is required to know in order to render an intelligent verdict. Furthermore, the bill of particulars was furnished upon the request of the defendants themselves, and they evidently saw no impropriety in the reading of it to the jury, because they not only made no objection thereto but complained when the court did not read it during his charge. Then, too, under the mandatory provisions of Section 13442-8, General Code, relating to trial procedure in criminal cases, 'counsel for the state must first state the case for the prosecution, and may briefly state the evidence by which he expects to sustain it.' This is exactly the thing the prosecuting attorney did; and the fact that part of his statement was read is of no importance.
A further claim of error is based upon the fact that the bill of particulars contains no allegation as to like acts or similar offenses. It is contended that this so 'narrowed the issues' as to render evidence with reference thereto inadmissible. This view misconceives the purpose of a bill of particulars under the law of this state as set forth in Sections 13437-6 and 13437-29, General Code, already mentioned. The first of these reads in part as follows 'Provided, 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...
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