Opinion
Decided August 11, 1931.
Criminal law — First degree murder — Section 12402-1, General Code — Killing of sheriff while discharging duties — Voir dire examination of jurors — Discretion not abused in overruling challenge for cause — Jurors read newspapers and heard public rumors — Indictment charged first degree murder, not shooting or assault to kill — Evidence — Admissions of co-conspirators, in absence of others, admissible, when — General objection to evidence competent for some purpose, unavailing — All conspirators guilty of murder, where one conspirator kills sheriff — Refusal of new trial, not error — Accused's admissions sustained conviction, notwithstanding newly discovered evidence — Alleged statement that juror would demand conviction, denied.
1. Court's refusal in murder prosecution to sustain challenges for cause as to jurors testifying on voir dire they would render impartial verdict held no abuse of discretion.
2. Indictment alleging in substance that defendant and others willfully shot and mortally wounded sheriff in discharge of his duties sufficiently charged first degree murder under statute (Section 12402-1, General Code).
3. In prosecution for willfully killing sheriff, admissions of co-conspirators, in absence of others, held competent as showing conspiracy to resist officer (Section 12402-1, General Code).
4. General objection to admission of evidence competent for some purpose is unavailing.
5. Where one of several persons arming themselves with firearms and conspiring to resist sheriff kills sheriff while in discharge of duties, all conspirators are guilty of first degree murder (Section 12402-1, General Code).
6. Refusal to grant new trial for newly discovered evidence, where defendant's admissions would sustain murder conviction, if all other evidence were disregarded, held not error (Section 12402-1, General Code).
7. Refusing new trial in murder prosecution because juror made alleged statement he would hold out for conviction without mercy held not error, where juror and witnesses denied statement (Section 12402-1, General Code).
ERROR: Court of Appeals for Crawford county.
Mr. L.H. Kreiter, for plaintiff in error.
Mr. J.D. Sears, for defendant in error.
On the night of January 22, 1931, the chicken coop of Fred Vogel, a farmer residing south of Crestline, was entered, and fifteen chickens stolen. This theft was reported to Sheriff George Davenport at Bucyrus, Ohio, on the morning of the 23d of January, 1931. In response to this notice, a deputy sheriff called at the Vogel home to make an investigation. Snow was on the ground at the time, and tracks of two persons were traced from the Vogel premises across the fields to Crestline, Ohio, to near the McCumber poultry and commission house in said village. Upon inquiry, the chickens were later found and identified at the McCumber poultry house, and restored to their owner, Fred Vogel. It was also learned that one Walter Ralls had sold these chickens to the McCumber poultry and commission house on the morning of January 23, 1931. Search was then instituted by the deputy sheriff and the village marshal and police force to find and arrest Walter Ralls during the day of January 23, 1931. At one time the marshal of Crestline came within sight of Walter Ralls and fired several shots at him. The pursuit of Walter Ralls was continued, and later in the day the deputy sheriff saw him and fired several shots, with a view of arresting him, but on both of these occasions Walter Ralls effected his escape and was not apprehended. Later, in the evening of the same day, George Davenport, sheriff of Crawford county, Ohio, together with two deputies, went to Crestline for the purpose of apprehending Walter Ralls. He was finally located at the home of Elijah Ralls, a brother. Sheriff Davenport rapped on the door at the home of Elijah Ralls, and was admitted a short time thereafter by Mrs. Elijah Ralls. Sheriff Davenport then proceeded upstairs in search of Walter Ralls, and was shot, from the effects of which wound he very shortly thereafter died.
At the January term of court, the grand jury of Crawford county convened in special session, and a joint indictment was returned against the plaintiff in error Walter Ralls, Elijah Ralls and Blanton Ralls, charging the crime of murder in the first degree, in violation of Section 12402-1 of the General Code of Ohio. To this indictment, the defendant, Walter Ralls, on February 9, 1931, pleaded not guilty; and on the 2d day of March, 1931, said cause came on for trial in the court of common pleas of Crawford county, Ohio.
Prior to the trial, to wit, on the 21st of February, 1931, the defendant filed a motion for a change of venue. This motion was supported by affidavit of the defendant and by affidavits of some fifty-two or more citizens of Crawford county. Newspapers and other affidavits were also filed in support of this motion. The prosecuting attorney filed counter affidavits in opposition to the motion for change of venue. On the 26th and 27th of February, 1931, this motion for change of venue came on for hearing and was heard on evidence and affidavits, and subsequently was overruled by the trial court, to which ruling of the trial court the defendant, Walter Ralls, duly excepted.
The case then proceeded to trial on March 2, 1931, upon the issues joined. Upon conclusion of the opening statement by the prosecuting attorney to the jury, the attorney for the defendant, Ralls, filed an objection to the indictment and to the opening statement of the prosecuting attorney, and also filed a motion to exclude all testimony of the state pertaining to the fact that the deceased was a sheriff and was engaged in the discharge of his duties as such sheriff at the time he was shot, which objection and motion were overruled. Defendant excepted, and the trial proceeded. Exceptions were taken during the trial to the rulings of the court on the admission and rejection of evidence.
On the 5th of March, 1931, the jury returned a verdict finding the defendant, Walter Ralls, guilty of murder in the first degree, and made no recommendation of mercy.
After the verdict, a motion for a new trial was filed, and a motion in arrest of judgment was also filed. Both were later overruled by the court. A second and third motion for a new trial, on the ground of newly discovered evidence, were filed and overruled by the trial court.
We will consider these questions in the order in which they are presented: First, did the trial court err in refusing to grant a change of venue?
Much evidence and many affidavits were submitted on both sides of this question. The trial court, upon a full consideration of all the evidence, affidavits and testimony, decided that a fair trial could and would be given to the defendant in Crawford county, Ohio.
As a reviewing court we are not able to say that the trial court erred or that he was guilty of an abuse of discretion in so holding.
The next error complained of was the refusal of the trial court, in the impaneling of the jury, to sustain challenges for cause as to five jurors whose names are set forth in the briefs and bill of exceptions. The trial court, after making inquiry, asked each of these proposed jurors the question whether if they were selected to sit as triers of the facts in the case they could listen to the evidence as given by the witnesses and follow the law as the court would give it, in weighing and considering the testimony, without being prejudiced by what had been said or read concerning the tragedy or the defendant on trial. These jurors, as well as all the others, answered the court that they would decide the case according to the evidence offered at the trial, and apply it according to the rules of law as given by the court, regardless of anything that they might have read or heard concerning the case. If the trial court, hearing and seeing these jurors, believed them, and he evidently did, we as a reviewing court do not feel justified in challenging the correctness of the trial court's conclusions. In regard to this assignment of error, it is sufficient to say that the opinions of the jurors were not formed from reading or hearing the testimony of witnesses, or conversations with them, but merely from newspaper reports and public rumor. They all testified on their voir dire that they would, if selected, render an impartial verdict, and the trial court evidently, by accepting them, was of the same opinion, and as a reviewing court we could not say that this was an abuse of discretion on the part of the trial court. See McHugh v. State, 42 Ohio St. 154, and Doll v. State, 45 Ohio St. 445, 15 N.E. 293.
The next objection challenges the sufficiency of the evidence and claims error by the trial court in the admission of evidence as to the official capacity of George Davenport. This questions also the sufficiency of the indictment and denies that the indictment charges the crime of murder in the first degree.
We find the Supreme Court of Ohio has on at least one occasion emphatically expressed its interpretation of Section 12402-1, General Code.
Counsel for plaintiff in error maintains that murder in the first degree is not charged by this indictment, and therefore the opening statement of the prosecutor to the jury was prejudicial. The objection on the part of Walter Ralls to the indictment does not charge a defect in the indictment, but claims that it does not charge the crime of murder in the first degree, but the crime of shooting with intent to kill or assault with intent to kill.
This indictment, as has been stated before, is drawn under Section 12402-1, General Code, which provides that: "Whoever purposely and willfully kills a sheriff, * * * in the discharge of his duties, is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy * * *."
The validity of this section, together with the sufficiency of an indictment drawn thereunder, came before the Supreme Court in the case of Holt v. State, 107 Ohio St. 307, 140 N.E. 349; Atkins v. State, 115 Ohio St. 542, 155 N.E. 189; and Freeman v. State, 119 Ohio St. 250, 163 N.E. 202, and, according to these holdings, this court is of the opinion that the indictment correctly and sufficiently charges the crime of murder in the first degree under this section of the statute.
An indictment sufficiently charges the crime of murder in the first degree under Section 12402-1, General Code of Ohio, in the following words:
"The jurors of the grand jury of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present that Walter Ralls, Blanton Ralls and Elijah Ralls late of said county, on the 23rd day of January in the year of our Lord one thousand nine hundred and thirty-one at the county of Crawford aforesaid, with force and arms at the county of Crawford, and State of Ohio, aforesaid, in and upon one George Davenport, a sheriff of Crawford county, Ohio, then and there being, and whilst the said George Davenport, as a sheriff aforesaid, was engaged in the discharge of his duties as a sheriff as aforesaid, did make an assault in a menacing manner, with a certain shot gun then and there loaded and charged with gunpowder and leaden shot, which said shot gun, they, the said Walter Ralls, Blanton Ralls and Elijah Ralls, then and there had in their joint possession and control, and then and there unlawfully, purposely and willfully did discharge and shoot off to, against and upon the said George Davenport, a sheriff as aforesaid, whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, with the intent the said George, Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, unlawfully and purposely to kill and murder; and that the said Walter Ralls, Blanton Ralls and Elijah Ralls, with the leaden shot aforesaid so as aforesaid by them, the said Walter Ralls, Blanton Ralls and Elijah Ralls, by force of the gunpowder aforesaid, then and there discharged and shot out of the shot gun aforesaid, then and there unlawfully, purposely and willfully did him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, strike, penetrate and wound, with the intent him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, unlawfully, purposely and willfully to kill and murder, then and there giving to him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid in the abdomen of the body of him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid a mortal wound of which said mortal wound the said George Davenport, a sheriff as aforesaid and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, then and there died. Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio."
Another ground of error complained of was the admission of the statement of a codefendant, Blanton Ralls, into the record, on the ground that the statement was not made in the presence of the defendant, Walter Ralls.
The objection to the admission of this testimony was general. In the trial of this case, the contention of the state was that there was a conspiracy between Blanton Ralls, Walter Ralls and Elijah Ralls to resist the officers, and that the killing was the result of carrying out this conspiracy.
Evidence of a conspiracy or tending to show a conspiracy would be competent. Admissions and declarations made by co-conspirators in the absence of the others would be competent for the purpose of showing conspiracy, and, for the purpose of showing the conspiracy between Blanton Ralls and Elijah Ralls and Walter Ralls, this evidence was competent, and, had counsel asked the trial court to limit it, undoubtedly the trial court would have instructed the jury accordingly. But it is competent for some purpose, and hence a general objection was not well taken.
When two or more persons conspire to resist a sheriff in the legal discharge of his official duties, and arm themselves with firearms for the purpose of resisting the officer, and one of the conspirators thereupon shoots and kills the sheriff while in the discharge of his official duties, all the conspirators are equally guilty, under Section 12402-1 of the General Code of Ohio, of murder in the first degree.
The next ground of error complained of was, Did the trial court err in not granting a new trial because of newly discovered evidence? There is nothing in the record that we are able to find that warrants this claim or contention. The admission and confession of Walter Ralls was offered in evidence, in which he testified:
"My name is Walter Ralls, I live in Crestline, Ohio, and I am thirty-one years old. On Thursday, January 22nd Blanton Ralls my nephew and I planned to steal some chickens from Fred Vogel farm. Thursday night around midnight I went to my brother Elijah Ralls house where Blanton lived and we both went to the Vogel place, carrying a chicken crate with us. The chicken coop door was closed and locked. We pulled the hasp which held the lock and the door, pulled open the door, and I went in and took the chickens off the roost and handed them to Blanton who put them in the crate. We then took the crate of chickens to a place of hiding near the McCumbers chicken house. We then each went to our homes and next morning I went and got the chickens and sold them to McCumber. He gave me a check which I cashed at a Kroger store buying some groceries. I then went home. On my way home Blanton overtook me and asked for his half of the chicken money, which I gave him. A little later that day Elihu Johnson, marshal of Crestline, came to my house. I believed him to be after me for the burglary of the chickens and I ran out the door. I later learned that officers of the law were trying to arrest me for stealing the chickens and I hid all day. Right after dark on Friday January 23rd, 1931, Elijah Ralls took Blanton and myself in his car to his home. I told Elijah and Blanton that I had run enough and that I was going to defend myself from the officers. Blanton took an automatic shot gun which had been in Elijah's downstairs bedroom upstairs where we were to sleep. Elijah gave me some cartridges for a 25-calibre rifle, with which we armed ourselves, and asked me if that was enough ammunition. All three of us planned that if the law (officers of the law) came, we would fight them off. Elijah had a 38-calibre revolver which he said he would use. Blanton and I went upstairs to bed. After while Elijah came up and told us that the officers were at the door. Blanton and I both got out of bed. Blanton took one gun in his hands and I took the other. I stood near the foot of the bed near a corner of the bedroom. Blanton crouched behind the bed. I saw a light coming up the steps. I knew it was an officer. I will not say that I fired my gun, or that I did not fire it. I make this statement of my own free will, because I want to tell the truth. I was under no fear at the time I gave my oral statement to the prosecutor or am I under any fear as I sign this statement. No threats of any kind have been made against me, nor has any promise of immunity or reward been given me. I have read this statement and I have had it read to me before I signed it and I understand everything contained in it."
This statement is not contradicted by the testimony of Walter Ralls at the trial, but is supported in most particulars. This statement, together with his testimony at the trial, showed that Walter Ralls had committed the crime of burglary; that the sheriff and his aides and the local police officers at Crestline were trying to apprehend Walter Ralls for this crime of burglary, and were pursuing Walter Ralls; that Walter Ralls met his brother Elijah Ralls and his nephew Blanton Ralls, and they decided they would fight the officers of the law, and armed themselves with a revolver, a rifle and a shotgun for the express purpose of resisting arrest and fighting off the officers of the law, and, in pursuance of this agreement and in carrying out this plan, the sheriff was shot, from the effects of which shot he died. This admission, both in his statement and his evidence offered at the trial, brings this case within the section of the statute under which the indictment is drafted. It in fact admits the guilt of all the parties participating in the conspiracy. If all the other evidence were disregarded, the jury would be warranted and justified in arriving at the verdict and conclusion it did, upon this statement and testimony of Walter Ralls, supported as it was by the admission of Blanton Ralls as to the conspiracy.
One point most strenuously argued by counsel for plaintiff in error is set up in his brief as the third reason why a new trial should be granted. The claim is made that deputy sheriff Stuckert, in a statement to counsel for plaintiff in error, Louis H. Kreiter, on March 5, 1931, a short time after the verdict was rendered, said that he knew what the verdict was, for one of the jurors had told him he would sit for a week or two weeks on the jury before he would give in to any verdict except "murder in the first degree without mercy."
We agree with what counsel for plaintiff in error says in his brief if we accept the statement as correct, and we have no doubt but that counsel believes in all seriousness and good faith that such a statement was in fact made. However, issue was joined and this juror was called, the deputy sheriff was called, and other witnesses that were present and might have heard the conversation, and they all denied that the juror Brause made such a statement. And again we defer to the trial court who was present and heard the testimony and saw the witnesses, and we do not feel justified in reversing his findings, in the light of the entire case as disclosed by the evidence, and especially in the light of the admissions and confessions that were made by the defendant as well as by one of the co-conspirators.
A number of other errors are assigned in the brief of counsel. We have investigated them, and fail to find any error that would warrant or justify a reversal.
The verdict, finding and judgment of the court of common pleas will be affirmed. Exceptions saved.
Judgment affirmed.
JUSTICE, P.J., concurs.
LLOYD, J., of the Sixth Appellate District, concurs in the judgment.