Makley v. State , 49 Ohio App. 359 ( 1934 )

On the twenty-seventh day of October, 1933, Charles Makley, the plaintiff in error, who will hereafter be referred to as defendant, being the relation he appeared in the trial court, was indicted by the grand jury of Allen county, Ohio, under Section 12400, General Code, for the unlawful killing of Jess Sarber, the sheriff of said county, on the twelfth day of October, 1933, the indictment charging murder in the first degree.

Subsequent to January 25, 1934, he was brought from the state of Indiana into Allen county, Ohio. The record does not show whether he was brought into Ohio by extradition proceedings or otherwise, but does show that he was present in the county and state subsequent to January 25, 1934. On the fourteenth day of February, 1934, another indictment was returned by the grand jury of Allen county, Ohio, based on the provisions of Section 12402-1, General Code, charging him with murder in the first degree in the killing of Jess Sarber, sheriff of said county, while he, the said Jess Sarber, was in the discharge of his duties. A plea in abatement was filed to this indictment, which was overruled, and a demurrer was then filed to the indictment, which was also overruled. No request was made for a bill of particulars. Charles Makley was then tried before a jury on this indictment and upon trial was convicted of murder in the first degree without a recommendation of mercy, and sentenced to death. He did not take the witness stand in his own behalf. This error proceeding is brought to set aside the verdict of the jury on said trial and to reverse said sentence.

As shown by the record, for some time prior to September 26, 1933, Charles Makley was a prisoner in the Indiana state prison at Michigan City, Indiana, and in company with Harry Pierpont, Russell Clark, Edward Shouse, John Hamilton and other prisoners, escaped therefrom. For about ten days immediately preceding and including October 12, 1933, one John Dillinger was confined in the Allen county jail, in charge of Jess Sarber, the sheriff of said county, on a charge of robbing a bank located at Bluffton in Allen county. On October 12, 1933, between six and six-thirty o'clock in the evening, Makley, Pierpont and another person whose identity was not established by the record, entered the office of the county jail at Lima, while another person whose identity is not shown by the record, kept watch in front of said jail. Jess L. Sarber, sheriff of Allen county, was sitting at his desk in the jail office with Mrs. Sarber, the wife of the sheriff, and Wilbur Sharp, a deputy sheriff of said county. The sheriff was in charge of the jail and the prisoners and acting in the discharge of his duties as sheriff. Makley, Pierpont and their companion entered the office of the jail from the east door, approached the desk where the sheriff was sitting and said to him that they were officers from Michigan City, Indiana, and desired to see John Dillinger. In reply to that statement the sheriff asked for credentials. Makley and his companions then each produced revolvers and said, "These are our credentials." The sheriff started to rise from his chair and was immediately shot by Pierpont, the bullet entering the left side of his abdomen and passing through, entered his right thigh. He fell to the floor and immediately tried to rise to his elbow, whereupon Makley struck him a severe blow on the head with his revolver. After this, Pierpont struck the sheriff over the head with his revolver. Mrs. Sarber begged Makley and Pierpont to do the sheriff no further injury and she produced the keys to the jail and delivered them to Makley who then in turn forced deputy Sharp to open the doors. Pierpont took possession of a revolver owned by the sheriff. Dillinger was liberated from the jail by Makley, Pierpont and their companion, and Mrs. Sarber and Deputy Sharp were locked in with the prisoners. Makley, Pierpont and their companion, accompanied by Dillinger, left the jail. Approximately two minutes elapsed from the time Makley and his companions entered the jail until they left the same. Sheriff Sarber died about eight o'clock on the evening of October 12, his death resulting from loss of blood and shock caused by the bullet wounds and the blows on his head. Makley, Pierpont, Clark and Dillinger were arrested in Tucson, Arizona, January 25, 1934, and in their possession at the time of the arrest the arresting officers found a well equipped arsenal with revolvers, machine guns, ammunition, bullet-proof vests and other similar equipment, and approximately thirty-six thousand dollars in cash, and the revolver belonging to Sheriff Sarber that was taken from him at the time he was killed.

As shown by the record, the defendant Charles Makley was manacled and shackled through the trial of the case. Members of the National Guard of Ohio, under the command of General Harold Bush, were, under the direction of the trial court and in aid of civil authorities, guarding the court house where the trial was being held and the jail in which the defendant was confined during the period of the trial. A board fence was erected and maintained between the court house and the jail, and admission to the court house and the court room was by means of passes issued under the general supervision of the trial judge and signed by the trial judge and General Bush; all entrances to the court house with the exception of one ground floor door were closed and guards were stationed at this door who were armed and who permitted a person to enter only on pass signed as aforesaid. There were also members of the National Guard on duty in the corridors of the court house, including the corridor on the third floor where the court room is located in which the trial was held, who were armed with machine guns, rifles and riot clubs. A guard was also stationed outside of the public entrance to the court room in which the trial was being held who permitted the entry only of persons carrying passes. No members of the National Guard were stationed in the court room, but during the trial certain deputy sheriffs were stationed there who were armed with revolvers carried in holsters. All persons admitted to the court room, including jurors and prospective jurors, were searched by members of the guard before their admission to the court room. The trial court exercised general supervision over the issuance of passes, and there is no evidence that anyone was at any time refused a pass to the court room. The court room had a seating capacity of ninety persons and persons desiring admission to the court room at times during the trial greatly exceeded the seating capacity of the court room. Persons admitted to the court room were also required to register before proceeding to the court room.

While it does not appear of record in the case, it was generally known within the limits of Allen county, as well as all over the United States, from reports published in newspapers and news magazines throughout the United States, that from the time of the killing of the sheriff until the arrest of John Dillinger, Makley, Pierpont and Clark in Tucson, Arizona, that said persons with others were reputed to have organized and become the members of a gang for the purpose of engaging in bank robbery and other criminal activities and that such gang was reputed to have robbed many banks in the states of Ohio, Indiana, Illinois and Wisconsin, killing a number of law enforcement authorities and causing the wounding and death of other persons while engaged in such nefarious activities; and that said gang had broken into a jail or jails in the state of Indiana for the purpose of stealing, and had stolen, machine guns, bullet-proof vests, revolvers and other equipment for use in their criminal activities; and that a number of persons comprising said gang were experts in the use of machine guns and other firearms; that said gang was equipped with high-powered automobiles, and as a result of their criminal activities were well financed to proceed with further criminal activities; and that John Dillinger had escaped from the jail at Crown Point, Indiana, a short time prior to the trial of this case and was at large before and during the trial thereof.

While it does not appear from the record in this case, it does appear from the record in the error proceeding of Pierpont v.State, on file in this court, 49 Ohio App. 77, which cause was tried in the same court and before the same judge as this cause, that the said John Dillinger had been confined in the Indiana State Prison at Michigan City, Indiana, on a charge of bank robbery and had been paroled from said prison during the spring or summer of 1933, and that on September 26, 1933, Makley, Pierpont, Russell Clark, Shouse, Hamilton, and four other prisoners confined, with the aid of revolvers smuggled into said prison through the efforts of Pierpont, forcibly broke out of said prison, injuring several of the guards thereof, and stole automobiles and made their escape; that from the time of their escape until October 12, 1933, Pierpont, Makley, Clark, Shouse and Hamilton and one Copeland, a paroled prisoner from said institution, had associated and conspired together for the purpose of delivering John Dillinger from the jail of Allen county, which purpose was accomplished on October 12, 1933, as hereinbefore set forth, and that from said date until their arrest in Tucson on January 25, 1934, Makley, Pierpont, Clark, Shouse and Dillinger and other persons had associated together under the leadership of Dillinger, and that they were armed with machine guns, revolvers and other armament.

In his petition in error filed herein, the defendant makes seventy-nine assignments of error, but in his brief filed in this court the errors pointed out, which under the statute and rule of this court will be the only ones considered, are confined to fifteen particulars of error. These particulars of error, except for the fact that five which relate to the same general subject are for the purposes of this opinion combined under one heading, and the particulars of alleged error renumbered accordingly, are as follows:

1. Overruling defendant's plea in abatement.

2. Overruling demurrer to indictment.

3. Overruling motion for change of venue.

4. Refusing requests for continuances.

5. Failure to accord defendant a fair and impartial public trial in accordance with constitutional guaranties.

6. Admission of exhibits.

7. Admission and rejection of evidence and in failure to prove defendant knew deceased was a sheriff.

8. Overruling objections and motions made by defendant.

9. Prejudice, misconduct and abuse of discretion of the court.

10. Misconduct of the prosecuting attorney.

11. Error in the charge of the court to the jury.

The assignments of error will be considered in the order mentioned.

1. Overruling defendant's plea in abatement.

The plea in abatement was based on two grounds. First, that the indictment was returned by the grand jury at the request and direction of the prosecuting attorney; second, that at the time the grand jury returned the indictment there was pending against the defendant, another indictment for the same criminal act, being the indictment in Case Number 7624 in the Court of Common Pleas charging the defendant with murder in the first degree under Section 12400, General Code.

The defendant called two witnesses in support of his plea in abatement, the witnesses being members of the grand jury which returned the indictment. The testimony of one of the witnesses is to the effect that the prosecutor did make some request of the grand jury in connection with the return of the indictment, but he could not state the exact language.

Under Section 13436-7, General Code, the prosecuting attorney has the right to appear before the grand jury for the purpose of giving information in reference to a matter cognizable by it, or to advise upon a legal matter when required. He has the further right to interrogate witnesses when he deems it necessary. The conduct complained of is proper under this provision. The testimony of the witness concerning what was said and done by the prosecutor, if true, would amount to the giving of information relative to a matter properly before the grand jury, and advice concerning the legal questions involved, which the prosecutor had the legal right to do and there is a presumption that the prosecutor acted within the law. The hearing on the plea in abatement was had in the absence of the jury, as shown by the record.

The fact that there was another indictment pending against the defendant at the time the indictment on which the defendant is being tried was returned, in no way operates as a bar to the prosecution under such indictment. The action of the court in overruling the plea in abatement was correct.

2. Overruling demurrer to indictment.

The demurrer to the indictment was based on the ground that the facts stated therein do not constitute an offense against the laws of the state of Ohio.

The indictment upon which the defendant was tried charged the commission of the offense in the following language:

"That Charles Makley, whose real and true name is to the grand jury unknown late of said County, on the 12th day of October in the year of our Lord one thousand nine hundred and thirty three at the County of Allen, State of Ohio aforesaid, unlawfully, purposely, and wilfully killed Jesse L. Sarber, the sheriff of said County of Allen while said Jess L. Sarber, was in the discharge of his duties as said sheriff."

The indictment is based on the provisions of Section 12402-1, General Code, which is as follows:

"Whoever purposely and wilfully kills a sheriff, deputy sheriff, constable, policeman, marshal or inspector appointed under the provisions of section 6212-22 of the General Code, while such sheriff, deputy sheriff, constable, policeman, marshal or inspector is in discharge of his duties, is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life."

The indictment in this case charges a crime in plain, concise and unequivocal language, following the wording of Section 12402-1, General Code. Neither the plaintiff in error nor his counsel could have been misled concerning the language of the charge. No request was made for a bill of particulars, which right is afforded by Section 13437-6, General Code. All of the essential elements of the crime are charged. There is no requirement of law that the word "intent" or "intention" must be used in an indictment or other pleading charging crime. "Purposely" is synonymous with "intentionally". To state that the act was purposely and wilfully done states in plain, understandable language that the act was "intentionally" done.

Section 12402-1, General Code, makes the killing of a sheriff while in the discharge of his duty, the crime of murder in the first degree. The indorsement of the foreman of the grand jury on the indictment was therefore correct.

The amendment to Section 12402-1, General Code, in 1925, by Amended Senate Bill No. 57 (111 Ohio Laws, 77), had the effect of merely adding prohibition inspectors to the general class of public officers mentioned in such sections and did not have the effect of repealing said section. The repeal of the prohibition amendment to the Constitution did not have the effect of repealing said section. The action of the trial court in overruling the demurrer was correct.

3. Overruling motion for change of venue.

On the motion for change of venue, plaintiff in error offered as a witness one Neil Shaw whose testimony and some newspaper exhibits were the only evidence offered on said motion. An examination of this evidence shows that the case against Makley was given as much publicity in every county in Ohio as it was in Allen county. No evidence is offered to show a condition entitling plaintiff in error to a change of venue. In fact, this witness testified that in his opinion Makley could be given just as fair a trial in Allen county as he could in any other county of the state. The ruling on this motion rested in the sound discretion of the trial court and his order overruling the motion was not an abuse of discretion.

4. Refusing requests for continuances.

The first contention of the defendant under this heading, is that the court erred in refusing request of defendant's counsel for a continuance of two or three days to investigate the case, the extradition proceedings and irregularities of the grand jury.

The record shows that the request was made on February 17, 1934, and the case was assigned for trial and trial begun on March 12, 1934, which afforded plaintiff in error ample time to investigate the matter of extradition. The matter of extradition was of itself unimportant in the case since the plaintiff in error was in the jurisdiction of the court, in the court room charged by an indictment with crime under the law of Ohio, and there is nothing in the record to show that the plaintiff in error was extradited from any other state. Consequently there was no error in the order of the court refusing a continuance.

A further contention of the defendant under this heading, is that the record fails to show that he was properly served with a copy of the original venire at least three days before the date of trial, as required by the provisions of Section 13443-1, General Code, and that the record fails to show that a copy of the special venire drawn after the original venire was exhausted was served on him, and that the court erred in refusing motion of defendant for a continuance of three or four days to investigate special venire.

Section 13443-1, General Code, provides as follows:

"When a person indicted for a capital offense pleads not guilty, the clerk, on order of the court, shall draw from the jury wheel, as in other cases, not fewer than 50 ballots, nor more than 75 ballots, as the court shall direct, and issue to the sheriff a venire for the persons whose names are so drawn for the day fixed for the trial; such venire shall be served and returned by the sheriff as in other cases, at least fifteen days before the date so fixed for trial, and a copy of such venire and such return shall be served on the defendant at least three days before the date of the trial."

While the record does not affirmatively show that a copy of the original venire was served on the defendant as required by this section it does not show that it was not served. The record also shows that the defendant proceeded with the examination of jurors comprising this venire, without objection. This being the case, there is no affirmative showing of error prejudicial to the defendant.

There is no requirement of law that where the original venire is exhausted, a copy of a special venire be served on a person charged with a capital offense or that any time be given to the defendant for the examination of such special venire, and it would greatly delay the progress of trials if such practice was required. The new Criminal Code was adopted with a view to facilitating the trial of criminal cases and preventing unnecessary delays, and such a requirement would tend to defeat the purpose for which it was enacted.

As there was no requirement of service of the copy of the special venire at any stated period of time before proceeding with the examination of jurors composing such special venire, the order of the court refusing the continuance was not erroneous.

The case of Caferelli v. State, 12 Ohio App. 91, relied on by the defendant, was based on a statute which was in effect prior to the adoption of the present criminal Code and had no application to the requirements of Sections 13443-1 and 13443-2 of our present Criminal Code.

The other contention of the defendant under this heading relates to the overruling of motions for continuance and objections to proceeding in matters preliminary to the trial proper, and the errors complained of as well as the other claimed errors under this heading hereinbefore referred to, come within the provisions of Section 13449-5, General Code, which is as follows:

"No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court in case of any inaccuracy or imperfection in the indictment, information or warrant, provided that the charge be sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him; nor for any variance between the allegations and the proof thereof unless the accused is misled or prejudiced thereby; nor for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby; * * * nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial."

The provisions of this section are of such character that in order to authorize a reversal of the sentence of conviction for these claimed errors it must affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.

In the case of State v. Moon, 124 Ohio St. 465, 179 N.E. 350, the provisions of Section 13449-5, above referred to, were held to be as mandatory as the provisions of Section 13442-9 of the General Code relating to a charge to the jury on the question of punishment, and it would appear from the reasoning in the opinion in this case, that the provisions of Section 13449-5 are as mandatory as any other provision of the Criminal Code.

The court in the trial of this action strictly followed the provisions of the statute with reference to the periods of time required to elapse between the various steps in the trial, and it does not affirmatively appear from the record that the defendant was prejudiced by the rulings of the court on said motions and objections, and consequently if any error was committed in such rulings, it was not error of such a character as to authorize a reversal.

5. Failure to accord defendant a fair and impartial public trial in accordance with constitutional guaranties.

Under this heading the defendant contends that the court by requiring him to remain manacled and shackled throughout the trial, and by maintaining a military guard at the court house and jail, and a non-military guard in the court room, and using a pass system for the admission of persons, including prospective jurors, to the court house and court room, and causing such persons to be searched prior to their admission to the court room as shown in statement of facts, failed to accord him a fair and impartial public trial as provided by constitutional guaranties.

Ordinarily it is an invasion of the rights of an accused person, to force him to remain shackled during his trial, but the right to be free from bonds is not absolute, and an exception to this rule is concisely stated in 8 Ruling Case Law, 68, Section 22, in the following language:

"It is recognized that it lies within the discretion of the trial court to have the prisoner shackled when it is manifest that such a precaution is necessary to prevent violence or escape, and an appellate court will not revise the trial court's action except in a clear case of abuse of discretion."

See, also, Hall v. State, 199 Ind. 592, 159 N.E. 420;McPherson v. State, 178 Ind. 583, 99 N.E. 984; Blair v.Commonwealth, 171 Ky. 319, 188 S.W. 390.

The case of Hall v. State, supra, is also authority for the proposition that the knowledge upon which a court bases its discretion to refuse the prisoner's request that fetters be removed from his legs, need not come exclusively from evidence offered at the trial, and it would seem clear that upon passing upon such request the court in addition to considering the evidence developed at the trial, would have the right and duty to consider facts developed by the evidence on the trial of an accomplice immediately preceding the trial of the defendant, and should take judicial notice of facts generally known within the limits of its jurisdiction. The principle upon which this conclusion is based is well expressed by Judge Wanamaker in the opinion in the case of Barnett v. State, 104 Ohio St. 298 at page 310, 135 N.E. 647, 27 A.L.R., 351, in the following words:

"What we know as men, having common knowledge, * * * we cannot ignore as judges."

From the record in the case at bar it appears that the plaintiff in error was an escaped convict; that he with his companions had participated in breaking in the county jail and killing the sheriff for the purpose of releasing John Dillinger, a prisoner in said jail, and that at the time of his arrest he was associated with escaped convicts and other men with criminal records who had in their possession machine guns, revolvers, bullet-proof vests and other equipment used in connection with criminal activities. In addition to this, the trial judge had knowledge, from the testimony in the case of the State v.Pierpont, which was tried immediately preceding the trial of this case, of the criminal activities of the defendant, Pierpont, and their associates, and of their desperate and dangerous character. It was also a matter of general knowledge in Allen county, as well as all other sections of the United States, that the defendant was reputed to be a member of a notorious criminal gang known as the John Dillinger gang, which had been engaged in bank robberies, jail deliveries and other activities in Ohio, Indiana, Illinois and Wisconsin and which was reputed to have broken into jails for the purpose of obtaining, and had obtained, machine guns, revolvers, bullet-proof vests and other equipment suitable for and used by them in their criminal activities and that John Dillinger, the leader of the gang who had been forcibly delivered from the Allen county jail through the activities of Makley and his associates, had escaped from the Crown Point, Indiana, jail through a heavily armed guard and was at large.

With knowledge of these facts it was the duty of the court to take proper precautions to meet any offensive that might be launched by the defendant and his accomplices and former associates, including John Dillinger, to release the defendant from custody.

In view of the speed of modern automobiles and other means of transportation and of the use by John Dillinger and his associates of modern war weapons and equipment, including machine guns and bullet-proof vests, in their nefarious criminal activities, and taking into consideration the fact that one man with a machine gun, skilled in the operation of the same, is equivalent to a large number of men armed with ordinary firearms, and that the manacles and shackles on the prisoner might be the only means of preventing his liberation by his confederates in case an attempt at such liberation was made, it was necessary that precautions be taken which would ordinarily not be necessary for the guarding and safe-keeping of a prisoner not associated with an organized gang engaged in wholesale criminal activities. Taking into consideration the unusual and extraordinary conditions that actually confronted the court in the trial of this case, we are of opinion that he did not in any manner abuse his discretion in refusing the request of the defendant Makley to be relieved of shackles and manacles during the trial of the case, although in a case not surrounded by such unusual and extraordinary circumstances it would have been an abuse of discretion on the part of the court in refusing such request.

For the reasons above mentioned, the presence of machine guns and military guards, and the admission of persons, including prospective jurors, by passes to the court house and court room and the registration and searching of such persons before admission to the court room, were made necessary by the unusual circumstances in this case relating to the safekeeping of the defendant, and it was not an abuse of discretion on the part of the court in permitting and maintaining such military guards, machine guns and other armament in and around the court house and jail during the trial; and the presence of such military guards, machine guns and armament and the admission of persons, including prospective jurors, by passes and the registration and searching of such persons, did not prevent the defendant from having a fair and impartial trial within the meaning of the constitutional guaranties; and the record does not disclose any evidence from which the conclusion may be drawn that the trial was not fair and impartial.

All the conditions surrounding the trial which are claimed in this assignment of error to have been objectionable, were the result of precautions necessarily taken to prevent the forceful delivery, release or escape of the prisoner and were justified by the unusual conditions above mentioned, and did not constitute any invasion of the legal rights of the defendant.

In order to prevent any prejudice to the defendant which might arise from the unusual conditions surrounding the trial the court, as shown by the bill of exceptions, charged the jury as follows:

"The court says to you that you are not to consider anything that you may have observed with reference to the defendant having been handcuffed and shackled during the trial, or how he was guarded, or relative to guards or anything else you may have observed in the handling of the prisoner or the attendants at this trial, and must not be influenced by them in the slightest degree, but you must decide the issues in this case solely from the evidence submitted and under the instructions the court has given you as to the law."

The defendant further contends that the trial was not a public trial as required by constitutional guaranties.

While the court house and surroundings were guarded by an adequate force to prevent any disturbance, any attempt at escape and any attempt to liberate plaintiff in error, there was no order on the part of the court excluding anyone from the court house premises, from the court house or from the court room. The only control the court maintained was that persons who were admitted, were required to secure passes and to register. The seating space in the court room was limited so that it was necessary to limit the passes to the capacity of the court room in order to prevent disorder. The record fails to show a single instance where any person or any class of persons were excluded from the court room. The requirement by the court that persons desiring admission to the court room secure passes and register for identification purposes, was a reasonable requirement under the circumstances surrounding the case and necessary for the preservation of order and the safekeeping of the defendant. The trial as held was a public trial within the meaning of the constitution notwithstanding the precautions exercised under the circumstances.

6. Admission of exhibits.

As shown by the record, all the exhibits to which the defendant objected which were admitted in evidence, were properly identified and were properly admitted in evidence.

7. Admission and rejection of evidence and in failure to prove defendant knew deceased was a sheriff.

In plaintiff in error's brief many alleged errors in the admission and rejection of evidence are pointed out.

Under the provisions of Section 13449-5, General Code, a judgment of conviction shall not be reversed for error in the admission or exclusion of evidence unless it shall affirmatively appear from the record that the accused was or may have been prejudiced thereby.

We have carefully examined the record with reference to the admission and rejection of the testimony referred to in the brief of plaintiff in error and upon such examination are of the opinion that it does not affirmatively appear from the record that the accused was or may have been prejudiced by the admission or rejection of such testimony.

Under this heading the plaintiff in error makes the contention that the state failed to prove that Makley knew that the deceased, Jess Sarber, was a sheriff at the time of the commission of the crime and that proof of such knowledge was necessary to a conviction.

The plaintiff in error relies on the case of Holt v. State,107 Ohio St. 307, 140 N.E. 349, in which it is held that it is necessary on the trial of an indictment under the provisions of Section 12402-1, General Code, to prove that the defendant knew the deceased was an officer as named in the statute.

The evidence in this case shows that the defendant, accompanied by Harry Pierpont and another accomplice whose identity is not established, entered the sheriff's office at the Allen county jail and stated that they were officers from Michigan City, Indiana, and that they wished to see John Dillinger, who was then a prisoner in the Allen county jail. When the sheriff, Jess Sarber, who was sitting at a desk in the office, asked for their credentials, they drew and pointed their guns at him stating that they, the guns, were their credentials, and then proceeded to shoot him. The fact that they entered the jail office itself and addressed a person therein on a matter of official business necessarily connected with the office of sheriff, would of itself justify an inference that they knew that he was sheriff. The additional facts in the case that Jess Sarber asked for their credentials and they presented to him what they called their credentials and that they then shot him in order to liberate the prisoner, in our opinion proves beyond any doubt that the defendant did know that the said Jess Sarber was the sheriff of Allen county and engaged in the performance of his official duties.

8. Overruling objections and motions made by defendant.

The contentions made by the plaintiff in error with reference to overruling objections and motions made by him, are all covered in the discussion of the preceding assignments of error, and we reiterate that we find no error in the rulings of the court upon the various objections and motions referred to in this assignment of error.

9. Prejudice, misconduct and abuse of discretion of the court.

We do not find anything in the record indicating prejudice, misconduct or abuse of discretion by the trial court in the trial of this case.

10. Misconduct of the prosecuting attorney.

In the opening statement in any case, counsel in good faith may make statements as to what they expect to prove and then in fact fail. This certainly would not be misconduct on the part of counsel. The matter complained of in this case, that he expected to prove certain things and then failed to offer evidence tending to prove the things he alleged in his opening statement to the jury, is not misconduct in the opinion of this court. The prosecuting attorney, however, did offer evidence tending to prove each and every element of the offense with which the defendant was charged.

With reference to the argument of the prosecuting attorney, he is allowed latitude in drawing inferences and conclusions from the testimony produced, and the inferences and conclusions drawn by him in his argument, from the testimony, were proper comments on the testimony as shown by the record.

11. Error in the charge of the court to the jury.

Under the assignment of error in the charge of the court to the jury, plaintiff in error charges error in the refusal of the court to give special request No. 7 presented by defendant. This request to charge related to the degrees of crime ordinarily included in a first degree murder charge. Under the indictment and evidence in this case the defendant was either guilty of murder in the first degree or was not guilty of any crime, and consequently the refusal of the court to give this charge was not erroneous.

Plaintiff in error contends that the court failed to charge that the jury are the sole and exclusive judges of the facts and the credibility of the witnesses, as provided by the statute. This charge, in strict accordance with the statute, appears on page 786 of the record in the court's charge.

Plaintiff in error also contends that the court failed to charge on presumption of innocence, as provided by the statute. Presumption of innocence was charged in special requests Nos. 3 and 4 of the defendant, and also was incorporated in the general charge of the court.

The plaintiff in error further contends that the court erred in charging on the subject of aiding and abetting. The evidence shows that Makley, Pierpont and an unidentified accomplice were at the jail office together and acted in concert in the commission of the crime charged, and these facts alone, without resort to the other evidence in the case authorized the charge which was correctly given.

We find that the charge is correct in all other respects.

The guilt of the defendant is established by the overwhelming weight of the evidence and the defendant failed to take the stand and controvert that evidence offered against him. Any errors occurring at the trial come within the purview of Section 13449-5 of the General Code, and it does not affirmatively appear that any of them were or may have been prejudicial to the defendant.

Holding these views, the judgment will be affirmed.

Judgment affirmed.

KLINGER and WILLIAMS, JJ., concur.

Williams, J., of the Sixth Appellate District, sitting by designation in the Third Appellate District.