State v. Wilkinson

• Decision Date: 05 February 1969
• Docket Number: No. 68-170,68-170
• Citation: 17 Ohio St.2d 9,244 N.E.2d 480
• Parties: , 46 O.O.2d 114 The STATE of Ohio, Appellee, v. WILKINSON, Appellant.
• Court: Ohio Supreme Court

Page 9

17 Ohio St.2d 9

244 N.E.2d 480, 46 O.O.2d 114

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

No. 68-170.

Supreme Court of Ohio.

Feb. 5, 1969.

Syllabus by the Court

1. A preliminary examination is not required where there is an indictment on the charge for which defendant was arrested. Section 2937.34, Revised Code, construed.)

2. A defendant may be guilty of blackmail because of a demand for certain money, accompanied by a threat to the wellbeing of a person's family, and also be guilty of larceny by trick because he obtained possession of the same money with the consent of the person from whom it was obtained which was induced by a false or fraudulent representation.

3. It is not a cruel and unusual punishment for a defendant to be sentenced to consecutive terms for separate statutory crimes.

Defendant Thomas Wilkinson, appellant herein, and codefendants Larry Burns and Houston Maynard were indicted by the grand jury of Highland County in one count for larceny by trick, in a second count for obtaining property by false pretenses, and in a third count for blackmail.

Defendant and each of his codefendants entered pleas of not guilty to these counts.

During their joint trial before a jury, the trial court dismissed the second count. Thereafter, the jury returned verdicts of guilty on the first and third counts against defendant and his codefendant Maynard and found the other codefendant Burns not guilty.

Defendant's motion for new trial was overruled, and the Common Pleas Court senteced defendant on the first and third counts.

The judgment of the Common Pleas Court was affirmed by the Court of Appeals.

The cause is now before this ocurt as an appeal claimed to involve a constitutional question and pursuant to the allowance of a motion for leave to appeal.

Other facts are stated in the opinion.

John O. Crouse, Pros. Atty., for appellee. Wilson, Wilson & Wilson and Charles H. Wilson, West Union, for appellant.

TAFT, Chief Justice.

Defendant's first complaint is that he was denied a preliminary examination and a bill of particulars, and thus that he was not affored the right to be informed of 'the nature and cause of the accusation' against him, as required by the Sixth Amendment to the Constitution of the United States and by Section 10 of Article I of the Ohio Constitution.

On March 12, 1966, the claimed victim of the crimes, with which defendant was charged, filed an affidavit in the Hillsboro Municipal Court, charging defendant with larceny by trick, and that court ordered a preliminary examination. However, defendant was indicted before the date set for that examination, and Section 2937.34, Revised Code, which provides for an examining court where there is no indictment, no longer applied. See paragraph one of the syllabus in Kendle v. Tarbell (1873), 24 Ohio St. 196; White v. Maxwell (1963), 174 Ohio St. 186, 188, 187 N.E.2d 878; Crider v. Maxwell (1963), 174 Ohio St. 190, 192, 187 N.E.2d 875.

With respect to this complaint, defendant contends further that he was not furnished with a bill of particulars elaborating the offenses charged in the indictment, as ordered by the Common Pleas Court of Highland County. Section 2941.07, Revised Code, provides for a bill of particulars, as follows:

'* * * The prosecuting attorney, if seasonably requested by the defendant, or upon order of the court, shall furnish a bill of particulars setting up specifically the nature of the offense charged.'

Although defendant was arrested in April 1966 under this indictment, and the trial date of November 21, 1966 was set by an entry of the court on August 9, 1966, following an oral application by defendant's counsel to set as date for trial, the motion for a bill of particulars was not filed until October 27, 1966. This was hardly a seasonable request within the meaning of the above-quoted statute. The delay also tends to indicate that defendant was not ignorant of 'the nature of the offense charged.' Rather, as stated by the Court of Appeals, 'it is evident that defense counsel wanted evidence given to them. This is not required of the prosecution.'

The Common Pleas Court sustained the motion for a bill of particulars as to several requests relating to each count in an order on November 16, 1966, and a bill of particulars was filed in compliance therewith on November 18, 1966. On that same date a copy was furnished defendant's counsel. In our opinion, there is no merit to defendant's first complaint.

The defendant's second complaint is that he was 'not reasonably notified of his trial date,' and was then forced to stand trial while ill and insufficiently prepared. As already indicated, the November 21, 1966 trial date was set at defendant's request on August 9, 1966, and an entry was filed to this effect. Counsel for defendant filed a motion for a separate trial and to sever the counts of the indictment. This was sustained only as to severance.

It was argued that counsel could reasonably rely upon an oral remark of the clerk of the Common Pleas Court, to the effect that defendant Wilkinson would not be tried with his codefendants, but there was never any order of the court or entry other than that setting the joint trial date of November 21, 1966. Also, the record indicates that defendant's counsel realized that the court intended to proceed with the trial on that date. On November 21, he filed a motion for continuance, specifying several grounds therefor. There is not mention of the clerk's statement in that motion. Thus, it is too late upon appeal to rely upon any such statement as a basis for any such motion for continuance.

One ground specified in that motion of November 21 for a continuance was that defendant was too ill to attend his trial.

Section 2945.02, Revised Code, provides in part:

'* * * No continuance of the trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance.'

As evidence in support of defendant's claimed physical disability, a statement from a local physician was introduced which identified defendant's affliction as a urinary bladder infection, with an 'urgency to urinate.' However, the doctor did not recommend delaying the trial and merely noted that sitting in court for long periods of time would be detrimental to defendant's health. Another physician concurred in the diagnosis, and both physicians agreed that defendant could sit in the courtroom, with frequent relief intervals. In the course of the trial, defendant was provided with frequent opportunities to relieve himself. We cannot conclude that the court unreasonably denied the requested continuance.

The third complaint of defendant is that pre-trial publicity identified the defendant's as members of a 'notorious gang,' and that the presence of a large number of uniformed officers at the opening of trial and the statements of a prosecuting witness, characterizing defendant as threatening the entire town, served to prejudice the jury against defendant. The record does not indicate that any of the empaneled jurors had any prejudice resulting from any adverse publicity against defendant; and there was no motion by defendant for a change of venue. In fact, the newspapers referred to as reflecting adversely on defendant were out-of-town papers. Upon motion of defendant's counsel, and prior to completion of the voir dire, the recognizable officers in attendance were reduced to three. The objectionable testimony was stricken and the jury was directed to disregard it. There is no merit to this complaint.

The fourth complaint of defendant requires an explanatory statement as to the nature of the fraudulent scheme with which defendant was charged. The evidence tended to prove that defendant and his codefendants were working a variation of what is colloquially referred to as the 'green goods' racket. The defendants claimed that, if United States currency, in the denomination of $100,...