Reigelsperger v. Pond

In view of the dissenting opinion of my associate, Judge Younger, I believe that some explanation should be given why this member of the court is of the opinion that the assignment of error as to the empaneling of the jury is not well taken.

It should be first observed that the claim under this assignment is that the plaintiff was prejudiced, not by being deprived of any right to exercise a peremptory challenge against the thirteenth juror, but by being denied a peremptory challenge against the first juror. In my opinion this claim of prejudicial error is not well taken for at least two reasons.

First, I am of the opinion that the case of Lyon v.State, 116 Ohio St. 265, is controlling on the facts here. It will be noted in the first paragraph of the syllabus of theLyon case that the Supreme Court determined, "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." This is exactly what was required by the trial court here. We are not informed whether the trial court had a formal rule pertaining to the selection of juries, which imposed this requirement. If it did, counsel was charged with the requirements of such rule. But even in the absence of a formal rule it was made apparent by the trial court to counsel, from the first, that the court was imposing a rule that passed challenges were being deemed waived, and, having such notice, counsel would proceed to pass same thereafter at the peril of losing such challenges.

Secondly, the following transpired after counsel for plaintiff had passed all of the jurors, including the 13th juror, for cause:

"The Court: With the defense for cause.

"Mr. Boller: We pass for cause.

"The Court: 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 that point there was a complete twelve-man jury, and a 13th juror, passed by the plaintiff and the defendant both for cause and peremptorily. At that point Maehlmann had not been seated, either as one of the twelve jurors or as 13th juror. The seating of Maehlmann came about only because counsel for plaintiff ignored the fact that a jury had been obtained and proceeded to reopen the examination of the jury, thus himself bringing about the situation of which he now complains. He may not successfully complain of invited error, if error it be.

MIDDLETON, J., concurs in the foregoing concurring opinion.