State v. Tudor

• Decision Date: 22 November 1950
• Docket Number: No. 32279,32279
• Parties: , 43 O.O. 130 STATE v. TUDOR.
• Court: Ohio Supreme Court

Page 249

154 Ohio St. 249

95 N.E.2d 385, 43 O.O. 130

STATE v. TUDOR.

No. 32279.

Supreme Court of Ohio.

Nov. 22, 1950.

Syllabus by the Court

1. Where a trial court gives an instruction in answer to an inquiry of the jury which instruction is incomplete but correct as far as it goes, counsel has the duty to request the trial court to charge further so as to eliminate any possible confusion of the jury which may result from the incompleteness of such instruction. Any failure to charge further, if it is error, is an error of omission and not of commission. Unless counsel has requested the court to supply the omission, such error will not ordinarily justify reversal even in a criminal case.

2. Where a jury's inquiry, as to when a defendant could be pardoned after a conviction of first degree murder with recommendation of mercy, indicates concern as to the lapse of time before such defendant might secure his freedom and where, in answer to that inquiry, the trial judge first tells the jury that the law had been that such a person could 'not be recommended for pardon or parole, except upon proof of innocence established beyond a reasonable doubt,' there is no prejudicial error of commission if the trial judge further states to the jury that such law has been changed and that now such a prisoner is eligible for parole after the expiration of 20 years.

Defendant was indicted and tried for the first degree murder.

After the jury had been deliberating for about two hours, it made a written request of the trial judge. So far as material to a consideration of this appeal, the following shows what the request was and how it was answered by the trial judge:

'In which you request the court to 'please explain No. 2 verdict, murder in the first degree with mercy. What would be the sentence? When or could he be pardoned?'

'I take it the jury wishes to be informed upon the law in response to that inquiry.

'* * *

'The jury need not hesitate to make any inquiry to the court, which is proper in this case. It is quite proper to ask for information upon these things, upon which you will be informed.

'Now, I don't know just exactly what information you are seeking, but I will answer first what it seems to be apparent here that you would like to be instructed upon. I will take your last question here, the last line, 'When or could he be pardoned?' Now, the jury wants information upon that.

'* * * 'Well, up until 1945, the law stood this way one convictions for first degree murder with a recommendation of mercy:

"The effect of a recommendation of mercy by the jury will be to transform the penalty of death which follows a conviction of murder in the first degree, without a recommendation of mercy to imprisonment for life, with the further provision, however, that a person found guilty shall not be recommended for pardon or parole, except upon proof of innocence established beyond a reasonable doubt. But this provision does not take away from the Governor of the state his constitutional power to pardon.'

'Now, that was the law of Ohio up until 1945. However, that is no longer the law. There has been another provision enacted, which supersedes the law in that respect. There is now a law upon our statute books, which is Section 2210-1. This became effective October 11, 1945, and is in effect now. It is entitled, 'Prisoners eligible for parole'.

"A prisoner serving a sentence of imprisonment for life for a crime other than treason or murder in the first degree, or a prisoner sentenced for a minimum term or terms, whether consecutive or otherwise, of imprisonment longer than fifteen years, shall become eligible for parole at the expiration of ten full years' imprisonment. * * *'

'That doesn't apply in this case, because it provides at the start, 'A prisoner serving a sentence of imprisonment for life for a crime other than treason or murder in the first degree * * *.' So, this next sentence is the one that would be applicable to this case:

"A prisoner serving a sentence of imprisonment for life for the crime of murder in the first degree, and having maintained a good prison conduct record, shall after having served twenty full years' imprisonment be brought before the pardon and parole commission for a hearing to determine the advisability of a recommendation for commutation of sentence.'

'Then that section follows with some other matters, which pertain to that proceeding. But the point is that a person convicted or murder in the first degree now, with a recommendation of mercy, is eligible for parole after the expiration of 20 years. However, during all of that time, the Governor still has his constitutional right to pardon. That exists at all times and becomes effective as soon as the prisoner is sentenced, and as soon as he begins serving a sentence.

'Do I make that point clear?

'Now, let's see what else you want to know. Number 2 verdict: You want to know what the sentence would be if the defendant were found guilty of murder in the first degree with a recommendation of mercy; is that it?

'Mr. Dargin: You explained that.

'Mrs. Uhlmann: You explained that.

'The Court: Well, I explained that in my charge, also.

'Mr. Dargin: Well, we forgot.

'The Court: You say, 'What would be the sentence?,' and I instructed you in the charge that if the defendant is found guilty of murder in the first degree with a recommendation of mercy, the statute provides that the punishment shall be imprisonment for life. However, as you see, that has been modified by this recent law, which makes him eligible for parole after twenty years.'

The jury retired and thereafter brought in a verdict of guilty of murder in the first degree without recommendation of mercy. After overruling defendant's motion for a new trial, the Common Pleas Court sentenced defendant to death.

The Court of Appeals 92 N.E.2d 33 reversed the judgment of conviction and remanded the case to the Common Pleas Court for a new trial.

Thereupon the state duly filed a motion requesting the Court of Appeals to specify in writing the ground or grounds of reversal of the judgment, as required by Section 12223-39, General Code. The journal entry of the Court of Appeals granting this motion reads in part:

'The court specifies as its ground of reversal that, in response to the question of the jury, 'Please explain Number 2 verdict, murder in the first degree with mercy. What would be the sentence? When or could he, be pardoned?,' the trial judge erred to the prejudice of the defendant in his answer to the interrogatory and in his explanation thereof in the use of this language, 'But the point is that a person convicted of murder in the first degree now, with a recommendation of mercy, is eligible for parole after the expiration of twenty years,' in that the court did not further charge that parole would not be available to the defendant unless and until he obtained a commutation of his sentence by the Governor of Ohio. All of which is more fully and completely discussed in the written opinion of this court released under date of April 11, 1950, and filed with the clerk of the court of Clark county, Ohio, on the twelfth day of April, 1950. That the error heretofore specified is the only and is the error to which reference is made and is the error to which reference is made in the language of the former journal entry of reversal in this case of date April 12, 1950, in which this court 'finds that there is error manifest upon the face of the record in the orders and judgment of said Court of Common Pleas of Clark County, Ohio.''

This court allowed the state's motion for leave to appeal from the judgment of reversal rendered by the Court of Appeals.

Stanley N. Husted, Pros. Atty. and Glenn E. Detling, Springfield, for appellant.

John F. Seidel and Smith, Earhart & Robertson, all of Columbus, for appellee.

TAFT, Judge.

The only justification for giving any answer to this inquiry of the jury, relative to the punishment in an instance where the jury recommends mercy in a case of murder in the first degree, is found in that portion of Section 13442-9, General Code, which reads:

'The court must state to the jury that in determining the question of guilt, it must not consider the punishment but that punishment rests with the judge, as may be provided by law, except in cases of murder in the first degree or burglary of an inhabited dwelling.'

However, it is unfortunate that the trial court ever went into the subject of 'parole.' Cf. State v. Schiller, 70 Ohio St. 1, 70 N.E. 505; State v. Karayians, 108 Ohio St. 505, 141 N.E. 334; Liska v. State, 115 Ohio St. 283, 152 N.E. 667. The jury had not even asked about that. It had simply inquired as to what defendant's sentence would be and whether and when he could be pardoned if convicted of first degree murder with a recommendation of mercy.

The argument of defendant in support of the judgment of the Court of Appeals is based on the contention that the trial court misstated the law when he told the jury that a person convicted of murder in the first degree with a recommendation of mercy 'is eligible for parole after the expiration of 20 years' and that the law now 'makes him eligible for parole after 20 years.'

In arguing that this was a misstatement of the law defendant says:

'* * * One so convicted in Ohio never becomes eligible for parole by mere lapse of time. He becomes eligible only if the Governor of the state, in the exercise of a constitutional prerogative, commutes his otherwise unconditional and unlimited life sentence. The sole and only thing done by the enactment which Judge Davis referred to was to provide a means whereby, after serving 20 full years of such a sentence, and provided, during all this time, the person's prison conduct record was good, the parole board (an administrative body in the machinery of the state penal system) may, but is not required to, refer the prisoner's case for the consideration...