State v. Swiger

• Decision Date: 16 February 1966
• Docket Number: 39490,39088,Nos. 39072,s. 39072
• Citation: 5 Ohio St.2d 151,214 N.E.2d 417,34 O.O.2d 270
• Parties: , 34 O.O.2d 270 The STATE of Ohio, Appellee, v. SWIGER, Appellant. The STATE of Ohio, Appellee, v. BELLAMY, Appellant. The STATE of Ohio, Appellee, v. MILLER, Appellant.
• Court: Ohio Supreme Court

Page 151

5 Ohio St.2d 151

214 N.E.2d 417, 34 O.O.2d 270

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

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

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

Nos. 39072, 39088, 39490.

Supreme Court of Ohio.

Feb. 16, 1966.

Rehearing Denied March 16, 1966.

Syllabus by the Court

1. The examination of jurors on their voir dire affords the best test as to whether prejudice exists in the community against the defendant, and whether it appears that opinions as to the guilt of the defendant of those called for examination for jurors are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue, in absence of a clear showing of an abuse of discretion.

2. Where from the evidence reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt, the question is one for determination by the jury. (Paragraph five of the syllabus of State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548, followed.)

Emma Austing, sometimes herein referred to as deceased, a widow 76 years old, lived alone with her two dogs in her home on Loveland-Madeira Road, Loveland, Ohio. On the morning of May 68 1963, one Isham Ward who worked for deceased arrived at her residence to start work. Upon noticing that the doors of the sun porch were standing open, he glanced into the house. From where he stood, Ward could see through the main part of the house, that is, from the sun porch through the kitchen, the dining room and the living room. Noticing a great disarray--furniture overturned, drawers pulled out and rugs torn back--Ward immediately returned home and asked his wife to inform the authorities and one Reuben Chambers, a fellow worker at the Austing residence. Upon returning to the scene, Ward waited for Chambers' arrival and they entered the house together. Their testimony indicated that 'everything was turned upside down' in the living room and dining room. The same condition prevailed in the two bedrooms. Two parallel scratches on the floor suggested that something heavy had been dragged from the bedroom into the living room and from there through the dining room and kitchen and on out the door. There was a trail of blood from the davenport in the living room to the bathroom and from there to the bedroom where deceased was found on her bed with the sheet and bedspread pulled over her head. Chambers pulled the sheet and spread down. Deceased lay on her back. Her overalls were on the side of the bed, and what appeared to be a man's tee-shirt 'was right up around her neck.' Deceased was seen to have severe bruises; her face, head and chest were turning black. The face and neck were swollen. Blood filled her mouth and eyes and extended downward over her chest where a bloody mark resembling a footprint was plainly visible below the left breast. Deceased was not heard to speak at any time although she was alive. The two dogs, allegedly vicious, lay cowering in different parts of the house and took no notice of those inside the residence.

Deceased was immediately removed to Our Lady of Mercy Hospital. Upon arrival at the hospital, it became evident that deceased's throat was swollen to such an extent that an emergency tracheotomy became necessary in order to enable her to breathe. X-rays were taken which showed no evidence of fracture of any bones. However, deceased's condition was so serious that no attempt to take x-rays by the usual professional standards was made, and for that reason they were considered as only preliminary by Dr. Elam, the attending physician.

On May 9, 1963, deceased, who had greatly improved, fell while attempting to get out of bed and struck her head against an airconditioning unit. On the following day, May 10, further X-rays revealed a fracture of the right cheeckbone and jawbone. Nevertheless, by May 20, 1963, Dr. Elam was planning to discharge deceased when she suddenly died. The immediate cause of death is agreed to have been a massive pulmonary embolism (a blood clot in the lungs), although expert medical testimony varied as to whether the beating received by deceased on the night of May 5, 1963, was the proximate cause of death.

Investigation of the Austing home revealed no fingerprints. However, police discovered that the telephone lines to the house had been cut from the outside. Later it was determined that a pair of wooden shoes, a rifle and affixed bayonet, several saddles, a revolver and a safe were missing from the premises.

In response to a call from the Clermont County Sheriff's Department on May 8, the Loveland police found a safe in a ravine near Ibold Road that had been opened and apparently burned. The missing pair of wooden shoes and a wedge were lying nearby. The wedge was identified by one Addison Croston, who testified that it had been in his possession and used by him on many occasions for four, five or six years. This witness testified further that on May 5, 1963, one Elmer Miller, a defendant herein, had come to his house very late, around midnight, and had borrowed this particular wedge and another, along with a sledgehammer.

The evidence shows further that Miller and one Lester Swiger, another defendant herein, had visited the Austing residence at approximately 6:00 o'clock on the evening of May 5, 1963, Miller wishing to purchase some real estate belonging to deceased. Miller and Swiger remained some 20 to 30 minutes before departing.

Testimony of Lieutenant Vogel of the Hamilton County sheriff's office showed that he traveled to Los Angeles, California, on May 29, 1963. Miller and Swiger had been arrested in that city and were then in the Central Headquarters of the Los Angeles Police Department. A conversation ensued between these two defendants and the officers present. It was recorded. This recording was admitted into evidence at the trial of both Miller and Swigher. It will be referred to herein as recording No. 1.

From the conversation in Los Angeles, the officers learned that a third man, Curtis Bellamy, the third defendant herein, was involved in the incident. He was apprehended. On the evening of May 31, 1963, Miller and Swiger were brought back from Los Angeles, and all three men were present at the Hamilton County Police Department. At this time, another conversation took place and was recorded. This conversation consisted of a round-table discussion involving all three defendants and the police officers. This recording was admitted into evidence in all three trials, in whole or in part, and will be referred to herein as recording No. 2.

The third recording in these cases, consisting of a conversation between Bellamy and the police officers at the Hamilton County Police Department on May 31, 1963, was admitted into evidence only in the trial of Bellamy himself. It will be referred to herein as recording No. 3.

These three recordings will be treated separately and in more detail in the opinion.

The three defendants herein were separately tried in the Common Pleas Court of Hamilton County. Swiger having waived a jury was found guilty of first degree murder without a recommendation of mercy by a three-judge panel. Bellamy and Miller were each found guilty of first degree murder without a recommendation of mercy by their respective juries.

Separate appeals were taken to the Court of Appeals. That court affirmed the judgment of the Court of Common Pleas in each instance.

The three causes are consolidated herein and are before this court upon the allowance of motions for leave to appeal.

Melvin G. Rueger, Pros. Atty., for appellee.

Albert A. Rogoff, Robert L. Davis, Loyal S. Martin, Joseph F. Weinle, Frank J. Longano, Cincinnati, and Flach Douglas, Milford, for appellants.

MATTHIAS, Judge.

The defendants herein have made three joint contentions. They shall be considered in the following order:

(1) The trauma of May 5, 1963, was not the direct and proximate cause of the victim's death.

(2) The state of Ohio did not prove beyound a reasonable doubt that the defendants had a purpose or intent to kill deceased.

(3) The defendants were denied their constitutional rights, specifically, the right to counsel and the right to confront the witnesses against them.

In addition the defendants have made separate contentions, considered in the following order:

(4) Defendant Miller argues that the trial court committed error in overruling his motion for a change of venue on the grounds of adverse publicity.

(5) Defendant Swiger argues that prejudicial error was committed when the prosecutor asked him whether he had raped deceased.

(6) Defendants Swiger and Bellamy contend that error was committed when the trial court allowed the state to use expert medical testimony in rebuttal.

Defendants contended that the trauma administered to deceased on the night of May 5, 1963, was not the proximate cause of death. The state cannot, and does not, take issue with the proposition that a necessary element in a conviction of murder in the first degree is that the death which resulted was proximately caused by something that was done by defendant. State v. Cochrane (1949), 151 Ohio St. 128, 84 N.E.2d 742. Defendants herein have offered the expert evidence of physicians in order to show that the beating deceased received on the night of May 5, 1963, was not the proximate cause of her death. The state has offered evidence similar in nature but to the effect that the defendants' acts were, in fact, the proximate cause of the death. Therefore, in considering the issues in the light most favorable to the defendants, the most that can be said is that there is conflicting expert testimony as to a material element upon which reasonable minds may reach different conclusions.

In addition the records undeniably show that deceased died from a massive pulmonary embolism, that the embolism could form in any person if that...