State v. Sappienza

• Decision Date: 28 March 1911
• Docket Number: 12849
• Citation: 95 N.E. 63,84 Ohio St. 63
• Parties: The State v. Sappienza.
• Court: Ohio Supreme Court

95 N.E. 63

84 Ohio St. 63

The State v. Sappienza.

No. 12849

Supreme Court of Ohio

March 28, 1911

Trial for robbery - Proven defendant was present during act of crime - Defendant interposes plea of duress - Burden of proof rests with defendant - Law of evidence.

Where in the trial of an indictment for robbery, it is proved beyond a reasonable doubt, that the defendant was present at the time and place of the crime and participated in the acts which constituted the robbery, and the defendant, for his defense, interposes a plea of duress, the burden is not on the state to disprove such plea, but is on the defendant to maintain his plea by a preponderance of the evidence.

At the April term, 1910, of the court of common pleas of Cuyahoga the defendant in error, Grasuldo Sappienza, with four others was indicted for the crime of robbery. A plea of not guilty having been entered by the defendant he was put upon trial June 27, 1910, and convicted of robbery as charged in the indictment. Motion for new trial having been overruled, the defendant was sentenced to the penitentiary for fifteen years, and ordered to pay the costs. On error to the circuit court the judgment of the common pleas was reversed for error in the charge of the court to the jury, and the cause ordered remanded to the court of common pleas for a new trial. The State, availing itself of section 13764 of the General Code authorizing such proceedings, brings error in this court seeking a reversal of the judgment of the circuit court and an affirmance of the judgment of the common pleas. Further facts essential to an understanding of the point decided will be found in the opinion.

Mr. John A. Cline, prosecuting attorney, and Mr. Charles H. Olds, assistant prosecuting attorney, for plaintiff in error.

In the case of State v. Austin, 71 Ohio St. 322, it is held that the burden of establishing insanity by a preponderance of the evidence rests upon the defendant though it was proven that prior to the commission of the crime of homicide, the defendant had been adjudged insane two different times.

In support of our contention that duress is an affirmative defense and required such a preponderance of the evidence, we cite the following cases and authorities: 1 Wharton Crim. Law (10 ed.), sec. 94; 1 Bishop Crim. Law (8 ed.), sec. 352; People v. Repke, 103 Mich. 459.

It is one of the elements of the defense, in cases of insanity, that the defendant has no control of his will, and that he cannot do otherwise than to yield to the superior force. Sayres v. Commonwealth, 88 Pa. St., 301.

Of a like character is the defense of duress wherein the defendant avers that he has no control of his actions, and that he is absolutely under a superior power, whose will he must obey. 1 Wharton Crim. Law (10 ed.), secs. 94, 95.

As to the burden of proof and the rules which shift the burden to the defendant, see Underhill on Evidence (2 ed.), secs. 23, 24.

Why an alibi differentiates from defense of insanity, duress and self-defense, see Underhill on Evidence (2 ed.), Sec. 148; Wharton on Crim. Evidence, secs. 322, 329; Gore v. State, 58 Ala. 391.

The reasoning in Kelch v. State, 55 Ohio St. 146; Coyle v. Commonwealth, 100 Pa. St., 573; Weaver v. State, 24 Ohio St. 584; Silvus v. State, 22 Ohio St. 90, apply with equal force to the defense of duress. Commonwealth v. Blodgett, 12 Metc., 56; Sharp v. State, 17 Ga. 290; State v. Wilson, 39 Mo. App., 114; 1 Greenleaf on Evidence (17 ed.), 79; Ellis v. State, 30 Tex. Crim. App., 601; State v. Arnold, 35 N. Car. (13 Ired.), 184; State v. Foster, 23 N. H., 348; State v. McGlynn, 34 N. H., 422; State v. Simons, 17 N. H., 83; Farrall v. State, 32 Ala. 557; Commonwealth v. Zelt, 138 Pa. St., 615, 11 L.R.A. 602.

Mr. B. D. Nicola, for defendant in error.

The criminal intent is one of the essentials of the crime of robbery. The trial court recognized this fact in stating to the jury the elements of the crime, and in charging the jury that each one of the constituent elements of the crime of robbery must be proven by the state beyond a reasonable doubt. If the court was correct in stating that the "felonious intent" is an element of the crime, then, we contend, any evidence that would tend to prove or disprove the felonious intent must be given to the jury for its consideration, and if the evidence so given the jury, raises a reasonable doubt in their minds, of the guilt of the defendant, the state has not made its case to that degree of certainty required by the law.

It is not true that this defense is similar to the defense of confession and avoidance. The crime is not confessed, and we are not setting up new and extraneous matter in avoidance, as must be the case in the old common law confession and avoidance. We are denying the commission of any crime.

The distinction sought to be made by the state between the old statute of robbery and the new is without reason. A glance at the old statute and the new will show this. Section 12432, General Code; section 6818, Revised Statutes.

It is apparent that the words "intent to steal" were necessary in the old statute, because only a taking was referred to in the beginning of the section. In the revision the words "steals and takes" are used at the beginning of the section, and the word "intent" is not necessary, as "steals" means the "felonious taking and carrying away." It follows, then, that the cases upon which the circuit court relied for reversing the trial court were pertinent to the decision of the point in controversy. Jones v. State, 51 Ohio St. 331; Walters v. State, 39 Ohio St. 215.

Where the defense is not in confession and avoidance, but in traverse of some essential fact relied on by the prosecution, the burden of proof, as has already been noticed, is on the prosecution to satisfy the jury that its case is made out. Wharton Crim. Evidence, sec. 329.

Intent is an element of crime and the inference thereof, or of malice, is to be drawn from the whole case, varying in force as the case varies. Wharton Crim. Evidence, sec. 738; Filkins v. Peo- ple, 69 N.Y. 101; State v. Painter, 67 Mo. 84; State v. Maynard, 19 Nev. 284.

We maintain that the defense of duress is exactly parallel to the defense of an alibi. Each traverses one particular element of the crime. In Ohio the supreme court has held that if the evidence raised a reasonable doubt in the minds of the jury as to the presence of the defendant at the place where the crime was alleged to have been committed, then the jury must acquit him. Walters v. State, 39 Ohio St. 215.

SPEAR C. J.

Salient facts appearing with respect to the robbery are that on June 15, 1910, the defendant with four other men went out a few miles from Cleveland and lay in wait for the paymaster of The Cleveland Trinidad Paving Company, who was expected to pass with the payroll and money for the men. That person was joined by the foreman and they started to travel to the place of work, when five men, all armed with large caliber revolvers, suddenly leaped from the bushes at a lonely spot and conducted the paymaster and foreman into a near woods bound and blindfolded them and took from them eleven hundred and ninety-two dollars in money, and made way with it. One Consolo was captured. The defendant, on information obtained from Consolo, was arrested a day or two later. The evidence of the state at the trial showed that Sappienza and others associated with him had planned the robbery some days before its commission. The defendant set up as a defense at the trial that although present he did not want to commit the robbery; and testified that his life was threatened, and that the only reason he went with them was through fear of his life. Two others who had been apprehended testified in corroboration. The defendant's counsel presented to the court several requests to charge, all bearing upon the effect in law of the defense, as to the burden of proof regarding the plea of duress. The court declined to give them, but did charge the jury upon that branch of the case as follows: "The defendant in this case makes the defense that he withdrew in the first instance from the conspiracy or common design to perpetrate this robbery; but that he was coerced and acted under duress. On this subject I say to you that this is the defense made by the defendant and the burden of proof is upon him. It is not necessary, gentlemen of the jury, so far as this defense is concerned, that it should be proven beyond a reasonable doubt; it is sufficient in law if it should be shown by the preponderance of proof. By preponderance I do not mean that more witnesses should testify on one side or the other; but if you believe from the whole testimony that the preponderance of proof is with the defendant, with reference to the question of defense I have spoken about, then you may say that he has maintained that issue. On that subject I say to you this, it is the law that if a man has determined to commit a crime, and is engaged in carrying out his purpose, he has a right at any time before the consummation of the offense,...