State v. Stanton

• Court: Ohio Supreme Court
• Writing for the Court: TAFT; Also as stated in the opinion by Matthias; However, we agree with the statement of Hunsicker
• Citation: State v. Stanton, 15 Ohio St.2d 215, 239 N.E.2d 92 (Ohio 1968)
• Decision Date: 17 July 1968
• Docket Number: No. 41416,41416
• Parties: , 44 O.O.2d 191 The STATE of Ohio, Appellee, v. STANTON, Appellant.

Page 215

15 Ohio St.2d 215

239 N.E.2d 92, 44 O.O.2d 191

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

No. 41416.

Supreme Court of Ohio.

July 17, 1968.

Syllabus by the Court

1. Where a special instruction in writing before argument is given by the trial court, it is error for the court to identify to the jury the party who requested that instruction.

2. In order to support a judgment of reversal, the record must affirmatively show that such error prejudiced the appellant.

Defendant was convicted in the Medina Municipal Court for operating a motor vehicle while under the influence of alcohol in violation of Section 4511.19, Revised Code.

Upon appeal to the Court of Appeals, the judgment of conviction was affirmed. (12 Ohio App.2d 99, 231 N.E.2d 322.)

The cause is before this court pursuant to certification by the Ninth District Court of Appeals 'for the reason that the judgment of; that court 'is in conflict with the judgment * * * by the Court of Appeals of the Tenth Appellate District * * * in * * * City of Westerville v. Cunningham, 12 Ohio App.2d 34, 230 N.E.2d 671.'

Jack M. Kinney, City Prosecutor, for appellee.

Savage, Zito & O'Malley and Walter A. Savage, Cleveland, for appellant.

TAFT, Chief Justice.

It is first contended that the trial court erred in permitting the prosecutor, over objection, to introduce evidence of defendant's refusal to take an intoximeter test and in further permitting the prosecutor to comment upon such failure in argument to the jury. For the reasons which we gave in Westerville v. Cunningham, ante 121, these claims of error are rejected.

It is contended further that, where a special instruction in writing, before argument is given by the trial court, it is prejudicial error for the court to identify to the jury the party who requested that instruction.

In our opinion, such a conclusion is required by Section 2945.10, Revised Code, which, so far as pertinent, reads:

'(E) When the evidence is concluded, either party may request instructions to the jury on the points of law, which instructions shall be reduced to writing if either party requests it.

'* * *

'(G) The court, after the argument is concluded and before proceeding with other business, shall forthwith charge the jury. Such charge shall be reduced to writing by the court if either party requests it before the argument to the jury is commenced. Such charge, or other charge or instruction provided for in this section, when so written and given, shall not be orally qualified, modified, or explained to the jury by the court. * * *' (Emphasis added.)

Also as stated in the opinion by Matthias, J., in Rosenberry v. Chumney (1960), 171 Ohio St. 48, 51, 168 N.E.2d 285, 288:

'* * * When a special instruction is given at the request of a party, it is not given as an instruction of such party but as an instruction of the court itself and becomes the law of the case.'

See, also, Lima Used Car Exchange Co. v....