State v. Orth , 106 Ohio App. 35 ( 1957 )

This is an appeal on questions of law from a judgment of the Court of Common Pleas.

The record discloses that the grand jury of Allen County, Ohio, in April 1956, indicted the defendant for the murder of John Mooney while in the perpetration of a robbery. The defendant entered a plea of not guilty, and upon trial his only defense was an alibi. The jury returned a verdict of not guilty, and the defendant was ordered discharged. Subsequently, the defendant was placed on trial on an indictment returned by the same grand jury charging the defendant with armed robbery. His plea to this indictment was not guilty. Upon trial, the defendant was found guilty and, on motion, was granted a new trial. Upon retrial, the defendant filed a motion to allow him to withdraw his plea of not guilty, for the purpose of entering a plea of former jeopardy and other defenses allowed by law. This motion the court overruled. The defendant then filed a motion for an order permitting him to enter the defense of res judicata in addition to his plea of not guilty and tendered therewith what is designated as "defense of res judicata." This motion was also overruled by the court.

The trial proceeded on defendant's plea of not guilty. The jury returned a verdict of guilty, and the defendant was sentenced to the Ohio Penitentiary. From that judgment the defendant prosecutes his appeal.

The defendant assigns as error, the following:

1. For error of law in overruling the defendant's motion for leave to plead the defense of res judicata and in failing to dismiss the indictment herein on the grounds that the doctrine ofres judicata precludes retrial of the issue of the defendant's presence at the scene of the crime.

2. For errors of law occurring at the trial in the admission of evidence over the objection of the defendant.

3. For error of law in overruling defendant's motion at the close of the state's case to dismiss the indictment and to discharge the jury for the reason that the state had not proven a prima facie case, and for other errors manifest on the face of the record.

The record reveals that the indictment for murder and the indictment for armed robbery grew out of the same transaction which occurred at the G G Cafe in Lima, Ohio, on December 10, 1954.

The basic question presented by the first assignment of error is whether the defendant should have been permitted by the court to enter the defense of res judicata in addition to his plea of not guilty.

Section 2943.03, Revised Code, provides:

"Pleas to an indictment or information are:

"(A) Guilty;

"(B) Not guilty;

"(C) A former judgment of conviction or acquittal of the offense;

"(D) Once in jeopardy;

"(E) Not guilty by reason of insanity.

"A defendant who does not plead guilty may enter one or more of the other pleas. * * *. The court may, for good cause shown, allow a change of plea at any time before the commencement of the trial."

Section 10, Article I of the Constitution of the state of Ohio, provides that:

"No person shall be twice put in jeopardy for the same offense."

Article V, Amendments, U.S. Constitution, provides:

"* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *"

The constitutional guaranties apply only to being placed in jeopardy more than once for the same offense.

As stated in the opinion in State v. Rose, 89 Ohio St. 383, at page 386, 106 N.E. 50, L.R.A. 1915A, 256, "the words ``same offense' mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation."

The defendant in the case at bar, after his motion for leave to interpose the defense of once in jeopardy was overruled, abandoned this defense and does not now claim former jeopardy. However, the same result is sought by interposing the defense ofres judicata, that the verdict of not guilty in the murder trial was a former acquittal and estopped the state from trial of the defendant in the instant case on the charge of armed robbery.

Upon the filing of his motion for leave to enter the defense of res judicata, submitting to the court his defense of resjudicata setting forth the facts he claims in support of his motion, the question presented was a question of law for the court. No additional facts than those submitted by the defendant were needed or required by the court in ruling on the motion.

It is the claim of the defendant that the only issue for the jury to determine in the robbery trial was the same issue of fact that was decided by the jury in the murder trial, to wit, the alibi of the defendant; that the verdict of not guilty in the murder trial was a former acquittal; and that the doctrine of resjudicata applies.

There is nothing in the record to support defendant's claim, which claim is strongly disputed by the state, that in the murder trial the only issue was the issue of alibi. The issue of alibi was only one of the issues involved. There were many others.

The record is silent as to the issues upon which the murder case was tried. However, the nature of the charge involved a number of essential elements constituting the crime of murder while in the perpetration of a robbery, which the state was required to prove beyond a reasonable doubt. Failure upon the part of the state to prove any one of the essential elements required a verdict of acquittal.

Failure of the defendant to deny or dispute any of the issues involved would not relieve the state from the necessity to prove all the essential elements constituting the crime, beyond a reasonable doubt. This truth was recognized by defendant's counsel when, in his opening statement in the case at bar, he stated:

"Under our plea of not guilty the prosecution has to prove each and every element of their case by evidence beyond a reasonable doubt."

The plea of former judgment of conviction or acquittal of the offense and the plea of once in jeopardy differ only in the extent and character of the elements constituting the defense.

"As a general rule, a person is in legal jeopardy when he is put on trial, after a proper arraignment and plea, before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a legally constituted jury has been charged with his deliverance." 15 Ohio Jurisprudence (2d), 444, Section 261.

The elements constituting a plea of former judgment of conviction or acquittal of the offense will also support a plea of once in jeopardy. However, a plea of former judgment of conviction or acquittal of the offense is limited to a final judgment entered upon the merits. The former judgment of conviction or acquittal must be for the same offense as is the case where the defense is "once in jeopardy."

As stated in the opinion of the Court of Appeals in the case of Duvall v. State, 18 Ohio App. 471, at page 475:

"* * * In a criminal proceeding there is but one issue, and that is the guilt or innocence of the accused. There are various essential elements constituting the crime, each of which the state is bound to prove beyond a reasonable doubt, and failure upon the part of the state to so establish any one of the essential elements of the crime requires a judgment of acquittal. It is quite evident that a judgment of former conviction necessarily involves a finding in favor of the state upon each of the essential elements of the crime, whereas a verdict and judgment of acquittal may result from a failure of the state to satisfy the jury beyond a reasonable doubt as to any one of those essential elements. The doctrine of res judicata is not to be applied to the determination of every controverted fact that may be presented in the trial of a case. A plea of res judicata as to such controverted facts cannot be substituted for a plea of former jeopardy. * * *

"* * *

"The doctrine of res judicata is applicable only where there has been a definite adjudication of the matter in controversy between the parties. In a criminal case, where the defendant is relying on the defense of alibi, it is not incumbent upon him to prove such defense by a preponderance of the evidence, and the jury is therefore charged by the court that the defendant is not required to prove the defense of alibi by a preponderance of the evidence, but that it is sufficient if his evidence upon that subject, taken in connection with all the other evidence in the case, raises a reasonable doubt in the mind of the jury of the guilt of the defendant. When the evidence of the defendant need only be sufficient to raise a reasonable doubt in the mind of the jury of the guilt of the defendant in order to make it the duty of the jury to render a verdict of acquittal, a verdict of acquittal is far from being an affirmative finding in favor of the defendant upon his defense of alibi. * * *"

Regardless of what the holdings may be in other jurisdictions, the question here involved has been clearly and definitely determined by the Supreme Court of Ohio in the case of Duvall v. State, 111 Ohio St. 657, 146 N.E. 90. The facts in that case are, in the opinion of this court, on all fours with the case at bar.

In the Duvall case, Samuel Duvall was indicted for murder in the first degree while attempting to perpetrate a robbery upon one John C. Herbruck. He entered a plea of not guilty and was put on trial, his defense being that of alibi. The jury returned a verdict of not guilty. Thereafter, the grand jury returned an indictment against the defendant for the offense of robbery, charging him with robbing one John C. Herbruck, the indictment being based upon the same transaction embraced in the charge of murder in the first degree upon which he had already been acquitted. To the indictment for robbery, Duvall filed a plea in bar and a plea of res judicata, whereupon the state filed a demurrer. The court sustained the demurrer and the defendant was arraigned and stood mute, and the court entered a plea of not guilty. Upon trial, the jury returned a verdict of guilty as charged in the indictment. Error was prosecuted to the Court of Appeals and the Supreme Court. The Supreme Court affirmed the judgments of the Court of of Appeals and the Court of Common Pleas.

The law in the Duvall case, as set forth in the syllabus, reads as follows:

"1. An acquittal of a defendant upon the charge of murder in the first degree, while attempting to perpetrate a robbery (under Section 12400, General Code), is not a bar to a prosecution for the crime of robbery (under Section 12432, General Code), even though committed upon the same person named in the former charge, and the robbery was a part of the same criminal act referred to in the indictment for murder.

"2. The doctrine of res adjudicata is not applicable where one is being tried for one of the substantive offenses embraced in a conspiracy to commit a robbery, and the former trial and acquittal was for another offense committed in pursuance of the same conspiracy, to-wit, murder in attempting to perpetrate a robbery, additional elements being necessary to establish the latter charge; the two are, therefore, separate and distinct offenses. (Patterson v. State, 96 Ohio St. 90, 117 N.E. 169, L.R.A. 1918A, 583, approved and followed.)

"3. A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. A single act may be an offense against two statutes; and if either statute requires proof of an additional fact, an acquittal of the offense requiring proof of the additional fact does not exempt the defendant from prosecution and punishment under the statute which does not require proof of such additional fact."

In the case at bar the doctrine of res judicata does not apply, and on the undisputed facts presented, the court properly overruled defendant's motion to permit him to enter the defense of res judicata in addition to his plea of not guilty.

On the authority of Duvall v. State, supra (111 Ohio St. 657), the court finds the first assignment of error not well taken.

Defendant's second assignment of error is:

"For errors of law occurring at the trial in the admission of evidence over the objection of defendant."

In the presentation of the state's case, William Swearingen was called as a witness on behalf of the state. His evidence discloses that at the time of testifying he was serving a sentence in the Ohio Penitentiary on a plea of guilty to the charge of armed robbery of the G G Cafe in Lima on December 10, 1954, being the same offense involved in this action. During most of his examination, the witness, in answer to questions asked by the prosecuting attorney, stated either that he did not remember or did not know, or he refused to answer. Upon cross-examination by defendant's counsel, the first question asked of the witness was: "Mr. Swearingen, are you big enough man to sit there on the witness stand this morning and tell us the truth, the whole truth and nothing but the truth, and take the consequences?" His answer was, "I am, but I won't."

After this witness testified, the prosecuting attorney offered in evidence the testimony given by the witness at the former trial of the defendant for armed robbery. The complete testimony of the witness was, with the express consent of defendant's counsel, admitted in evidence as an exhibit. The testimony given by this witness when testifying in the defendant's murder trial was, with the express consent of counsel for the defendant, also admitted in evidence as an exhibit.

The testimony objected to, the admission of which is claimed error, was given by Joseph Garlock and Ronald Cook, officers of the Lima Police Department.

The testimony of officer Cook complained of is as follows:

"Q. Now, after he was apprehended and returned, or before you came to Lima, did William Swearingen give you a statement? A. William Swearingen.

"Mr. Blair: Objection.

"The Court: Objection overruled.

"Q. Let me ask the question again. Now after he was apprehended and returned or before you came to Lima, did William Swearingen give you a statement? A. William Swearingen, on the thirty-four hour railroad trip back, gave us a verbal statement numerous times. In fact, the almost entire trip back it was the subject of conversation.

"Mr. Blair: Now you reread the question, Mr. Bowers. The record shows I objected to that question again.

"The Court: Objection overruled.

"Q. And the statement was with reference to what?

"Mr. Blair: Objection.

"The Court: Overruled.

"A. It was to the December 10th, 1954, robbery of the G G Cafe and the part that he played in it and his accomplices.

"Q. After he had returned during a period of five or six months, have you talked to Swearingen at various times?

"Mr. Blair: Objection.

"The Court: Overruled.

"A. Yes, no less than half a dozen times have we talked to him since his return to Lima.

"Q. And after returning to Lima, did he talk to me in your presence?

"Mr. Blair: Objection.

"A. Yes, he did.

"The Court: Overruled.

"A. Yes, he did. In fact, you were there on numerous occasions.

"Q. And was the statement that he made to you during this interval the same statement that he gave you on the way back?

"Mr. Blair: Objection.

"The Court: Overruled."

The testimony of Officer Garlock complained of is as follows:

"Q. Now at any time on your return trip did you have a conversation with Mr. Swearingen in regard to the robbery of the G G Cafe?

"Mr. Blair: Objection.

"A. Yes, sir.

"The Court: Overruled.

"Q. And what was the subject or substance of that conversation?

"Mr. Blair: Objection.

"The Court: Overruled, but you may want to object while he is answering.

"Mr. Blair: Well.

"Q. What was the subject of that conversation?

"Mr. Blair: It would be hard to do.

"The Court: We'll catch it.

"A. The subject of the conversation was the robbery of the G G Cafe.

"Q. State whether or not he told you his part in the G G robbery?

"Mr. Blair: Objection.

"The Court: Overruled.

"A. He did.

"Q. Now state to this court and jury as to whether or not he told you facts that only he, if he was present, would have known of the G G Cafe?

"Mr. Blair: Objection.

"The Court: Overruled.

"A. He did.

"Q. And what were some of the instances that he told you?

"Mr. Blair: Objection.

"The Court: Overruled.

"A. The facts he advanced — that William Swearingen related to us enroute to Lima were several, one being the position of the car that was used in the robbery was parked; another was the fact that there were two front doors at the G G Cafe and that he had become momentarily confused when he had attempted to enter the front door the night of the robbery; another one was that there was a phone or was a phone located to the right of the front door on the bar at the G G Cafe; another was that the G G Cafe was partitioned into two rooms and that a man was shot during the robbery fell directly in front of him on the floor, and that he had to go out to his left around a partition when he went out the back door of the G G Cafe when he left.

"Q. Now state whether or not any time in addition to those items did he tell you also in detail his participation in the robbery? A. Yes, sir.

"Mr. Blair: Objection.

"The Court: Overruled."

After a careful check of this testimony with the testimony given by Swearingen on the witness stand, we find nothing in the testimony of the two police officers which contradicts or in any way impeaches the witness Swearingen. Nothing in this testimony was denied by Swearingen while on the stand. Nothing in this testimony implicates the defendant Orth. All statements claimed to have been made to the police officers were previously testified to by Swearingen in the former trials of the defendant, as shown by exhibits N and O admitted in evidence with the express consent of defendant's counsel. If there was any error committed by the court in admitting the testimony complained of, it was not prejudicial to the defendant. Defendant's second assignment of error is not well taken.

Neither the record of the murder trial nor the record of the first robbery trial, except for exhibits N and O and the testimony of one of the police officers hereinbefore referred to, was offered or made part of the record of this case, and this court is not permitted to consider same in disposing of any of appellant's assignments of error.

The court has carefully studied the record in this case and finds that there is substantial and credible evidence to support the verdict of the jury, and the defendant's third assignment of error is overruled.

No other error is presented or argued by defendant in his brief, and the judgment of the court below is affirmed.

Judgment affirmed.

GUERNSEY, J., concurs.