State v. Sheppard

• Decision Date: 31 May 1956
• Docket Number: No. 34615,34615
• Citation: 165 Ohio St. 293,135 N.E.2d 340
• Parties: , 59 O.O. 398 The STATE of Ohio, Appellee, v. SHEPPARD, Appellant.
• Court: Ohio Supreme Court

Page 293

165 Ohio St. 293

135 N.E.2d 340, 59 O.O. 398

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

No. 34615.

Supreme Court of Ohio.

May 31, 1956.

Syllabus by the Court

1. The exercise of the right to order a change of venue under Section 2931.29, Revised Code, lies in the discretion of the trial court.

2. A refusal to order a change of venue without prejudice until it can be determined whether a fair and impartial jury can be impaneled is not an abuse of discretion.

3. Where 75 prospective jurors are called pursuant to a venire and only 14 are excused from service in a criminal case because they had formed a firm opinion as to the guilt or innocence of the defendant and a jury of 12 members is impaneled and sworn before that venire is exhausted and before defendant has exercised all his allotted peremptory challenges, it is not an abuse of discretion for the trial court to refuse to order a change of venue.

4. In a criminal case, in the absence of an affirmative showing that the defendant was prejudiced thereby, a judgment of conviction will not be reversed because one of the officers to whose charge the jurors were committed during the night hours between sessions of their deliberations permitted some jurors to make telephone calls in his presence and within the hearing to members of their immediate families.

5. In an appeal from a conviction in a criminal case, this court will not retry the issues of fact but will confine its consideration to a determination of whether there is sufficient evidence to have warranted the submission of the case to the jury and whether there is sufficient substantial evidence to support the verdict rendered.

6. Where circumstantial evidence alone is relied upon in the proof of any element of a crime, and a jury finds that there is a reasonable hypothesis of innocence, after considering all the evidence, it is its duty to acquit; however, where the jury finds, after full deliberation, that there is no reasonable hypothesis of innocence based on the facts as it finds them to be, and the facts which it finds are irreconcilable with any reasonable hypothesis other than guilt, it is its duty to convict.

Marilyn Sheppard was found brutally murdered in a bedroom of her Bay Village home on the morning of July 4, 1954. Her husband, defendant herein, was indicted and tried for her murder. A judgment on a verdict of guilty of second degree murder was affirmed by the Court of Appeals for Cuyahoga County.

The cause is before this court on an appeal as of right and upon the allowance of a motion for leave to appeal.

Herbert, Tuttle, Applegate & Britt, Columbus, Gordon K. Bolon, Joseph S. Deutschle, Jr., Columbus, William J. Corrigan, Arthur E. Petersilge and Fred W. Garmone, Cleveland, for appellant.

Frank T. Cullitan, Pros. Atty., Saul S. Danaceau, Thomas J. Parrino and Gertrude Bauer Mahon, Cleveland, for appellee.

BELL, Judge.

Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. Special seating facilities for reporters and columnists representing local papers and all major news services were installed in the courtroom. Special rooms in the Criminal Courts Building were equipped for broadcasters and telecasters. In this atmosphere of a 'Roman holiday' for the news media, Sam Sheppard stood trial for his life.

The record of that trial covers 7,308 pages. And counsel devote 1,097 pages of briefs to a discussion of 29 alleged errors assigned by the defendant as having been committed by the Court of Appeals in affirming the judgment of the Court of Common Pleas. These 29 errors were combined into seven questions of law, only three of which were stressed in oral argument. They are:

1. Was the atmosphere in Cleveland as a result of the widespread publicity attendant upon this trial such as to require the trial court to grant a change of venue?

2. Did the permitting of jurors during their deliberations to communicate by telephone with members of their immediate families require reversal of the judgment on the verdict reached by the jury?

3. Is there sufficient evidence to have warranted submission of the case to the jury, and, if so, is there sufficient substantial evidence to justify the verdict rendered?

The law does not require this court to be so naive as to refuse to recognize the great amount of publicity accorded this case from the time of the discovery of the crime up to the present time. Every development has been given the 'full treatment' by the press, radio and television. The interest in each phase of the case has not been confined to the Cleveland area or to Ohio. Syndicated columns and news agency reports have made the case almost as well known in every community of the nation as it is in Cleveland.

It should be borne in mind, however, that the legal question presented to us is whether the defendant was accorded a fair constitutional trial by an impartial jury which could decide the issues of fact solely upon the consideration of the evidence in the light of the law given it by the court. That question is not to be decided on the volume of the publicity or the tendency such publicity may have had in influencing the public mind generally as to the defendant's guilt or innocence.

At the outset of the trial, in response to defendant's motion for change of venue, the trial court said:

'The motion for change of venue will be held in abeyance, and we will proceed at 1:15 this afternoon in an effort to determine whether or not we can secure a fair and impartial jury. If we are not able to do that, there will be no question in this court's mind at all but what this case ought to go out of Cuyahoga County, whatever may be the effect of that.'

At the conclusion of the impaneling of 12 jurors, the motion for change of venue was renewed (for the third time), at which time, in overruling the motion, the trial court said:

'That the best evidence in the world is the effort to select a jury, and what we get here in a picture that has taken almost two weeks of time. The court is thoroughly satisfied that we have here a fair and impartial group of people to try this case, and I doubt if under any conditions at any time anywhere in this state you could have a better looking group of people and a more intelligent group of people, as a whole, to try a case of this kind, and the court is thoroughly satisfied that they are a group of fair and impartial people who can properly try this case under the guidance of the court, and I hope we will be able to give them that in the manner that it ought to be given.'

The same motion, advanced for the same reason, was renewed on five other occasions during the trial, and the trial court in each instance overruled the motion.

We believe the trial court was justified in those rulings. In Townsend v. State, 17 Ohio Cir.Ct.R.,N.S., 380, 25 Ohio Cir.Dec. 408, affirmed without written opinion in 88 Ohio St. 584, 106 N.E. 1083, it is said:

'The examination of jurors on their voir dire affords the best test as to whether or not prejudice exists in the community against the defendant; and whether it appears that the opinions as to the guilt of the defendant of those called for examination for jurors are based on newspaper articles and that the opinions so formed are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue.'

For example, in Richards v. State, 43 Ohio App. 212, 183 N.E. 36, it was held that the exercise of the right to order a change of venue lies in the trial court's discretion, and that a refusal to order a change of venue without prejudice until it can be determined whether a fair and impartial jury can be impaneled is not an abuse of discretion. See, also, Dorger v. State, 40 Ohio App. 415, 179 N.E. 143; State v. Stemen, 90 Ohio App. 309, 106 N.E.2d 662; State v. Deem, 154 Ohio St. 576, 97 N.E.2d 13.

If the jury system is to remain a part of our system of jurisprudence, the courts and litigants must have faith in the inherent honesty of our citizens in performing their duty as jurors courageously and without fear or favor. Of the 75 prospective jurors called pursuant to this venire only 14 were excused because they had formed a firm opinion as to the guilt or innocence of the defendant. A full panel was accepted before this venire was exhausted, and defendant exercised but five of his allotted six peremptory challenges.

In the light of these facts, and particularly in the light of the fact that a jury was impaneled and sworn to try this case fairly and impartially on the evidence and the law, this court can not say that the denial of a change of venue by the trial judge constituted an abuse of discretion.

Defendant contends that he was prejudiced in this case by the actions of two officers of the court, in whose charge the jury was committed during its deliberations, in permitting some members of the jury to make unmonitored telephone calls in violation of Section 2945.33, Revised Code, which reads as follows:

'When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. The court may permit the jurors to separate during the adjournment of court overnight, under proper cautions, or under supervision of an officer. Such officer shall not permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. * * *'

It is conceded that no authorization for such telephone calls was given by the court.

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