State v. Thayer , 22711.

• Court: United States State Supreme Court of Ohio
• Citation: 124 Ohio St. 1,176 N.E. 656
• Docket Number: No. 22711.,22711.
• Parties: STATE v. THAYER.
• Decision Date: 27 May 1931

124 Ohio St. 1
176 N.E. 656

STATE
v.
THAYER.

No. 22711.

Supreme Court of Ohio.

May 27, 1931.

Error to Court of Appeals, Stark County.

Albert L. Thayer was convicted for soliciting a bribe. Conviction was reversed by Court of Appeals, and the State brings error.-[By Editorial Staff.]

Affirmed.

Syllabus by the Court.

[Ohio St. 1]The trial court, in a criminal case, appointed an able lawyer of high personal character and good reputation, well known to the jury, as special counsel to assist the prosecuting attorney in the trial of the case. That special counsel, in an address to the jury said: ‘Now, I can say this to you, Ladies and Gentlemen of the Jury, as an attorney, I probably would in some cases, defend a man even though he were guilty, and do everything that I could to see that he got all his legal rights as a defendant, but I will also say, and I am saying it from the bottom of my heart, that unless the investigation that I would make before giving my consent to go into a case as special prosecutor, convinced [Ohio St. 2]me that I was justified in taking that side of the case, I would never-I would never accept the appointment to prosecute a man that I believed from the investigation was innocent of the charge.’ Counsel for the accused promptly objected and moved the court order a mistrial; thereupon the prosecuting attorney said: ‘We feel that it is entirely just in the light of the evidence.’ The court overruled the motion for mistrial and exception was saved.

Held: The statement of special counsel to the jury was misconduct, highly prejudicial to the accused, and the action of the trial court in overruling the motion of accused for a mistrial was prejudicial error which necessitated a reversal of the judgment entered in that court.

James M. Aungst, Pros. Atty., William B. Quinn, H. Clifton Graybill, and Donald V. Bennett, all of Canton, for the State.

Black, McCuskey, Ruff & Souers, and Amerman & Mills, all of Canton, Pa., Walter L. Braham, of New Castle, Pa., and Donald K. Merwin, of Canton, for defendant in error.

KINKADE, J.

This is a criminal case. The defendant in error, Thayer, was indicted by the grand jury of Stark county pursuant to section 12823. General Code, for having solicited a bribe of $7,500 from the president of a building company that was employed to erect a public hospital for that county, pursuant to plans and specifications drawn by Thayer and under his superintendence as architect.

Thayer was convicted in the common pleas court and judgment of sentence entered against him. He [Ohio St. 3]prosecuted error to the Court of Appeals, assigning numerous grounds of error. The Court of Appeals reversed the judgment of the trial court upon two grounds, and remanded the case for a new trial. The state prosecutes error to this court.

[176 N.E. 657]

The trial court excluded as incompetent two letters offered by Thayer to sustain his defense, which he had written to the building commission about two years after the time fixed in the indictment when the bribe was committed. The trial court held these letters were self-serving in character, and too remote to be of any importance in the case. The Court of Appeals found the letters to be competent, stating reasons why, and that the action of the trial court in excluding them was prejudicial error. We concur in the conclusion reached and action taken by the appellate court with respect to these letters.

The trial court excluded the testimony of certain witnesses offered by Thayer for two purposes: First, to establish an alibi; and, second, to contradict testimony offered by the state tending to establish that Thayer was in Stark county at the time named in the indictment. Thayer contended that at the time named in the indictment he was not in Stark county, but was in Canada on a fishing trip with witnesses whose testimony he was offering in support of his defense of alibi. The trial court rejected this testimony because the fact was admitted by Thayer that he had not given the prosecuting attorney before trial the notice required by section 13444-20, General Code, known as the alibi law.

The Court of Appeals held that Thayer was not required to give such notice for two reasons, that is to say: First, that section 13444-20 is unconstitutional;[Ohio St. 4]and, second, that even if it were constitutional, the testimony could not rightfully be excluded although it tended to establish an alibi, because the evidence offered was competent on the other ground, that it tended to contradict testimony offered by the state in support of the charge in the indictment.

We cannot concur with the Court of Appeals in the reasons assigned by that court to sustain the unconstitutionality of section 13444-20. This law pertains to a very important feature of the criminal law. It gives the state some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it quite impossible for the state to ascertain any facts as to the credibility of the witnesses called by the accused, who may reside at some point far distant from the place of trial. Thayer was not denied the right to testify himself fully as to his whereabouts at the time covered by the indictment. To admit such testimony from other witnesses on the ground that it tends to contradict testimony offered by the state is simply an indirect way of nullifying the statute entirely. Manifestly any alibi testimony must, in the very nature of things, contradict the evidence offered by the state, for the obvious reason that if the accused was not in the county and state at the time named in the indictment, then he cannot be guilty as charged, excepting, of course, instances in which he has aided or abetted or induced another to commit the crime during his absence from the place of the crime.

There is another claimed error calling for the reversal of the judgment of conviction entered by the [Ohio St. 5]trial court. The trial court appointed a very able lawyer to assist the prosecuting attorney in the trial of this case. This assistant was a man of high standing, both social and professional, in that locality, a man well known and widely known, who no doubt was well known to the members of the jury. It is claimed that certain statements of this assistant prosecuting attorney, made in the presence of the jury, were highly prejudicial to the accused. We quote one of these statements in full: ‘Now, I can say this to you, Ladies and Gentlemen of the Jury, as an attorney, I probably would in some cases, defend a man even though he were guilty, and do everything that I could to see that he got all his legal rights as a defendant, but I will also say, and I am saying it from the bottom of my heart, that unless the investigation that I would make before giving my consent to go into a case as special prosecutor, convinced me that I was justified in taking that side of the case, I would never-I would never accept the appointment to prosecute a man that I believed from the investigation was innocent of the charge.’

This was said directly to the jury. Counsel for the accused at once objected to the statement, and moved the court to declare a mistrial on account of this statement; and the prosecutor then said, in the presence of the jury, ‘We feel that it is entirely just in the light of the evidence.’ The court overruled the motion, to which exceptions were saved.

The statement of the assistant prosecutor...