State v. Williams

• Decision Date: 03 July 1974
• Docket Number: No. 74-39,74-39
• Citation: 313 N.E.2d 859,39 Ohio St.2d 20
• Parties: , 72 A.L.R.3d 240, 68 O.O.2d 12 The STATE of Ohio, Appellant, v. WILLIAMS, Appellee.
• Court: Ohio Supreme Court

Page 20

39 Ohio St.2d 20

313 N.E.2d 859, 72 A.L.R.3d 240, 68 O.O.2d 12

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

No. 74-39.

Supreme Court of Ohio.

July 3, 1974.

Syllabus by the Court

1. In the great majority of cases, a complaining party must timely object to the error he feels is being committed, and must, upon review, demonstrate that he has been prejudiced by its commission. (Paragraph three of the syllabus in State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545, and paragraph one of the syllabus in Smith v. Flesher, 12 Ohio St.2d 107, 233 N.E.2d 137, approved and followed.)

2. A noncapital felony conviction will not be reversed for error in permitting the jurors to separate from lunch after the case has been submitted to them, where it is not shown that the defendant was thereby prevented from having a fair trial and where the defendant did not object to the separation. (R.C. 2945.33, construed; Parker v. State, 18 Ohio St. 88, modified; paragraph two of the syllabus in Cantwell v. State, 18 Ohio St. 477, overruled.)

In April 1971, appellee was indicted for obtaining the property of another by false pretense and with intent to defraud, in violation of R.C. 2911.01. Appellee pleaded not guilty and trial was had before a jury in the Court of Common Pleas. The case was submitted to the jurors for their deliberation on November 7, 1972, at 9:45 a. m., and they returned to the courtroom at 11:45 a. m., not having reached a verdict. Without objection from appellee and after receiving cautionary instructions from the court, ¹ the jurors were permitted to separate for lunch. They were not under the charge of an officer of the court. The jury resumed its deliberations at 1:00 p. m., and returned a verdict of guilty 45 minutes later. Appellee was subsequently sentenced to be incarcerated for a period of not less than one nor more than three years.

In the Court of Appeals, appellee argued that permitting the jurors to separate for lunch after the case had been submitted to them constituted reversible error, and that no objection was necessary to preserve the question for appeal. The Court of Appeals so held, reversed the judgment of the Court of Common Pleas and remanded the cause for further proceedings.

On December 28, 1973, the state filed a motion in the Court of Appeals seeking certification of the case to this court on the grounds that the judgment of the Court of Appeals was in conflict with the judgment of another Court of Appeals. On January 10, 1974, the motion was granted, the journal entry of the Court of Appeals reading, 'Appellee's motion to certify case to the Supreme Court on grounds of conflict allowed.'

Thomas J. Carnes, Ravenna, for appellant.

J. Franklin Spruill, Akron, for appellee.

HERBERT, Justice.

By virtue of Section 6, Rule III of this court's Rules of Practice, when a case is certified to this court upon the constitutional basis of conflict, the rule of law upon which that conflict exists must be 'clearly set forth in the journal entry or opinion of the Court of Appeals;' otherwise, a remand to the Court of Appeals can result. See Masheter v. Hoffman (1971), 26 Ohio St.2d 267, 271 N.E.2d 259. However, we note that appellee was arraigned upon his indictment on April 12, 1971, for a crime he was found to have committed on or about November 6, 1970. The reason for this sad delay does not appear in the record, but we are constrained not to add to it.

The question before us is whether the trial court's violation of R.C. 2945.33 requires reversal of the conviction entered in the proceeding, even though the record contains no indication that the defendant was thereby prevented from having a fair trial, and it is agreed that the defendant did not object to the trial court's action.

R.C. 2945.33 provides:

'When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. The court, except in cases where the offense charged may be punishable by death, may permit the jurors to separate during the adjounment of court overnight, under proper cautions, or under supervision of an officer. Such officer shall not permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. Such officer shall not communicate to any person, before the verdict is delivered, any matter in relation to their deliberation. Upon the trial of any prosecution for misdemeanor, the court may permit the jury to separate during their deliberation, or upon adjournment of the court overnight.

'In cases where the offense charged may be punished by death, after the case is finally submitted to the jury, the jurors shall be kept in charge of the proper officer and proper arrangements for their care and maintenance shall be made as under section 2945.31 of the Revised Code.'

This statute, or its predecessors, has previously been before this court. In Parker v. State (1868), 18 Ohio St 88, the trial court, with defense counsel's consent, permitted the jurors to separate for meals after the case had been submitted. This court reversed the conviction, holding that the common law prohibited separation under those circumstances. Additionally, the court noted that although court-appointed defense counsel had consented, the defendant was not present, had no knowledge of the proposed separation and gave no consent thereto. Furthermore, it was observed that a defendant, either personally or through his counsel, should not be put in the position of having to refuse consent to juror separation udner circumstances which would excite 'unkind feelings in the breasts of jurors who held his fate in their hands.' Id., at page 91.

The following year, subsequent to the adoption of the Code of Criminal Procedure, Cantwell v. State (1869), 18 Ohio St. 477, was decided. Interpreting the new code, the court held that it was error for a trial court to permit jurors trying felonies to separate at any time after being sworn. Adhering to Parker, supra, the court also held that the defendant's consent to such separation was irrelevant.

As can be seen, under both the common law and the 1869 Code of Criminal Procedure, criminal court jurors were forbidden to separate from the time they were sworn until after being discharged. However, over the years the General Assembly relaxed the rigidity of this rule, and in Warner v. State (1922), 104 Ohio St. 38, 135 N.E. 249, this court addressed itself to the statute as it was then worded.

Warner involved certain jury admonishment requirements then in the statute, as opposed to the separation aspects of the enactment. However, by that time the law clearly permitted separation during adjournment of court overnight, either before or after submission, and it was also apparently interpreted to allow separation at any time before submission, provided the statutory admonitions were given jurors by the trial court. The record in Warner established that the jurors had been admonished, but not in accordance with the statute. The syllabus of that case states:

'The failure by a court to perform its statutory duty of admonishing the jury concerning their conduct while separated during the trial, does not constitute reversible error, where it is not shown that the jury were in fact guilty of misconduct or indiscrections and where it further appears that counsel for plaintiff in error observed the omission and did not call the attention of the court thereto.'

At page 42, 135 N.E. at page 250, in the opinion in Warner, the Parker case was discussed, as follows:

'* * * In the case of Parker v. State, 18 Ohio St. 88, it was held reversible error to permit the jury to separate after the cause was submitted, even though counsel for the prisoner consented thereto. If the declarations in that case should be held to be sound at this time, it must be regarded as an authority entitled to great weight in the instant case, because it will be found that the provision requiring the jury to be kept together after submission is contained in section 13688, General Code, and is couched in the same peremptory language as that portion of the section hereinbefore quoted. We do not think, however, that that case is consonant with the modern doctrine of disregarding those technical rules and irregularities which do not materially affect the substantial rights of the defendant. That case was decided at the December, 1868, term of this court, and before the Criminal Code had been enacted. The Criminal Code was enacted May 6, 1869, and in Section 192 of that Code, now section 13745, General Code, statutory provision was for the first time made for specific grounds of new trial in criminal cases, and the law was then enacted as it has ever since existed that a new trial may be granted on the application of the defendant 'for any of the following causes affecting materially his substantial rights.' So far as we can discover, this question has not since 1868 been argued in this court, and if that question was presented in the instant case we would refuse to be bound by the authority of Parker v. State, supra. We are compelled to make this comment, because it must be conceded that the principle in that case is identical with the principle in the case at bar. Whether this court would have so decided the case of Parker v. State if the court had been limited to only those reasons 'affecting materially his substanmtial rights' we cannot say at this time, but we do have the right to say that this court would not at this time so decide. * * *'

Although Cantwell v. State, supra (18 Ohio St. 477), is not mentioned, it can safely be assumed that the Warner court was equally disenchanted with the result announced in Cantwell.

The ratio decidendi of Warner prevails as the law today. In the great majority of cases, a complaining part...