Opinion
Decided December 7, 1931.
Criminal law — Whispered conversation of witness with court, error — Proceedings in court to be open and of record — Insufficient record of conversation of witness with court.
1. Permitting witnesses to step from witness stand to bench, and state in tones which cannot be heard statements unknown to accused or his counsel, is ground for reversal.
2. Everything done in court should be in open and appear in record.
3. Where record failed to disclose what, or that anything, was said by witnesses to court which could not be heard by accused or counsel, accused cannot complain.
ERROR: Court of Appeals for Hamilton county.
Mr. Harry H. Shafer, for plaintiff in error.
Mr. John D. Ellis, city solicitor, and Mr. Francis T. Bartlett, for defendant in error.
Plaintiff in error, Frank Battenheiser, was charged with the unlawful possession of intoxicating liquor, was arrested, tried, and convicted in the municipal court of Cincinnati. The judgment of conviction was affirmed by the court of common pleas of Hamilton county, and error proceedings are now prosecuted to this court.
The only argument advanced by counsel for plaintiff in error as ground for reversal, as stated in his brief, is that the court erred in permitting witnesses to step from the witness stand to the bench and state in tones which could not be heard statements unknown to plaintiff in error or his counsel. If this were established it would be ground for reversal. Everything done in the court should be in the open and appear in the record.
The record in this case shows that a stenographer was present, a bill of exceptions was prepared, and statements were interlined which were not taken by the stenographer, but were later scratched out. The record fails to sustain counsel's claim that the witnesses spoke to the court, and fails to disclose what was said to the court which could not be heard by the parties or counsel. Therefore plaintiff in error's claim cannot be maintained.
The judgment of the court of common pleas, affirming the judgment of the municipal court, must be affirmed.
Judgment affirmed.
HAMILTON, J., concurs in the judgment.
I concur in the judgment of affirmance for the reason that the record clearly shows that the defendant was convicted by evidence showing his guilt beyond any reasonable doubt, and that while the act of the court in listening to whispered conversations of a witness on the stand was error, it was not such as to require a reversal under the provisions of Section 13449-5, General Code.