Opinion
No. 33636
Decided February 17, 1954.
Criminal law — Trial of felony case by three-judge court — Section 13442-5a, General Code — Accused's right to be present during trial — Right not violated, when — Reporter reading portions of testimony to court during deliberation.
Where a three-judge court, given jurisdiction to try a criminal case pursuant to the provisions of Section 13442-5 a, General Code, during its deliberation after trial has read to it by the court reporter in the absence of the accused certain portions of the testimony given at the trial, such action on the part of the court does not constitute prejudicial error as in violation of the constitutional right of the accused to be present during the trial.
APPEAL from the Court of Appeals for Huron county.
In February 1953, the accused, Phillip A. Demma, was tried and convicted of rape by a three-judge court in Huron county, he having waived his right to a trial by jury under the provisions of Section 13442-5 a, General Code.
The indictment charged that the accused raped one Gloria Jean Houghtlen, age 21, on November 21, 1952. Upon conviction, he filed a motion for new trial, alleging five grounds of error, and subsequently filed a supplemental motion for new trial alleging:
"1. In that the defendant was not present at every phase of the trial, to wit: was not present when the court, during its deliberation following final argument, had read to it certain portions of the testimony given at said trial."
A majority of the three judges concurred in overruling the motion for new trial as to all specifications. One judge held that the accused was denied his right to a public trial when the judges permitted the court reporter to read portions of the testimony of the prosecuting witness to them in their chambers without the presence of the accused. The court committed the accused to the Lima State Hospital for observation.
On appeal to the Court of Appeals, that court unanimously reversed the judgment of the trial court on the sole ground "that during its deliberation the court had read to it portions of the testimony in the absence of the appellant and without notice to him or knowledge of it in violation of his rights to a public trial and to be present at it."
The cause is now in this court on appeal by the state, a motion for leave to appeal having been allowed.
Mr. Bernard W. Freeman, prosecuting attorney, for appellant.
Mr. Henry E. Young, for appellee.
The Court of Appeals in reversing the judgment of the trial court, as disclosed by its opinion, took the position that the three judges stood in the same relation to the accused as a jury in a criminal case, and that having the testimony read to them without the presence of the accused was equivalent to charging the jury in his absence.
The Court of Appeals in its opinion observed:
"It is clear that during this review of a portion of the testimony, the deliberation of the judges had been suspended and that this phase of the trial can be properly denominated `public' and during which the defendant was entitled to be present."
It is true that Section 13442-5 a, General Code, prescribing the procedure when a jury trial is waived, provides, among other things:
"In any felony case, except cases involving a capital offense, wherein the defendant has waived a trial by jury, the defendant may file a request with the trial court for a trial before a court of three judges * * *. If tried by a three-judge court such judges or a majority of them shall have power to decide all questions of fact and law arising upon the trial and render judgment accordingly."
What, if anything, was done here out of line with the procedure authorized in a jury trial? No complaint is made that the court reporter was called into the judges' chambers during their deliberation. The judges were not, during their deliberation, under the custody of the bailiff or sheriff as is required in respect to a jury. The only error claimed is that some of the evidence given in open court in the presence of the accused was later reread to the judges. As the record shows and as is admitted by the parties, all this took place during the deliberation of the judges. No new evidence or information was received by them. The incident was comparable to the privilege which a jury has to read the pleadings and reread the exhibits presented in evidence and sent to it for its consideration during its deliberation in the jury room. The accused in this case had no more right to be present at the deliberation of the judges than he would have had to be present at the deliberation of a jury if he had been tried before one. On this subject, in the case of Jones v. State, 26 Ohio St. 208, this court said:
"We are unanimously of opinion, that on the trial of a felony it is error to proceed, at any stage of the trial, during the enforced absence of the accused, save only in the matter of the secret deliberations of the jury, and perhaps in the hearing of motions after verdict and before judgment." (Italics supplied.)
In that case, it was held that the court erred in giving additional instructions to the jury in the absence of the accused, where during its secret deliberation the jury returned to the courtroom in open court for such instructions. Clearly, that procedure was a part of the trial during which the accused was entitled to be present. This court reaffirmed this doctrine in the later case of State v. Grisafulli, 135 Ohio St. 87, 19 N.E.2d 645.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.