State v. Sheppard

• Decision Date: 13 July 1955
• Citation: 128 N.E.2d 471,100 Ohio App. 345
• Parties: , 60 O.O. 298 STATE of Ohio, Plaintiff Appellee, v. Samuel H. SHEPPARD, Defendant Appellant.
• Court: Ohio Court of Appeals

Page 345

100 Ohio App. 345

128 N.E.2d 471, 60 O.O. 298

STATE of Ohio, Plaintiff Appellee, v. Samuel H. SHEPPARD, Defendant Appellant.

Court of Appeals of Ohio, Cuyahoga County.

July 13, 1955.

Page 398

Frank T. Cullitan, County Pros., Saul S. Danaceau, T. J. Parrino, Assts. County Pros., Cleveland, for plaintiff appellee.

Corrigan, McMahon & Corrigan, Fred W. Garmone, Arthur E. Petersilge, Cleveland, for defendant appellant.

SKEEL, Judge.

This appeal comes to this Court on questions of law, from a judgment of the Common Pleas Court of Cuyahoga County, Ohio App., 128 N.E.2d 504, entered on a verdict of a jury finding the defendant guilty of murder in the second degree.

The defendant was indicted by the Grand Jury of Cuyahoga County for the crime of murder in the first degree, it being charged that on the 4th day of July, 1954, he purposely and of deliberate and premeditated malice killed Marilyn Reese Sheppard. Marilyn Reese Sheppard, who was the wife of defendant, was found to have been murdered while in bed at her residence at 28924 West Lake Road, Bay Village, Ohio. The report of her death was first made by the defendant in a telephone call to the Mayor of Bay Village, J. Spencer Houk, a close friend of the defendant and the deceased, shortly before 6 A.M. July 4, 1954. Thereafter the police and firemen of Bay Village, members of the homicide squad of the Police Department of the City of Cleveland, deputy sheriffs from the Sheriff's office of Cuyahoga County and the County Coroner and members of his staff, were called to the defendant's home and an examination of the premises was conducted. The defendant was removed to Bay View Hospital, where he was questioned by the coroner, a deputy sheriff and a police officer, and at some time thereafter made a written statement of the defendant's knowledge and circumstances surrounding the death of defendant's wife.

From the first time notice of the death of Marilyn Sheppard came to the attention of the press, radio and television stations, they immediately began to devote a great amount of space in publicizing every conceivable phase of the case. Every step of the way, the announcement of the death of Marilyn Reese Sheppard by force and violence, the investigation of the crime, the inquest, the indictment and every step of the trial was headlined and on many occasions editorial comment was indulged in.

The trial was protracted over a period from October 18th to December 17, 1954. The jury deliberated on its verdict from Dec. 17th to Dec. 21, 1954, including Dec. 19th which was a Sunday. The jury, consisting of seven men and five women, were quartered in the Carter Hotel of Cleveland, Ohio, under the care of two male bailiffs during their deliberations.

Before the trial began on October 17, 1954, the defendant filed a motion for a change of venue, which motion was renewed from time to time before and during the trial. The defendant also moved to continue the case on the ground that there had been so much publicity that a fair trial could not be had. These motions were overruled and the trial had, resulting in a verdict of not guilty of murder in the first degree, but guilty of murder in the second degree. After overruling defendant's motion for new trial, the defendant was sentenced to life imprisonment as provided by law.

The defendant claims the following errors:

'1. The Court erred in denying the defendant-appellant's application for bail.

'2. The Court erred in denying the defendant-appellant's motion for a change of venue, which motion was repeated from time to time during the progress of the trial and repeatedly overruled.

'3. The Court erred in denying defendant-appellant's application for a continuance, which was repeated during the progress of the trial and repeatedly overruled.

'4. The Court erred in compelling the defendant-appellant to exercise peremptory challenges when the Court should have allowed the challenge for cause.

'5. The court erred in denying defendant-appellant's motions for withdrawal of a juror and continuation of the case.

'6. The irregularities occurring during the trial and which reoccurred from time to time and to which the defendant-appellant objected and which objections were repeatedly overruled.

'7. The Court erred in the dismissal from the jury, after the jury was accepted and sworn, of Juror William Manning, and substituting in his place, over the objection of the defendant-appellant, Juror Jack Hanson.

'8. The Court erred in not permitting the defendant appellant to exercise a peremptory challenge after such substitution.

'9. There was irregularity in the proceedings of the court.

'10. There was irregularity in the proceedings of the jury.

'11. There was irregularity on the part of the prosecuting attorney.

'12. There was irregularity on the part of witnesses for the State of Ohio.

'13. There was error in the orders of the court by which the defendant appellant was denied the benefit afforded him by the Constitution of Ohio and the Constitution of the United States of America, including the amendments thereto.

'14. There was abuse of discretion by the Court, by reason of which the defendant appellant was prevented from having a fair trial.

'15. There was misconduct on the part of the prosecuting attorney.

'16. There was misconduct on the part of witnesses for the State of Ohio.

'17. The verdict is not sustained by sufficient evidence.

'18. The verdict is contrary to law.

'19. Errors of law occurring at the trial, prejudicial to the defendant appellant.

'20. Evidence prejudicial to the defendant-appellant was admitted over his objection.

'21. Evidence excluded from the consideration of the jury which was proffered by the defendant-appellant and which should have been admitted in evidence.

'22. There were errors by the court in its charge to the jury which were prejudicial to the defendant-appellant.

'23. There were errors by the court in refusing to give special instructions to the jury prior to argument, as requested by the defendant-appellant, and which were afterwards not included in his general charge.

'24. There was error by the court in overruling the defendant-appellant's motion for a directed verdict of 'not guilty' at the close of the State's evidence in chief.

'25. There was error by the Court in overruling the defendant-appellant's motion for a directed verdict of 'not guilty' at the close of all the evidence.

'26. There was error by the court in denying the motions made by the defendant-appellant both at the close of the State's case and at the close of the defendant-appellant's case.

'27. There was error by the court in not removing from the consideration of the jury the count of first degree murder.

'28. There was error by the court in not removing from the consideration of the jury the count of second degree murder.

'29. There was error by the court in not removing from the consideration of the jury the count of manslaughter.

'30. Other errors apparent on the face of the record to the prejudice of the defendant-appellant, and by reason of which he was prevented from having a fair trial, as affirmatively appears from the record.

'31. The indictment by the Grand Jury was the result of pressure exerted on the Grand Jury.

'32. The concept of presumption of innocence as established in the law was disregarded by the jury, who in their deliberations substituted for it a presumption of guilt.

'33. That the judge in this case several days before the day of trial met with newspaper reports, newspaper photographers, television personnel and radio commentators and arranged the courtroom in such a manner that the representatives of the press, radio and television were given preference to the space in the courtroom. He also caused to be built and erected inside the bar a long table, which extended across the courtroom, and approximately twenty newspaper reporters were assogned seats at this table. One end of the table was within three feet of the jury box. Outside the bar there are four rows of benches which are for the use of the public during trials. Each of these benches will seat about twenty persons. The Court assigned the first three rows to the personnel of the press, radio and television and in advance of the trial caused printed slips to be made with the names of such personnel printed thereon, and said printed slips were pasted at regular intervals along said row of benches so that said personnel referred to would know which place was assigned to him or her. The last row was reserved for members of the defendant's family and members of the family of the deceased Marilyn Sheppard. The court established a rule that the admission of other persons to the courtroom was to be by card. The court also assigned to said newspaper, radio and television personnel all the rooms on the courthouse floor, including the Assignment Room where cases are assigned to other court rooms for trial. In these rooms said radio, television and newspaper personnel had private telephone lines installed and other necessary equipment to carry on their work. Space in the Assignment Room was set over for the Chicago Tribune, Chicago Sun, The New York Herald Tribune, the Akron Beacon Journal, The New York Journal American, The Associated Press, The Pittsburgh Post Dispatch, the New York Post, The New York Daily News, The International News Service and the United Press.

'There was also erected in that room special telephone booths and telegraph equipment which was used to forward with dispatch the reports of the trial.

'Rooms were also assigned to radio commentators on the third floor of the courthouse. This is the floor on which the jury deliberating rooms are located. One such room located next door to the jury that was impanelled in this case, was used by Radio Station WSRS and broadcasting continued from that room throughout the trial and during the time that the jury was in the room next door and...