State v. Stanton

• Decision Date: 15 November 1967
• Citation: State v. Stanton, 231 N.E.2d 322, 12 Ohio App.2d 99 (Ohio App. 1967)
• Parties: , 41 O.O.2d 178 The STATE of Ohio, Appellee, v. STANTON, Appellant.
• Court: Ohio Court of Appeals

Page 99

12 Ohio App.2d 99

231 N.E.2d 322, 41 O.O.2d 178

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

Court of Appeals of Ohio, Ninth District, Medina County.

Nov. 15, 1967.

Syllabus by the Court

1.While the practice is disapproved, it is not reversible error for a trial court in a criminal case, in giving a requested special instruction before oral argument to the jury, to identify the party making such request.

2.It is not prejudicial error for a trial court to permit reference, in oral argument to the jury, concerning the refusal of one accused of operating a motor vehicle on the public highway, whiel under the influence of alcohol, to submit himself to physical tests to determine whether he was under the influence of alcohol.

3.Errors or irregularities in the course of trial which do not in and of themselves, establish prejudice to the substantial rights of the losing party are not grounds for reversing a judgment.

James W. Foreman, Pros.Atty., and Jack M. Kinney, Medina, for appellee.

Savage, Zito & O'Malley, Cleveland, for appellant.

HUNSICKER, Judge.

In this appeal on questions of law, John M. Stanton, the appellant, says that the judgment of guilty, rendered against him on the verdict of a jury, was improper.Mr. Stanton was found guilty of the offense of driving a motor vehicle on a public highway in Medina County while under the influence of alcohol, contrary to and in violation of Section 4511.19, Revised Code.

The errors claimed by Stanton are as follows:

'1.The court erred to the prejudice of the defendant by stating to the jury after certain special instructions had been read that they were at the defendant's request.

'2.The prosecutor's comments to the jury regarding the defendant's refusal to take an alcoholmeter test constituted error prejudicial to the defendant.

'3.The court erred to the prejudice of the defendant in not granting his motion for dismissal at the close of the state's case and by its comments while so ruling.

'4.The verdict is against the manifest weight of the evidence and is contrary to law.

'5.For errors of law apparent on the face of the record.'

After reading the bill of exceptions, this court can come to but one conclusion, which is, that John M. Stanton was driving his motor vehicle on a public highway in Medina County while under the influence of alcohol, at the time and place set out in the affidavit charging him with such offense.

It now becomes necessary for this court to examine the other claims of error.

At the conclusion of the evidence, and after all parties had rested, the trial court read two requested instructions to the jury before oral argument.After reading them, the judge said to the jury: 'Let the record show that these instructions were at the request of the defendant.'Counsel for the defendant immediately objected, but the trial court overruled such objection.

It has always been the custom, in the trial of jury cases, never to indicate to the jury which party may have asked for special instructions.Instructions are read without comment merely as a part of the law of the case.No Ohio criminal cases have been referred to us bearing on this question.However, civil cases have discussed the problem.The giving of requested instructions in a criminal case, before oral argument, is not mandatory.State v. Barron, 170 Ohio St. 267, 164 N.E.2d 409.

In the absence of reported cases on this subject, we must determine whether the error complained about was prejudicial.The appellant is entitled to a trial free from prejudicial error, not free from all error.If, after a review, it is determined that Mr. Stanton had a fair and impartial trial, then he has been accorded his rights under the law.

There is never an occasion for a judge to tell the jury which party submitted special instructions.We believe such practice to be improper, but not necessarily prejudicial.The matter has been considered in civil cases.See: Metropolitan Life Ins. Co. v. Howle, 68 Ohio St. 614, at 622, 68 N.E. 4;Johnson v. Hunter, 103 Ohio App. 31, 144 N.E.2d 472;Hudson v. City of Cleveland, Ohio App., 142 N.E.2d 535, 76 Ohio Law Abst. 360; 53 American Jurisprudence 431, Trial, Section 538;88 C.J.S.Trial, § 411c, p. 1129.In Rosenberry v. Chumney, 171 Ohio St. 48, 168 N.E.2d 285, andLima Used Car Exchange Co. v. Hemperly, 120 Ohio St. 400, 166 N.E. 364, the Supreme Court of Ohio made it very plain that requested instructions, when given, become the law of the case and are not to be regarded as the law of any particular party.

In the case of Picchetti v. Pittsburgh Plate Glass Co., 105 Ohio App. 514, 153 N.E.2d 209, the court, without the citation of any authority, says it is prejudicial error to make known to the jury the party who makes a request for an instruction.With that conclusion, we do not agree for we believe it depends on the circumstances in each case.

When we examine the record in this case, although we disapprove of what was done in regard to characterizing the requested instructions as coming from one of the parties, we must conclude that the error was not prejudicial to the substantial rights of Mr. Stanton.

Shortly after Mr. Stanton crashed his automobile into a telephone pole in front of a house near Sharon Center, the highway patrolman asked him, at that place, if he would submit to an alcoholmeter, or to an intoximeter, test.The officer testified that Mr. Stanton agreed, but later said that Mr. Stanton said he would not take such a test.In oral argument to the jury at the conclusion of the evidence, the prosecutor commented on such refusal.

Mr. Stanton did not testify as a witness in his own behalf, nor was any evidence produced to refute the statement of the highway patrol officer.It has recently been held that a taking of blood against objection from one charged with operating a motor vehicle while intoxicated, and submitting the results thereof at a trial, is not compelling one to give testimony against himself.Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

For an indication of the extent traffic officers may go in controlling traffic on our streets, see: City of Cuyahoga Falls v. Church, 10 Ohio App.2d 9, 225 N.E.2d 274.

We believe the law in Ohio is such that one who is accused of driving while intoxicated, and who, upon request, refuses to submit to a test to determine whether such condition does exist, cannot complain when, in oral argument of the case to the jury, reference is made to such refusal to submit oneself to physical tests that may determine one's fitness to operate a motor vehicle upon a public highway.People v. Sudduth65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401.

See: State v. Nutt, 78 Ohio App. 336, 65 N.E.2d 675;State v. Gatton, 60 Ohio App. 192, 20...