Wickline v. Alvis

• Decision Date: 05 March 1957
• Citation: 144 N.E.2d 207,103 Ohio App. 1
• Parties: , 3 O.O.2d 105 WICKLINE v. ALVIS, Warden.
• Court: Ohio Court of Appeals

Page 1

103 Ohio App. 1

144 N.E.2d 207, 3 O.O.2d 105

WICKLINE v. ALVIS, Warden.

Court of Appeals of Ohio, Franklin County.

March 5, 1957.

Syllabus by the Court

1. The grand jury, in inquiring into crimes and offenses and returning indictments, does not exercise a judicial function.

2. An indictment and subsequent proceedings based thereon are not rendered invalid on the ground that illegal and incompetent testimony was heard by the grand jury which voted such indictment.

James B. Albers, Columbus, for petitioner.

William Saxbe, Atty. Gen., and Louis H. Orkin, University Heights, for respondent.

BRYANT, Judge.

This is an action originating in this court seeking a writ of habeas corpus. It was brought by Dempsey Wickline, who in 1950 was found guilty of murder in the first degree by a jury in Lawrence County and, mercy having been recommended, was sentenced by the Common Pleas Court to life imprisonment in the Ohio Penitentiary. We are informed that upon appeal the conviction was affirmed by the Court of Appeals.

Wickline, in this proceeding, raises no question with respect to his trial. His sole objection is based upon his claim that illegal and incompetent testimony was heard by the grand jury which voted to indict him for murder in the first degree. Wickline says that he killed Mrs. Wickline's father after a quarrel. He says further that the hostility between himself and Mrs. Wickline, already intense, was made even more acute by the killing of his father-in-law and that Mrs. Wickline has since divorced him.

Wickline says he learned in 1956 for the first time that his wife appeared and testified before the grand jury which returned the indictment against him, and it is his claim that her testimony rendered null and void all subsequent proceedings in his case, including the indictment, the jury verdict and the sentence by the court. Hence, it is Wickline's claim that he is detained under a void sentence and is entitled to his release.

The objection raised by Wickline is based upon the common-law rule relating to the incompetency of one spouse to testify for or against the other. The rule is stated in 58 American Jurisprudence 220, Witnesses, Section 357, as follows:

'It is an established rule of the common law, adopted for the protection of the institution of marriage, that neither party to a marriage may be a witness in favor of or against the other * * *.'

In 42 Ohio Jurisprudence 222, Witnesses, Section 216, it is said:

'At common law there were two important rules relating to the competency of the testimony of husband and wife. One referred to privileged communications in actions where they were competent witnesses. The other made the husband or wife wholly incompetent to testify in a case in which the other was a party, either for or against him or her. * * *'

The common-law rules have been modified in many important respects by laws passed by the Legislature of Ohio dealing with this subject. Our attention has been called to Sections 2317.01 and 2317.02, Revised Code, which provide:

Section 2317.01:

'All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.'

Section 2317.02:

'The following persons shall not testify in certain respects:

* * *

* * * '(C) Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness; and such rule is the same if the marital relation has ceased to exist; * * *.'

With respect to the effect of the above civil evidence statutes, in 42 Ohio Jurisprudence 229, Witnesses, Section 224, it is said:

'The Ohio statute provides that all persons are competent witnesses, with certain enumerated exceptions, which include husband and wife with respect to communications by one to the other or acts done by either in the presence of the other during coverture not made or done in the presence or hearing of a third person competent to be a witness. Under these provisions, husband and wife are held to be competent witnesses for and against each other except as to the matters therein specified. * * *'

Thus it will clearly appear that in civil cases the common-law rule has been materially changed by the enactment by the Legislature of the above-quoted sections of the chapter on evidence.

The grand jury inquest and voting of a murder indictment are in the field of criminal procedure and, hence, applicable criminal statutes must be considered. It will be recalled that in 1929, the Legislature enacted what was known as the Code of Criminal Procedure of Ohio (113 Ohio Laws, 123). This was a comprehensive codification of the law on this subject which covered the entire field of criminal procedure. A few years later, the Ohio Supreme Court decided that this Code of Criminal Procedure had pre-empted the entire field and that criminal procedure in Ohio, as a result, is entirely statutory, holding in the fifth paragraph of the syllabus of State v. Whitmore, 126 Ohio St. 381, 185 N.E. 547, 548, as follows:

'5. An accused person has no common-law rights in Ohio, as there are neither common-law crimes nor common-law criminal procedure in this state. Key v. Vattier, 1 Ohio 132; Winn v State, 10 Ohio 345; Allen v. State, 10 Ohio St. 287; Smith v. State, 12 Ohio St. 466; Mitchell v. State, 42 Ohio St. 383; and Johnson v. State, 66 Ohio St. 59, 63 N.E. 607, 61 L.R.A. 277, approved and followed.'

In the opinion in the Whitmore case, by Stephenson, J., 126 Ohio St. at page 388, 185 N.E. at page 551, it is said:

'True, we have followed the common law in some of our statutory definitions of crimes and offenses, and we have adopted some of its criminal procedure. We have a right to, and do, recur to it for the light it may give in the construction of these statutes, but not for any right it affords to one accused of crime, for it affords none.'

See, also, Municipal Court of Toledo v. State ex rel. Platter, 136 Ohio St. 103, 184 N.E. 1, in which the first paragraph of the syllabus is as follows:

'1. Criminal procedure in this state is regulated entirely by statute, and the state has thus created its system of criminal law covering questions of crime and penalties, and has provided its own definitions and procedure.'

Two sections in the Code of Criminal Procedure have a direct bearing on the question of evidence in criminal cases. They are Section 2945.41, Revised Code, making the rules of evidence in civil cases, where applicable, govern in all criminal cases and Section 2945.42, Revised Code, making the husband and wife competent witnesses on behalf of each other in all criminal prosecutions and competent witnesses to testify against each other in a few specifically named cases.

Section 2945.41, Revised Code, provides as follows:

'The rules of evidence in civil causes, where applicable, govern in all criminal causes.'

Section 2945.42, Revised Code, provides in part as follows:

'* * * Husband and wife are competent witnesses to testify in behalf of each other in all criminal prosecutions, and to testify against each other in all actions, prosecutions, and proceedings for personal injury of either by the other, bigamy, or failure to provide for, neglect of, or cruelty to their children under sixteen years of age. A wife may testify against her husband in a prosecution under Section 3113.01 or 3113.03 of the Revised Code for neglect or abandoment of such wife. * * * Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, or bigamy, or failure to provide for, or neglect or cruelty of either to their children under sixteen years of age, or neglect or abandonment of such wife under such sections. * * *'

From a consideration of the statutes set forth above, it is plain that if Mrs. Wickline had appeared and testified before the grand jury for--that is, on behalf of--her husband, no complaint could be made by Wickline, because of express language of Section 2945.42, Revised Code. But Wickline says that he and his wife were on bad terms before the killing of her father took place and that afterwards she was hostile and embittered. There was some hearsay testimony concerning a statement by a relative to Wickline as to the damaging testimony given by Mrs. Wickline before the grand jury. Just how this relative broke the secrecy of the grand jury and was able from his own eyes and ears to tell what Mrs. Wickline said to the grand jury is not brought out.

The only other evidence seeking to prove that Mrs. Wickline testified against Wickline at the grand jury inquest consists of two documents, one a certificate by the clerk of the Common Pleas Court that Mrs. Wickline was present at the grand jury inquest and was paid one dollar as a witness fee and the other an affidavit by the man who was prosecuting attorney at the time of the indicment and trial of Wickline, to the effect that Mrs. Wickline testified, that her testimony was material and that without her testimony there might have been no indictment. As neither the clerk of courts nor his deputy are entitled to be with the grand jury when it is in closed session, the clerk's certificate is merely some evidence she was present and received a witness fee.

The prosecuting attorney likewise is sworn to secrecy and that is just as binding after the end of his term as at any other time. His duty was to retire during discussion and voting, and his...