Opinion
Decided January 16, 1928.
Criminal law — Venue established by evidence naming county but not state — Perjury.
Evidence in trial for perjury held sufficient to show commission of crime in Hamilton county, Ohio, wherein trial was had, though witnesses did not testify that it was committed in such state.
ERROR: Court of Appeals for Hamilton county.
Mr. A.C. Fricke and Mr. A. Lee Beatty, for plaintiff in error.
Mr. Charles P. Taft, II, prosecuting attorney, for defendant in error.
Plaintiff in error was indicted and convicted of the crime of perjury. The perjury charged was the giving of false testimony before the grand jury, in the grand jury's investigation of a charge of murder against one James Clark.
Sentence was pronounced by the trial court, and to that judgment error is prosecuted here.
Two specifications of error are presented:
(1) That the verdict and judgment are against the weight of the evidence.
(2) That the state failed to prove venue.
As to the first ground, it is sufficient to say that the record discloses to us sufficient evidence to justify the jury in returning a verdict of guilty, and the judgment will not be disturbed on the ground that it is against the weight of the evidence.
The question of the proof of venue presents some complications. The record does not present direct evidence on the question. Were it not for the decision of the Supreme Court of Ohio in the case of State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969, 13 L.R.A. (N.S.), 341, 122 Am. St. Rep., 479, 11 Ann. Cas., 1181, we would be constrained to reverse the judgment on the ground of failure to prove venue. At page 56 of the opinion (82 N.E. 972) in the case of State v. Dickerson, supra, the court said:
"In answer to direct questions, the coroner testified for the state that he found the dead body in a certain township and that the township is in Coshocton county. But he was not asked to state, nor did he say, that Coshocton county is in the state of Ohio. We are not disposed to encourage the lax method of establishing the venue adopted in this case, but from the evidence set out and the main facts as to location and description contained in other parts of the record, we think the point is not well taken. It clearly appears from all the evidence that the criminal transaction occurred in the state of Ohio. The venue need not be proved in express terms, where the evidence is such in the state's case, that no other inference can be reasonably drawn by the jury."
In the case here under consideration it is in the evidence that the grand jury, before which the false testimony is alleged to have been given by plaintiff in error, was investigating a charge of murder against James Clark; that the killing took place at the residence of the plaintiff in error. She gave her residence street number. The police officers stated that they were officers in the employ of the city of Cincinnati and investigated the killing at the residence of Corinne Moore.
A court stenographer testified that he served as stenographer before the grand jury, which body was investigating the killing in the case of Clark v. State of Ohio, 28 Ohio App. 64, 161 N.E. 788, and gave from his notes the testimony claimed to have been false.
A deputy clerk of the courts of common pleas of Hamilton county testified that he was such deputy clerk of the courts of common pleas of Hamilton county. It is true he did not say Hamilton county, Ohio, but he stated that he was a deputy clerk of the courts of common pleas of Hamilton county, was qualified to swear witnesses, and that he served in the capacity of deputy clerk, serving at the grand jury. He testified he swore the plaintiff in error at that time as a witness before the grand jury.
Plaintiff in error gave testimony regarding her statements to the police concerning the killing which took place at her home, and testified as to her testimony before the grand jury investigating the killing.
The record discloses at the beginning of the trial in this case the following:
"The state, to maintain the issues on its part, called as a witness, Herman Busse.
"Mr. Beatty. We admit that the grand jury was sworn, and that an oath was administered to Corinne Moore. We admit all these preliminary matters."
Mr. Beatty was counsel for Corinne Moore. While this admission might not be sufficient to prove venue, nor to waive proof of venue, it can be taken in connection with the other evidence in the record, and, taking all of it together, no other inference can be reasonably drawn than that the crime took place in Hamilton county, Ohio.
While, as was said in the case of State of Ohio v. Dickerson, supra, "we are not disposed to encourage the lax method of establishing the venue adopted in this case," we are, nevertheless, of opinion that in the light of this decision the lax method of proof of venue in no wise prejudiced the defense.
We find no error in the record prejudicial to the plaintiff in error. The judgment of the court of common pleas of Hamilton county, Ohio, is affirmed.
Judgment affirmed.
MILLS and CUSHING, JJ., concur.