State v. Suspirata

• Decision Date: 04 January 1943
• Citation: 50 N.E.2d 270,71 Ohio App. 500
• Parties: STATE v. SUSPIRATA et al. SAME v. RICHARDSON et al. STAM v. LONARDO et al.
• Court: Ohio Court of Appeals

50 N.E.2d 270

71 Ohio App. 500

STATE v. SUSPIRATA et al.

SAME v. RICHARDSON et al.

STAM v. LONARDO et al.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

January 4, 1943

Syllabus by the Court.

1. When several defendants are brought to trial under a joint indictment, and some of them are dismissed during the course of the trial, it is proper, and not erroneous, for the trial court to inform the jury of such dismissals.

2. When in the trial of a criminal action, evidence is offered as to similar offenses, and the trial court, in the first proffer of such evidence, correctly charges the jury as to its purpose, and later states that such instruction applies to evidence of all similar offenses, he need not charge the jury in detail each time such proffer is made.

3. One can not take advantage of Section 13447-2, General Code when the application for discharge is not made until the cause is assigned for trial and the state is ready to proceed, when he has not demanded trial and has acquiesced in the continuances had.

Frank T. Cullitan, Pros. Atty., and Neil McGill, both of Cleveland for appellee.

Howell Leuck, J. Frank Azzarello, Selmo Glenn, Harry Glick, M. A Picciano, Leonard Danaceau, and Parker Fulton, all of Cleveland, for appellants.

MONTGOMERY Judge.

The appellants in these three several actions, together with others, were indicted in the Court of Common Pleas of Cuyahoga county for a violation of Section 13384, General Code, which is the section governing so-called blackmailing or extortion. During the progress of the trials some of those indicted were dismissed by the court, and one at least was found not guilty. All of the appellants were convicted under the several indictments which had been found against them, as were other defendants who have not appealed. Judgments having been entered upon the verdicts and sentences imposed, these several appeals were perfected to this court. The three cases were argued and submitted together, and we determine them together, because the propositions are essentially the same.

It is contended by several of the appellants that as to them there should have been directed verdicts on the ground of failure to connect them with the things charged. All of the appellants assigned generally, as ground of error, the claim that the several verdicts against them were manifestly against the weight of the evidence.

An examination of the voluminous records presented in these cases convinces us that there is no merit in either of these contentions. There was ample, credible evidence sufficient to justify the conviction of each and every one of these appellants who was convicted. The verdicts of the jury, and the judgments of the trial court thereon were not manifestly against the weight of the evidence.

We proceed, therefore, to a discussion of the several technical errors assigned which deserve some consideration. The average number of assignments of error as to each of these appellants in each case is twenty. As we have from time to time taken occasion to observe, under such circumstances, it is our experience that the greater the number of assignments of error in a given case, the less likely is there to be merit in any of them, and that observation is rather pertinent in the instant cases.

We have given consideration to all the assigned errors and, excepting those which we will hereinafter discuss, we find no merit in them, and nothing worthy of comment.

We have hereinBefore observed that others were indicted with these appellants and were dismissed during the progress of the trial. It is complained that the trial court caused prejudice to those held by announcing to the jury that the others had been discharged. The record shows that the argument with reference to those discharged defendants was not made in the presence of the jury. The trial court did state to the jury that they had been dismissed. He could not have done otherwise. With others accused and brought to trial, and the claims against them not being pressed, the jury was entitled to know what had happened and why the cases against those individuals were withdrawn from the jury's consideration. Otherwise, the jury could not have acted intelligently.

Nearly all of the appellants complain most vigorously of alleged misconduct on the part of the prosecuting attorney in his statements to the several juries in opening the cases and in his final argument to them. He called attention to the gigantic character of the conspiracy in which the several defendants were engaged, a conspiracy involving racketeering, blackmailing, extortion, and called attention to the fact that murders had been committed, and that other people had been threatened with the same fate which had been administered to the murdered men.

From an examination of these records we are convinced that this did not constitute misconduct, and that the prosecuting attorney was justified in the references which he made. For from time to time throughout these long records appear instances of threats by some of these defendants, or by the ringleader in their presence, in which recalcitrant individuals were threatened that, unless they 'came across,' they would meet the fate of certain individuals, which latter individuals the record shows had been murdered. The statements of the prosecutor were justified under this evidence. Of course, these threats were not made by all of the defendants. Various and sundry of them did make the threats. Others were present when the leader of the gang made them. We find ample proof of a conspiracy involving all of these appellants, and, consequently, these threats were properly introduced in evidence against them, and, in view of the evidence of the threats, the conduct of the prosecutor is not to be criticized.

Strenuous objection is raised to the charges of the court upon the question of conspiracy and upon the status of an aider and abetter. We have given careful attention to these charges. We see nothing in them to criticize. In fact, the court properly stated the law. And again it is urged that the trial court committed error in his instructions to the jury with reference to similar offenses, and that he did not in each instance, when a proffer was made of evidence as to a similar offense, charge the jury in connection with it.

His charge generally was even more favorable to the appellants than they were entitled to have. He in effect charged that this particular crime, in the action then being tried, must be proved beyond a reasonable doubt...