Opinion
No. 21944
Decided March 6, 1930.
Criminal law — Charge to jury upon defendant's failure to testify, prejudicial — Defendant's voluntary testimony before grand jury introduced at trial — Section 10, Article I, Constitution.
ERROR to the Court of Appeals of Franklin county.
Ray H. Patterson was indicted jointly with A.E. Querinjean and Harvey C. Smith by the grand jury of Franklin county, Ohio, upon the charge of embezzling from the Cities Mortgage Company, a corporation of Franklin county, Ohio, certain money of the amount and value of $285,000. One Stein was also charged in the indictment with aiding and abetting. All of the defendants were tried together in the court of common pleas. The jury found the defendants Querinjean and Patterson guilty of embezzlement, as charged in the indictment, the court of common pleas sentenced them under the statute, and the Court of Appeals affirmed the judgment.
The case comes into this court upon the filing of a petition in error as of right, it being urged that the court's charge to the jury violated Section 10 of Article I of the Constitution of Ohio and the due process and equal protection of the law clauses of the Fourteenth Amendment to the Federal Constitution.
At the trial in the court of common pleas, three of the defendants, Querinjean, Smith, and Stein, did not testify. Neither did the plaintiff in error, Patterson, testify orally upon the trial. He did testify at the hearing before the grand jury. After having thus testified before the grand jury under oath, his entire testimony before that body was introduced on behalf of the state on the trial on the merits and read in toto to the petit jury. This testimony embraces some 45 pages of typewritten record, and covered in intricate detail the financial proceedings of the Cities Mortgage Company, which were the subject of the charge in the indictment. The transcript of Patterson's testimony showed that he was called as a witness" before the grand jury, and "duly sworn," and that before he testified the prosecutor informed him that he had the privilege of not testifying, and that anything he said before the grand jury might be used thereafter against him. The prosecutor asked:
"Are you appearing here voluntarily as a witness before the grand jury, voluntarily, after being asked to do so by me; is that right?" To which Patterson answered, "Yes."
"Q. Under no coercion in any way, shape or form? A. Not any.
"Q. Not any at all; there have been no promises made to you in any way, shape or form? A. Not to my knowledge."
Section 10 of Article I of the Ohio Constitution provides: 'No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel."
The court charged the jury upon the trial as follows: "Therefore, members of the jury, you may consider a failure of the defendants to take the witness stand in their own behalf. This can not cure the failure upon the part of the state, if any, to prove any of the essential elements of its case, but otherwise you may consider the circumstances attending the failure of the defendants to take the witness stand and attach thereto such significance and weight, if any, as you believe to be justified."
It is contended by the accused that he testified in the case when he appeared before the grand jury, and retestified through his grand jury testimony at the trial on the merits, and that hence it was reversible error for the court to charge that the jury could consider his failure to testify.
Mr. Smith W. Bennett, for plaintiff in error.
Mr. John J. Chester, Jr., prosecuting attorney, Mr. Myron B. Gessaman, and Mr. Robert J. Odell, for defendant in error.
If Patterson's testimony before the grand jury, as reintroduced before the petit jury, constituted testimony in the trial of the case on the merits, then the charge did constitute prejudicial error, for in such case Patterson should not have been linked in the charge with the other three defendants who refused to testify, and the presumption raised against those who did not testify should not have been so extended as to apply to him.
"Testimony" is "a statement made under oath in a legal proceeding; the evidence of a witness given under oath; the statement made by a witness under oath, or affirmation." 38 Cyc., 248. Patterson's statement was testimony before the grand jury. Before the grand jury the prosecutor used his power of examination extensively, and without refusal upon the part of Patterson to answer. So far as the prosecutor's opportunity to elicit information was concerned, he availed himself of the privilege without limitation, as though he had been cross-examining Patterson. No bound whatever was placed upon the questions which he asked, and Patterson, who at this hearing was of course not represented by counsel, answered to the fullest. When reintroduced at the trial before the petit jury, Patterson's sworn statement was introduced not merely as an admission. This is not the case of a mere written confession or admission introduced as evidence at the trial. Patterson's entire statement before the grand jury was voluntary and made under oath. It carried peculiar weight with the jury because of that specific fact. It was so full and complete that there was no occasion for further testimony by Patterson. Its effect was the same as if he had so testified before the petit jury. He should have been given credit for his voluntary testimony, instead of having a presumption raised against him upon the theory that he had refused to testify.
The meaning of the constitutional provision (Section 10 of Article I of the Ohio Constitution) is that a defendant must give his testimony before the petit jury in order to escape the effect of comment by counsel and charge by the court. If the sworn testimony of Patterson before the grand jury had not been introduced into the evidence before the petit jury, we should agree with the contention of the state that he did not testify in this particular criminal case; but here he did in effect testify. The state's case at the trial was bottomed, not upon a confession, not upon a mere admission, but upon sworn evidence. The state made Patterson its witness in the trial upon the merits, and it was reversible error on the part of the court to classify Patterson with the other three defendants who gave no testimony and did not take the witness stand at any stage in the proceedings.
The eighth paragraph of the syllabus in Harrison v. State, 112 Ohio St. 429, 147 N.E. 650, does not apply, as it sheds no light upon this question.
Judgment reversed.
JONES, MATTHIAS, DAY and ALLEN, JJ., concur.
I cannot concur in the judgment in this case, and place my dissent upon the ground that it is in conflict with Section 8 of the syllabus of Harrison v. State, 112 Ohio St. 429, 147 N.E. 650.