Reigelsperger v. Pond

I concur entirely in the foregoing opinion of the court and in reversing the judgment and remanding the case for a new trial. However, I dissent from the finding that the other assignments of error are not well taken. Assignment number one is "error in impaneling the jury." This assignment, in my opinion, is well taken.

The record shows that at the start of the impaneling of the jury the court directed the clerk to seat thirteen prospective jurors, using the alternate juror's seat. At this point a question was raised and it was agreed between both counsel and the court that as a prospective juror was dismissed the thirteenth juror should move to the seat vacated and the next venireman on the list should take the thirteenth seat and that the "13th juror should not be qualified until after the first twelve have been sworn." This latter part was subsequently ignored, as at the conclusion of the peremptory challenges all thirteen jurors were sworn together and no opportunity was given by the court to either counsel to exercise peremptory challenges as to the thirteenth juror. Section 2313.37, Revised Code, provides that if an alternate juror is deemed necessary such juror shall be selected after the jury has been impaneled and sworn in the same manner as the regular jurors and each party is entitled to two peremptory challenges.

After the thirteen prospective jurors were seated counsel inquired of all of them for cause, and a number were excused for cause. As each prospective juror was excused for cause the prospective juror in seat 13 was moved to the seat vacated and another prospective juror was called and placed in seat 13. This process continued until all thirteen jurors were passed for cause.

Thereupon the court stated:

"The Court: Thank you. Then the jury is with the plaintiff for peremptory, first peremptory challenge."

Mr. Spidel then excused Mr. Stalder, prospective juror No. 8, and the prospective juror Kuhn was moved from seat 13 to seat 8, and seat 13 was then filled by prospective juror Gerald Collins.

Mr. Spidel then examined Mr. Collins, followed by Mr. Boller. Mr. Boller than examined Mr. Kuhn, prospective juror No. 8. Upon passing for cause the court announced:

"The jury is with the defense for its 1st peremptory.

"Mr. Boller: We will excuse Mr. Urban Mescher."

He was prospective juror No. 10, and Mr. Collins was moved from seat No. 13 to seat No. 10, and Mrs. Tangeman was seated as No. 13. She was examined by Mr. Spidel, and both counsel passed for cause. The court then stated:

"Thank you. The jury is with the plaintiff for its second peremptory challenge.

"Mr. Spidel: We pass perempt.

"The Court: The jury is with the defendant for its second peremptory challenge.

"Mr. Boller: We will excuse Mr. Louis J. Heyne."

Mr. Heyne, prospective juror No. 12 was excused, and Mrs. Tangeman moved from seat No 13 to seat No. 12, and Mr. Rinderle was seated as prospective juror No. 13, and he was examined for cause and both counsel passed for cause. Thereupon the court announced:

"The jury is back with the plaintiff for its 3rd peremptory challenge.

"Mr. Spidel: We pass the jury.

"The Court: The jury is with the defense for its 3rd peremptory challenge.

"Mr. Boller: The defendant accepts the jury."

At this point, both parties having passed, the court could have announced that a jury had been selected. But being able and experienced, the trial judge followed the well-known and old rule that, as long as neither party had exhausted the number of peremptory challenges it was entitled to, the matter should be left open as long as reasonable; and that, while the parties should not be permitted to pass back and forth indiscriminately in an attempt to see what the adversary will do, a fair and reasonable latitude should be observed to the end that a fair and impartial jury may be secured. The court then continued:

"The Court: To keep the count, do you pass your 4th peremptory, Mr. Spidel?

"Mr. Spidel: How is that?

"The Court: You pass your 4th?

"Mr. Spidel: We pass 3, yes.

"The Court: It is with you for the 4th."

Thereupon, Mr. Spidel further examined prospective juror No. 10, at the conclusion of which Mr. Spidel excused Mr. Collins and Mr. Rinderle was moved from seat No. 13 to seat No. 10. Mr. William J. Maehlmann was then called as prospective juror No. 13 and examined by Mr. Spidel, and both counsel passed for cause. Whereupon the court stated: "The jury is with the defense for its last peremptory challenge," and the defense excused Mr. Deitsch, prospective juror No. 1; Mr. Maehlmann No. 13 was then seated as juror No. 1, and Glen Florence, Jr., was called as prospective juror No. 13 and examined by Mr. Spidel and by Mr. Boller, and both passed for cause. Thereupon the court announced:

"Gentlemen, we have a jury, according to my count. Any objection to having the jury sworn at this time?"

"Mr. Boller: None.

"Mr. Spidel: I would like to ask a couple questions of Mr. Maehlmann."

This examination brought out the fact that Mr. Maehlmann, an assistant manager of a local building and loan association, knew two of the attorneys and that one of the attorneys for the defendant, Mr. Kemp, of St. Marys, had made a few title reports to his company for their local attorneys in Celina. At the conclusion of this examination the following occurred:

"Mr. Spidel: If the court please, we would like to bring a peremptory against this juror.

"Mr. Boller: Peremptory has been exhausted, your Honor.

"The Court: Wait a minute, just wait a minute. You passed your final?

"Mr. Spidel: I passed, but I still have the right to exercise an extra peremptory. I still have those peremptories left. I passed at the time.

"Mr. Boller: I would object to such procedure, your Honor. I feel that they have passed for peremptory and permitted this juror to take his seat and already has the 13th or alternate juror. Peremptory challenge has been passed.

"The Court: The court rules against you, Mr. Spidel. The jury will remain seated.

"Mr. Spidel: Exceptions.

"The Court: You either exercise them or pass them; they are marked off.

"Mr. Spidel: Note exceptions.

"The Court: Any objection now to swearing this jury.

"Mr. Boller:: None.

"Mr Spidel: We object for the reason that we haven't exhausted all our peremptory challenges.

"The Court: Very well, the jury may stand, raise your right hand, including the 13th juror."

Thereupon the thirteen jurors were sworn in as a group.

The court in ruling against the challenge of Maehlmann and in its subsequent statement that "You either exercise them or pass them; they are marked off" held, that although plaintiff was entitled to exercise four peremptory challenges, such challenges had been exercised by excusing two jurors and passing twice. At the time this challenge was made there were two new jurors in the box, Maehlmann and Rinderle, who were not in the box at the time plaintiff had last passed.

It was held in Koch v. State, 32 Ohio St. 352, that "when the juror Rice was called into the panel, it was a new jury, and the defendant, having up to that time exercised but one peremptory challenge, had the legal right to peremptorily challenge any one of the jurors. The denial of this right was error."

In the syllabus in the case of Lyon v. State, 116 Ohio St. 265, it was held "nor is it error for the court to require that an omission to challenge peremptorily or a waiver of such challenge shall have the same effect as the exercise of the right." However, as stated on page 271 in the opinion, at the beginning of the trial the court made the following statement:

"I think we will now stipulate, at this time, the rule that will be applied, with reference to the exercising of peremptory challenges. That rule will be that the defendant will exercise four, or be charged with four challenges by the court, first. And then the state exercise one, or be charged with one. * * *"

Therefore, in the Lyons case counsel knew at the start of the trial that the passing of a peremptory challenge would be charged against them the same as the exercise thereof. Not so in the case before us. It is true that the court stated to plaintiff's counsel that the jury was with the plaintiff for the "first peremptory challenge," "for a second peremptory challenge," "for its third peremptory challenge" and "it is with you for the fourth." In my opinion this did not advise counsel that the court was going to make it its ruling that the passing of a challenge would be the equivalent of exercising it, and when the court did announce the rule it had the effect of being retroactive.

The refusal of the challenge to Mr. Maehlmann resulted in placing the plaintiff in an embarrassing and unfair position under the subsequent ruling of the court. The challenge to Mr. Maehlmann being refused, he remained upon the jury which heard the case.

Whether this prejudiced Mr. Maehlmann is beside the point. It had the capacity for doing so. And if plaintiff was not permitted his allotted peremptory challenges prejudicial error intervened as a matter of law

"* * * Moreover, it has been held that the denial of a right of peremptory challenge is prejudicial per se and harmful, and a party is not required to make an affirmative showing that the denial of his right resulted in prejudice and injury to his cause; and the test is not whether the denial actually influenced the result, but whether it had the capacity for doing so." 5A Corpus Juris Secundum 833, Appeal Error, Section 1708.

It is, therefore, my opinion that the refusal of the trial court to allow the peremptory challenge to juror Maehlmann was error prejudicial to the plaintiff.