author: By SKEEL, J: By HURD, J.

text:
    E. W. SCRIPPS COMPANY et, Relator, v. FULTON, Judge, Respondent.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23454.
    Decided April 13, 1955.

      Baker, Hostetler & Patterson, Cleveland, for relator.
    Frank Cullitan, County Pros., David R. Hertz, Leo Rattay, Robert Wehr, Cleveland, for respondent.
   OPINION

By SKEEL, J:

This is an action in prohibition, invoking the original jurisdiction of the court under the provisions of Article IV, Section 6 of the Constitution of Ohio.

The relators are seeking a writ prohibiting the respondent from enforcing an order excluding relators and all other members of the public- from the court room over which he is presiding as Judge while the said Court is in session and during the time the trial of the case of State of Ohio v. Baker et al, is in progress, the defendants in said case being charged with pandering, in violation of §2905.15 et seq, R. C., or at any other time, while the court is in session. The relators also seek a revocation of an order excluding relators and other members of the public from the court room presided over by the respondent, said order having been issued February 11, 1955.

The facts are not in dispute. The respondent is a duly elected and qualified Judge of the Court of Common Pleas of the County of Cuyahoga, Ohio. On the 11th day of February, 1955, he was presiding in Court Room 3 of the Criminal Division of said court, and was then conducting the trial of the case of State v. Baker et al. One of the state’s witnesses, who to a degree might be called the prosecuting witness, had concluded her testimony in chief, and was about to be subjected to cross-examination by counsel for the defendants. At the defendants’ request, an order excluding all members of the public from attending the trial was made by the court, it being claimed by their counsel that they would be “better able to compel the witness to tell the truth” if they could cross-examine her in private; that is, if all members of the public, including newspaper reporters, were excluded from the court-room. The respondent, upon the defendants making such request and signing written waivers of the right to a public trial, granted the request and ordered all members of the public out of the court-room during that part of the trial, except court personnel, the jury, counsel, and one witness for the defendants, posting a guard at the door to see that the order was carried into execution. This action seeking a writ of prohibition commenced during the time the relators’ personnel and the public .were excluded while the trial was in progress. It is now a matter of public knowledge that the case has been concluded and the effectiveness ■of the order of exclusion has come to an end, yet it is the desire of the parties that the legal question of the right of the court to make such an order be decided by this Court for a future guide should like circumstances occur, it being stipulated that the respondent has declared he will again exclude the public during trial of a felony under like circumstances.

A writ of prohibition is an extraordinary proceeding. By constitutional authority, a court of superior jurisdiction is authorized by its judgment to direct a court of inferior jurisdiction not to exceed its juris•dfction in the administration of justice. High, in his work dealing with the writ of prohibition, states that the elements that must be established upon which such a writ shall issue are: (1) that an officer seeks to exercise judicial power; (2) that the power about to be exercised, or the -order about to be made, or attempted, is unauthorized by law; and (3) the person seeking the writ has no adequate remedy at law.

■ The writ of prohibition is not only available to a person when a court seeks to exercise jurisdiction which it does not have, but also when it does an act or threatens to act in excess of its legitimate or authorized powers.

The Supreme Court of Ohio, in the case of State, ex rel. Nolan v. Clendening, 93 Oh St 264, quotes with approval from Section 781 of High on “Extraordinary Remedies” as follows:

“The province of the writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but it is extended to cases where such tribunal although rightfully entertaining jurisdiction of the subject matter in controversy, has exceeded its legitimate province.”

There is no dispute but that the order about which relators complain was issued by a Judge of a court of record in a proceeding then on trial, the order not being concerned with the issues of the case but had to do with the right of members of the public to enter the court room during the progress of the trial. The persons, constituting members of the public, who were excluded did not have the right to enter an exception on the record because of their exclusion from the court room, yet, if there be a public right to observe a trial in courts of justice, the only way such right can be adjudicated would be by seeking, in an action for declaratory judgment, an order declaring the plaintiff’s rights, or by seeking a writ of prohibition where the order as to the public attendance at the trial exceeds the jurisdiction of the court.

In the case of United Press v. Valenti, 308 N. Y. 71, the court held in paragraph 2 of the syllabus, where a like situation developed:

“2. Notwithstanding that the question on this appeal has become moot, the appeal should be entertained since the problem presented and the principle involved are of importance in the administration of the criminal law.”

We hold that the relators have the right under the pleaded facts to maintain this action.

The question presented for our consideration is whether or not a trial judge has the power to conduct any part of a trial of one charged with felony in secret, or, to state the question a little more broadly, is it a necessary prerequisite in the administration of criminal justice that a trial of one charged with felony be a public trial where the public, with some discretionary limitations, hereafter to be considered, may attend and observe the proceeding? It must be observed that in this case the only reason for making the order excluding the public from attending the trial was the demand of the defendants that a part of their case be conducted in secret. No question of the public morals, safety or health was advanced or considered in making the order of exclusion.

Courts are public institutions. They are maintained by the public as a necessary part of the process of government in maintaining order and adjudging the legal obligations and rights of the people. Judicial power in a criminal case is exercised by an action in the name of the state in which action all have a deep and abiding concern. Any suggestion that law enforcement has any private aspects as to the manner in which justice is administered is completely without foundation. To permit trials of persons charged with felony to be held in secret, the order of secrecy being based entirely on defendants’ request would take from the court its most potent force in support of the impartial administration of justice according to law.

A crime is a public wrong, one directly affecting every member of society and the trial of one charged with criminal conduct is for the determination of the question of whether the conduct of the defendant has violated the laws of the State enforced as a necessary part of main-taming the social order. Blackstone says in Vol. 4 page 1428, paragraph 5 (Lewis’ Edition):

“Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity.”

The community is deeply interested in the right to observe the administration of justice and the presence of its members at a public trial is as basic as that of a defendant whether such right be provided for in the Constitution or otherwise.

Article I, Section 16 provides:

“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”

In Article I, Section 10, it is provided that a defendant is entitled to a public trial. This constitutional provision is one for the benefit of the defendant. It does not, however, guarantee the defendant a private trial as against the public whose interests are equally involved in the judicious administration of the law.

Historically, there is no foundation for the administration of justice in secret. In the early writings of Greek scholars contributing to the development of Athenian law as administered in public forums, in which forums the democratic way had its beginning, we find the description of the out-of-door sessions of judicial tribunals on the hills about Athens. One famous place was the “Areopagus” where the Senate likewise met and in the words of the goddess “Athena”:

“This court majestic, incorruptible, the sleepless guardian of my land I set.”

(Panorama of World Legal Systems by Wigmore.)

The common law of England, founded on the common experiences of the people, the writings of the early English legal scholars, the development of the Ions of court, the decisions of the traveling judges of the King’s Bench and the trial of civil disputes in the courts of common pleas held in Westminster Hall, was in a degree influenced by the earlier civil law as developed in the open tribunals of Rome The basis of the constitutional guarantee of an “open court” is to be found in the development of the common law and would be a recognized right of the people without constitutional sanction.

It can never be claimed that in a democratic society the public has no interest in or does not have the right to observe the administration of justice. The open court room is as necessary and important in the interest of supporting the administration of justice as in the protection of the rights of a member of the public when on trial for a criminal offense.

In the case of State v. Copp, 15 N. Hamp. Rep. 212, the court, in considering the case of one charged with resisting an order of exclusion as a disturber in a court proceedings, said at page 218:

“But the law never intended that the prisoner should have the power to station himself in any position he might desire during the trial. If it rested with him to select the location he might find most, convenient, he might see fit to place himself upon the bench or in the jury box. He was present.' at this trial neither as a party or a witness. He went there to gratify his curiosity, and it behooved him to so conduct as not to disturb the proceedings of those who had duties to perform. These duties cannot be discharged unless the justice possesses the power upon an emergency to direct the removal of any individual whose presence he may think prejudicial to the interests of justice. The law does not, indeed, authorize any court to act arbitrarily and unreasonably exclude persons but the right to have the court open is the right of the public and not the individual.” (Emphasis ours.)

In the case of United States v. Kobli, 172 Fed. 2d, 919, the defendant was on trial charged with a violation of the “Mann Act.” The case had attracted some notoriety. When the case was called, the court room was “filled to overflowing” with spectators in no way connected with the trial, including a number of young girls. The trial court thereupon excluded all members of the public, except members of the press, and those directly involved in the case.

One of the defendants objected on the basis that such order prevented her from enjoying the constitutional right to a public trial. The Circuit Court of Appeals reversed the conviction of the defendant on the ground that her constitutional rights had been violated. Headnotes Nos. 2, 3, 4, 8 and 10 provide:

“2. A violation of constitutional right to a public trial necessarily implies prejudice, and defendant need not point out any definite personal injury.

“3. The knowledge that every criminal trial is subject to contemporaneous review in forum of public opinion is regarded as an effective restraint on possible abuse of judicial power. U. S. C. A. Const. Amend. 6.

“4. An important purpose of constitutional guarantee of public trial is the reasonable possibility that persons unknown to parties or their counsel might voluntarily come forward to testify, and another purpose is the enabling spectators to learn about their government and acquire confidence in their judicial remedies. U. S. C. A. Const. Amend. 6.

• “8. The constitutional requirement of a public trial precludes general indiscriminate, exclusion of the public from the trial of a criminal case in a federal Court over defendant’s objection and limits trial judge to exclusion of those persons or classes of persons only whose particular exclusion is justified by lack of space or for reasons particularly applicable to them.

“10. In prosecution on charge of violating the Mann Act, trial judge’s order clearing courtroom of all people except-jurors, witnesses, attorneys and members of the press, over defendant’s objection constituted denial of her constitutional right to ‘public trial’ notwithstanding that order was made for purpose of protecting morals of a large group of youthful spectators in courtroom, and prejudicial error resulting. therefrom was not cured by subsequent offer to readmit such persons whom defendant might designate and who were connected with the case. 18 U. S. C. A. Secs. 2421, 2422; U. S. C. A. Const. Amend. 6.”

And on page 923, the court says:

“We are satisfied that the framers of the Sixth Amendment believed it to be essential to the preservation of the liberty of the individual that, to the extent and within the limits which we have indicated, members of the general public should be admitted to every criminal trial even though it might appear that, in a case such as the one before us, most of them come only out of morbid euriousity. This concept of the common law which the framers believed important to be preserved as a protection for the individual and a restraint upon the possible abuse of judicial power was well expressed by Justice Bayley for the Court of Kings Bench in the case of Daubney v. Cooper, 1829, 10 B & C 237, 240, 109 Eng. Re. 438, 440 as follows:

“ '* * * we are of opinion, that it is one of the essential qualities of a Court of Justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, — provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, — have a right to be present for the purpose of hearing what is going on.’ ”

In the case of State v. Hensley, 75 Oh St 255, the court, on pages 265 and 266, in considering the constitutional right of a defendant to have a public trial in a rape case, said:

«* * * jlow much should be, and we think is necessarily and properly left to the trial judge who is obliged to insist upon the orderly conduct of the public business and whose highest duty is the securing to the parties the defendant as well as the State, a fair and impartial trial; but the people have the right to know what is being done in their courts and free observation and the utmost freedom of discussion of the proceedings of public tribunals, that is consistent with truth and decency, tends to the public welfare * * (Emphasis added)

And in the case of State v. Grissfulli, 135 Oh St 87, the court in defining a criminal trial, said:

“In its strict definition, the word ‘trial’ in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready. * * *”

In the case of State v. Holm, reported in 224 P. 2d, 500, the court engaged in an exhaustive analysis of the case law on the subject of a “public trial.” Headnotes Nos. 16 and 17 provide:

“16: Criminal trial must be public though there is no specific provision to that effect in the State Constitution.

“17: A trial court in a criminal prosecution should be cautious in making an order of exclusion of spectators from a trial and should do so only when public interest necessarily requires it.”

And on page 508 of the report the court said:

“The Attorney General contends that the Constitution of this state does not guarantee a defendant in a criminal case a public trial. It is true that no specific provision to that effect is contained in the Constitution of this state along with the Constitutions of only three other states, namely, Massachusetts, New Hampshire and Virginia. But the Supreme Court of the United States has held that due process of law includes those immutable principles of justice which inhere in the very idea of free government. Holden v. Hardy, 169 U. S. 366, 389, 18 S. Ct. 383, 42 L. Ed. 780, and those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Herbert v. Louisiana, 272 U. S. 312, 316, 47 St. Ct. 103, 71 L. Ed. 270. And in the case of In re Oliver, 333 U. S. 257, 273, 68 St. Ct. 499, 507, 92 L. Ed. 682, the Supreme Court held that:

“ ‘In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot’ be sent to prison without a public trial. Hence, there seems to be but little choice for this court in determining whether anything less than that is meant by Section 8, Article 1, Ohio Constitution which says that:

“ ‘All courts shall be open,’ and by Section 6 of Article 1 which provides that ‘No person shall be deprived of life, liberty or property without due process of law.’ However, that may be, the authorities seem to be in agreement that a public trial was a common law right and since this state has adopted the common law, the right to a public trial is, in the absence of a statute — and we have none — as good a guarantee as though it were contained in our Constitution. As early as 1565, Sir Thomas Smith, writing on the laws of England, wrote of the necessity of as many persons as might be present hearing what witnesses had to say. Sir Matthew Hale in 1670 wrote of the excellence of trials in England by reason of having the courts open to the public. See 6 Temple Law Quarterly 382. In Blackstone in his Commentaries III, 373, the author states:

“ ‘This open examination of the witnesses “viva voce” in the presence of all mankind is much more conducive to the clearing up of truth than the private and secret examination taken down before an officer or his clerk in the ecclesiastical courts and all others that have borrowed their practice from the civil law, where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal.’

“See also the statement of Jeremy Bentham, Rationale of Judicial Evidence as quoted in VI Wigmore On Evidence (3rd Ed) Section 1834. In the case of Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99, III, the court states: (in dealing with the essentials of a criminal case)

“ ‘The essentials of a trial by jury of a defendant in a criminal case as known at the common law were; (1) a jury composed of twelve eligible persons duly summoned, sworn and impaneled for the trial of the issue; (2) a plea entered; (3) an ample right of challenge both for cause and peremptorily, secured to defendant; (4) a full, fair, and public trial “under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts * * *”; (5) proper and sworn testimony for the jury’s consideration; (6) unanimity of the vote supporting the verdict * * * A departure from any of these essentials would be a deprivation of “the right to trial by jury.” See also Commonwealth v. Blondia, 324 Mass. 564, 87 N. E. 2d, 455.’”

In the case of People v. Hartman, 103 Cal. 242, 37 P. 153, 154, the court said:

“The trial should be ‘public’ in the ordinary common sense acceptation of the term. The doors of the court room are expected to be kept open, the public are entitled to be admitted and the trial is to be public in all respects as we have heretofore suggested, with due regard to the size of the court room, the convenience of the court, the right to exclude objectionable characters, and youth of tender years, and to do other things which may facilitate the proper conduct of the trial.”

In Vol. VI, 3rd Ed. of Wigmore on Evidence, parag, 1834 and 1835, the subject is dealt with from the standpoint of the effect of a public trial “as security for testimonial trustworthiness.”

On page 332, the author says:

“Its operation intending to improve the quality of testimony is twofold. Subjectively, it produces in the witness’ mind a disinclination to falsify; first, by stimulating the instinctive responsibility to public opinion, symbolized in the audience and ready to scorn a. demonstrated liar; and next, by inducing the fear of exposure of subsequent falsities through disclosure by informed persons who may chance to be present or to hear of the testimony from others present. Objectively, it secures the presence of those who by possibility may be able to furnish testimony in chief or to contradict falsifiers and yet may not have been known beforehand to the parties to possess any information.”

There are many cases to be found which hold that a defendant is privileged to waive his constitutional right to a public trial, and where he has waived such right, he cannot thereafter complain. The facts in this case show that the defendants waived the right to a public trial in writing. Certainly they cannot now prosecute error where the court excluded the public at their request. But the defendants cannot waive the right of the people to insist that the proceedings of the courts, insofar as practicable and in the interest of the public health and public morals, be open to public view. In other words, a defendant has no right, constitutionally or otherwise, to a private trial, that is, one hidden from the public view.

In coming to this conclusion, we do not recede from our conclusion in the case of State v. Clifford, 97 Oh Ap 1, affirmed 162 Oh St 370. The courts must be conducted in the interests of maintaining liberty under law. The litigants are the first consideration of the court and the judge may enforce reasonable rules to afford complete court room decorum and prevent any and all activities not directly connected with the trial which would in the slightest distract the attention of those engaged in the proceedings.

The judge in exercising his complete control of the proceedings may exclude those whose conduct is of a disturbing nature, or whose presence is likely to interfere with the administration of justice as well as making such orders of exclusion as will protect the public health, the public morals and the public safety. With these limitations it is the duty of the trial judge to afford both the state and the defendant a trial in “open court.”

It is suggested that the relators are the only contending parties in this action and that they are seeking a privilege for personal advantage. We do not so read the record. Private rights are not here involved. The contentions here are on behalf of the public. The trial of a criminal case is a judicial proceeding to be conducted in “open court,” and open to public view. The trial of a criminal case is a public matter; an action filed in the name of the State. The rights of representatives of the press can, however, rise no higher and by the same token, can be no less, than the rights of any other member of the public. So long as the means adopted in observing trial events stay within the rules of court and do not distract from or disturb the solemnity of the proceeding which is so necessary in the conduct of a public trial in the administration of justice, the right of an employee of a newspaper is the same as any other person. It might be suggested that since a great majority of the public, either because of lack of time or space limitations of the court room, or for lack of direct interest, are prevented or unable to attend judicial proceedings whereby their knowledge about such proceedings can be gained only through the work of news-gathering and disseminating agencies, and therefore, when judicious limitation of those attending a public trial is necessary, such fact should be considered in favor of allowing members of the press to attend. We think there could be no injustice in giving consideration to circumstances of this kind.

We are not here concerned with freedom of speech or of the press, or what should be reported through or by the press or news-gathering agencies. The criminal law must of necessity deal with matters not generally the subject of parlor conversation. We are not called upon to consider the propriety of publishing the sordid details of a criminal trial. It must be recognized that in such a trial, the trial judge not only has the right but is duty bound to exclude from a trial involving a morals offense those, who by reason of immaturity or otherwise would be harmfully affected in attending such a proceeding.

This does not mean that such a proceeding should be conducted in secret. The public morals are not protected by trying to hide its sins behind closed doors. Better that we know our faults that we may ever increase our efforts to live in social rectitude.

From the agreed facts in this case, no question of public health was involved, nor could it be said that the public morals were given consideration or formed the basis of the order of total exclusion of the public from the trial and locking the court room doors while a part of the trial was in progress. Those attending in no way were disturbing the trial. The sole ground for the total exclusion was at the request of the defendants, it being claimed by them that if the members of the public were excluded, they might be able to make the witness “tell the truth” or at least what their version of the truth might have been Such a request cannot be justified and the order excluding the public from a public trial was, under the agreed facts of this case, without legal foundation.

Writ allowed. Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.

CONCURRING OPINION

No. 23454. Decided April 13, 1955.

By HURD, J.

This is a case of first impression in Ohio of such public importance and concern that I desire to express certain of my own views, in addition to those set forth by Judge Skeel. The facts, having been stipulated by the parties, a single question of law is presented, which may be phrased thusly:

Does the court have the power to close the court room to the public and the press during the trial of a criminal case at the request of the defendant who waives in writing his right to a public trial?

It is so contended by the County Prosecutor and other counsel who represent the trial judge in this proceeding. It is by them argued that the right of the accused to a public or private trial rises or falls with the accused; that the accused, by waiving his right to a public trial may. by his mere request, foreclose the right of the public and the press to have the Courts open and free to access. The argument assumes that because the accused is guaranteed the Constitutional right of a public trial, he, by waiving such right, must be allowed the absolute right to a private or secret trial.

In my opinion this argument is untenable. It is based upon a false premise and leads to a false conclusion. The waiver by a person of a constitutional right does not ipso facto grant a right not otherwise sanctioned by law or the Constitution.

In Ohio, the “open court” concept is derived from two basic sources, namely, (1) the Constitution of the State and (2) recognized principles of the Common Law.

Article I, Section 16 of the Ohio Constitution presently provides as follows:

“All courts shall be open, — and—every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law and shall have justice administered without denial or delay. Suits may be brought against the State in such courts and in such manner as may be provided by law.”

It will be noted from the phraseology of the first four words of the section that there is a mandate in unequivocal terms that “all courts shall be open.” This is a positive statement, the meaning of which cannot be misconstrued. While in the same section, the Constitution goes on to say “Every person for an injury done him * * * shall have remedy by due course of law. * * *” such provision does not nullify that part of the section which provides that all courts shall remain open.

The Respondent, by way of brief and - argument, contend's that the word “open” as used in this section of the Constitution means, open to persons who have need for judicial redress; that it means also, open to litigants only because the section in part deals with the rights of litigants. This argument ignores completely the significance of the separation of the open court phrase from the phrase providing for the redress of injuries. As the section now. stands, there are three separate concepts, namely, (1) that the courts shall remain open; (2) that all persons shall have remedy for the redress of grievances and (3) that suits may be brought against the state. The use of a comma after the word “open” followed by the conjunction “and” is important here as connoting a separation of concepts. If the framers in convention assembled had intended otherwise, it is reasonable to conclude that they would have so said in plain, unambiguous and unmistakable terms. This idea is supported by records of the Constitutional Debates which indicate great care on the part of the members of the Constitutional Conventions in the use of language to express their intentions. A review of the history of the Constitutional Conventions and the Debates in connection therewith serves to emphasize this fact and to point up the three separate concepts now contained in Article I, Section 16, above quoted.

Ohio has had four Constitutional Conventions, known generally as the Conventions of 1802, 1850, 1873-74 and the Fourth Constitutional Convention of 1912.

The first Convention met at Chillicothe on Monday, the first day of November, 1802, when representatives of the people met to form a constitution and state government for that portion of the Northwest Territory which was to become the State of Ohio. On Thursday, November 4, after adopting rules of order of - the Convention, electing a president and voting to become a state, it was ordered “that a committee of nine be appointed to prepare a Bill of Rights and a Schedule for the purpose of carrying into complete operation the Constitution and Government.” On Friday, November 26th, the eight articles of the Constitution (the Bill of Rights and the Schedule) were read for the third time and adopted. Article VIII, Section 7 contained the words “All courts shall be open,— and — every person having injury done him in his lands, goods, person or reputation shall have remedy by due course of law and shall have justice administered without denial or delay.”

Again in February, 1850, an Act to call a Convention was passed, the purpose being to revise, amend or change the Constitution of the State. On Thursday, January 2, 1851, the seventy-seventh day of the Convention, the Committee on the Preamble and the Bill of Rights submitted their report. Under their report the Preamble and Bill of Rights was followed by Article I of the Constitution, which in its various sections, comprises the Bill of Rights. Nineteen Sections were listed but the provision “that all courts shall be open” was not included. However, on January 16, 1851, the provision with respect to “open courts” at the suggestion of Delegate Rufus Ranney, was again included and adopted as part of the Bill of Rights. On February 21st, at the afternoon session of the 121st day, the Preamble and Bill of Rights were passed without any discussion and on Wednesday, March 5, 1851, the Section beginning, “all courts shall be open” was established as part of Section 16 of Article 1. (See Ohio Constitutional Convention Debates, Vol. 1 & 2.)

In the Constitutional Convention of 1873-74, on Wednesday, March 4, 1874, the Committee on the Preamble and Bill of Rights reported that having considered the Preamble and Articles of the Constitution, they reported them as they stood without any amendment. This was followed by a full day’s discussion of the Preamble, following which the Sections were voted upon separately. There was no discussion on Section 16, providing in part that “all courts shall be open” and the same was once again adopted as the fundamental law of Ohio.

On Tuesday, January 9, 1912, the Fourth Constitutional Convention convened at Columbus, at which time the provision that “courts shall be open” was again adopted as part of Section 16 of Article I, but was further amended to read: “Suits may be brought against the State in such courts and in such manner as -may be provided by law.” This Section as amended was presented to the voters of Ohio as Proposal No. 4 on the ballot and adopted and now is in the form first above quoted.

Historically, it is important to note that Ohio was carved out of the original Northwest Territory consisting of the area presently comprising the following five states: Ohio, Michigan, Indiana, Illinois, and Wisconsin. While these states were governed originally by the laws of the Northwest Territory, upon their entry into the family of states, each drew up a Constitution as a foundation for their own laws and government. It should also be noted that the Ordinance for the Government of the Territory of the Northwest did not include a provision that “all courts shall be open” but provided inter alia that “The inhabitants— shall always be entitled to the benefit — of judicial proceedings according to the course of the Common Law.” (Emphasis added.)

Two states of the original Northwest Territory have adopted as part of their Constitution the phrase: “all courts shall be open,” namely, Ohio and Indiana. Thus the Indiana Constitution, Article I, Section 12, reads:

“All courts shall be open; and every man for injury done to him in his person, property, or reputation shall have remedy by due course of law. Justice shall be administered freely and without purchase; completely and without denial; speedily, and without delay.”

Wisconsin provides for open and public courts by Statute as follows:

“The settings of every court shall be public and every citizen may freely attend the same, except when otherwise expressly provided by law on the examinations of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial, the presiding judge or justice may, in his discretion, exclude from the i*oom where the court is sitting, all minors not necessarily present as parties or ’ witnesses.” Wise. Statutes 256.14.

The historical origin of the concept of “open court” in the United States appears first to have been included in the “frame of government of Pennsylvania of 1682.” This document, under the signature of William Penn, contains the following provisions:

“V. That all courts shall be open, and justice shall neither be sold, denied or delayed.

“VI. That, in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves; or, if unable, by their friends: . . .”

5 Thorpe, American Charters, Constitutions and Organic Laws, 1492-1908, p. 3060.

In the Charter of the Fundamental Laws of New Jersey, agreed upon in 1676, is the following provision of Chapter XXIII:

- “That in all public courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner, being intended and resolved by the help of the Lord, and by these our Concessions and Fundamentals, that all and every person and persons inhabiting the said Province, shall, as far as in- us lies, be free from oppression and slavery.” 5 Thorpe, p. 2551. (Emphasis added.)

To the same effect, see also the Constitutions of Vermont (1777), Chapter II, Section XXIII, 6 Thorpe, p. 3746; Kentucky (1792), Article XII, Section 13, 3 Thorpe, p. 1275; and, Tennessee (1796), Article XI, Section 17, 6 Thorpe, p. 3423, states admitted to the Union immediately prior to Ohio.

The historical background here set forth prior to the Constitution as amended in 1912 demonstrates two separate concepts: (1) that all courts shall be open as set forth in the Constitution of Ohio and the Constitution of Indiana, and the other concept that every person having injury done him shall have remedy by due process of law. The Indiana Constitution, Article I, Section 12, has a semicolon following the word “open” after which there is a provision for redress of injuries while in the Ohio Constitution, the separation is by a comma. However, in both cases, the separation of concepts is clear and unmistakable. Undoubtedly the Section had a twofold purpose: (1) to insure that justice should be administered in open court and (2) that all persons should be guaranteed the rights of due process of law which is likewise provided by the Federal Constitution. It is, we think, futile to argue that the words “all courts shall be open” as contained in the Ohio Constitution, must be restricted in meaning. Such a construction does violence to the plain words of our Constitution. The rule that statutes or bills or acts of the Legislature shall contemplate but a single subject is not applicable to a constitutional provision. In this connection, it is well to note the amendment made to Article 1, Section 16 of the Constitution of 1912 to the effect that the State may be sued, which creates the third concept as the Constitution stands today. While the Ohio Constitution grants the accused in a criminal proceeding the right to a speedy public trial which is for his benefit, he has no absolute right to a private trial merely because he waives his right to a public trial.

We conclude, therefore, that because the Constitution expressly provides “that all courts shall be open,” a judge, though acting with the best intentions, and from the highest motives as in this case, may not arbitrarily close the courts to public view or deny the public and the press the right to attend and witness the proceedings conducted in open court.

Considering now the second proposition above stated, namely that the “open court” principle is likewise derived from the Common Law, I think we may assert with assurance that the constitutional provisions hereinbefore discussed are declarative of the Common Law.

Counsel for the Respondent in oral argument and brief place great stress upon the decision of the New York Court of Appeals in Matter of United Press Associations, et al v. Valente, Judge, etc., (Dec. 31, 1954) 308 N. Y. 71. That case was decided on the same day that the court decided People v. Jelke, 308 N. Y. 56. In the Jelke case, the court granted a new trial at the instance of the defendant who had not waived his right to a public trial, a statutory right in New York. In the Valente case, a majority of the Court, with two judges dissenting. and one judge abstaining, held that press associations and newspaper publishers have 'no greater rights than any other citizens to attend court sessions and denied relief to the plaintiffs. We have examined that case carefully and have concluded with all due respect that the majority .opinion is inapposite here in view of the provisions of our Ohio Constitution, neither do we find it consistent with the spirit of the Common Law as developed in Ohio. The Constitution of New York does not contain a provision such as is contained in the Constitution of Ohio to the effect that “all courts shall be open.”

In considering the Valente case, it should be noted that Section 4 of the Judiciary Law of New York provides:

“Sittings of court to be public. The Sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trial in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.”

It was the exception contained in the Judiciary Law, not contained in any Ohio Statute, that apparently was relied upon by Valente, J. in the case of People v. Jelke, when he closed the court room to the press and public. It is our view that the opinion of Proessel, J. (concurred in by Dye J.) is more applicable to the spirit of the Common Law of Ohio and in accord with the provisions of our Constitution. In the course of the opinion, Proessel, J., at page 89, states in part as follows:

“The right of the public to attend a criminal trial, like the right of an accused defendant to a public trial, stems from the deep roots of the common law.” (Emphasis added.)

After citing and quoting from text authorities, including Blackstone’s Commentaries, Hale’s History of the Common Law of England; Jenks, The Book of English Law; 9 Halsburys’ Laws of England; 1 Bentham, Rationale of Judicial Evidence, in support of his opinion, 'Judge Proessel further stated at page 91:

“The public right concept has also frequently been adverted to by the courts: ‘The inveterate rule is that justice shall be administered in Open Court.’ (Scott v. Scott, [1913] A. C. 417, 445); ‘One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right.’ (Maryland v. Baltimore Radio Show, 338 U. S. 912, 920); ‘The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.’ (Matter of Oliver, 333 U. S. 257, 270) * * * ‘In this country it is a first principle that the people have the right to know what is done in their courts.’ (Matter of Shortridge, 99 Cal. 526, 530); ‘The people are interested in knowing, and have the right to know, how their servants * * * conduct the public’s business.’ (State v. Keeler, 52 Mont. 205, 218): ‘It is an undeniable proposition, to start with in this discussion that courts of justice should be open to the public.’ (Williamson v. Lacy, 36 Me. 80, 82.)”

We have heretofore adverted to the Ordinance for the Government of the Northwest Territory providing that the inhabitants should be entitled to the benefit of judicial proceedings “according to the course of the Common Law.” Since the foundation of Ohio as a State, our courts have uniformly given support to the doctrines of the Common Law when applicable.

In Railroad Company v. Keary, 3 Oh St 202 (1852) it was held by Ranney J. that:

“The common law of England, when not inconsistent with the genius and spirit of our own institutions, and thus rendered inapplicable to our situation and circumstances, furnishes the rule of decision in the courts of this State.” (Emphasis added.)

For similar dicta, see the earlier cases of Bloom v. Richards, 2 Oh St 387 (1853) Thurman J., and Lessee of Lindsley v. Coats, 1 Ohio Repr. 243 (1823).

The opinion of Judge Skeel contains an excellent discussion of the Common Law principle of “open court” and I shall not attempt to add further to this phase of the subject except to stress, as he does, the importance of the case of State v. Hensley, 75 Oh St 267.

The courts belong to the people, we have said many times. They have been established by the people for the administration of justice according to law and are not to be considered as the private domain of any person or group of persons.

In Craig v. Harney, 331 U. S. 367, decided in 1947, the Supreme Court of the United States said:

“A trial is a public event. Those who see and hear what transpired can report it with impunity * * *. There is no special perquisite of the judiciary which enables it as distinguished from other democratic government, to suppress, edit or censor events which transpire in proceedings before it.”

Certainly the accused may not lawfully insist upon a private or secret trial nor may he waive the right of the public to an “open court.” To hold otherwise would lead to many mischiefs. If an accused in one case should be allowed the right of a private trial, then the accused in another case would equally be entitled to the same privilege, leading to a series of private trials upon the request of the accused, or if an accused, as in the instant case, decided for some purpose of his own to have one part of his trial public and the other private, court proceedings would take on a strange aspect never contemplated in our judicial system. The result would be “reductio ad absurdum.” Crime and corruption grow and thrive in darkness and secrecy. Justice thrives in the open sunlight of day. If we deny to the public and press access to courts of justice, we foster a system of jurisprudence heretofore unknown in the history of Ohio.

I come now to another proposition which I think deserves some comment.

Article I, Section II of the Ohio Constitution provides in part as follows:

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

The First Amendment to the Constitution of the United States provides in part:

“Congress shall make no law * * * abridging the freedom of speech or of the press; * * *”

This amendment being applicable to the States, the Legislature of the State of Ohio may not by law abridge the freedom of speech or the press. Likewise the judicial branch of the government is bound by the same constitutional guarantees.

Recently this Court, in the case of State of Ohio v. Clifford, involving the claimed right of the defendants, three in number, employees of the Cleveland Press, to take photographs of the proceedings during the time in which the court was in session in violation of a direct order of the court, affirmed a judgment of contempt imposed by the trial court, which was affirmed by our Supreme Court. (See 97 Oh Ap 1 and 162 Oh St 370.) In the course of that opinion, which was approved and adopted as the opinion of the Supreme Court, we stated, at page 6, 97 Oh Ap supra (162 Oh St 373):

“A court in enforcing reasonable courtroom decorum, is preserving the constitutional and unalienable right of a litigant to a fair trial, and in preserving such right, the court does not interfere with the freedom of the press. * * * A fearless and untrammelled judiciary is a necessary bulwark in protecting liberty under law and in preserving the rights of the people. There is no claim in this proceeding that all who wanted to attend this session of the court were not permitted to do so, or that the opportunity to report the proceeding was not afforded In keeping with courtroom decorum, such right being limited by requiring that the reporter act so that the proceeding of the court should not be disturbed.” (Emphasis added.)

Considering the language above quoted and emphasized, there is a clear implication that if the trial judge had barred the representatives of the press from attending and reporting the proceedings in question, so long as they acted with due decorum and obeyed the orders of the court, freedom of the press would have been an issue.

There can be no claim in the instant case that the presence of representatives of the press or public would per se create unnecessary disturbance and distraction or disorder. It is, therefore, a necessary corollary to the dictum of State v. Clifford, supra, that citizens, subject to well defined exceptions, generally set forth in Judge Skeel’s opinion, as represented by the public and the press have a right to be present at court proceedings subject to such reasonable rules as may be promulgated by the court. If the courts are public institutions which shall remain open, the representatives of the public and the press, so long as they observe due decorum and obey all reasonable rules laid down by the court, have the right to see, hear and report proceedings of the courts, being responsible always for the abuse of such right.

I agree with Judge Skeel that the rights of the "representatives of the press can rise no higher than that of the members of the public generally and that they possess no greater rights than other citizens but I think they have equal rights which should not be denied, being subject always to all lawful and reasonable orders imposed on all citizens to insure the administration of justice according to law in an atmosphere of dignity, decorum, fairness and impartiality. Furthermore, it is the duty of the trial judge so to control the proceedings in his courtroom that these objectives shall be effectively secured and maintained in such a manner that no persons attendant upon the trial shall be allowed in any way to impede the fair and impartial administration of justice.

The relationship of the press to the courts has been well stated by the Supreme Court of Mississippi in Brannon v. State, 29 Southern Reporter 2nd p. 917 (April 7, 1947) headnote 3, as follows:

“The conception of ‘freedom of the press’ in its relationship to the courts contemplates that the press, subject to certain exceptions, has right to learn and publish with accuracy legitimate facts of trials during the public progress thereof provided the press does so without impeding the process of judicature and the administration of the business of the court.”

The issue as to whether the question before us is now moot because the incident has passed, I think is easily disposed of by examination of Stipulation No. 15 which reads as follows:

“If, in the future, while Respondent Judge Fulton is assigned to the Criminal Branch of the Cuyahoga County Common Pleas Court, a defendant executes and tenders to him in due form a waiver of a public trial, he will deem it his duty to exercise his discretion, in the interest of a fair and orderly trial, to consider the extent to which he should exclude members of the public, including newspapermen, and that the said Judge Fulton considers it to be within his jurisdiction and power to exercise his discretion, if circumstances warrant, to exclude entirely from his court room all members of the public, including newspapermen.”

For the reasons stated, it is my view that the writ of prohibition should be allowed to issue as prayed for.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    ZIMMERMAN et, Plaintiff-Appellees, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23568.
    Decided November 23, 1945.

      Neil W. McGill, John H. Ober, John P. Butler, Anthony C. Carlin, Cleveland, for plaintiff-appellees.
    Ralph S. Locher, Director of Law, William T. McKnight, Asst., Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the Court of Common Pleas of Cuyahoga County. The appellants are the City of Cleveland as a municipal corporation, sometimes hereinafter designated as the City, the regularly constituted members of its Civil Service Commission, sometimes hereinafter designated as the Commission, and its Director of Safety. The appellees are seventeen Police Officers of the City of Cleveland. The appeal is by the City from the findings and judgment of the Court of Common Pleas which reversed the findings and judgment of the Commission on the statutory ground that there was “insufficient cause for removal” from office of such officers.

It appears from the record that on February 11, 1954, Frank W. Story, Chief of Police, suspended from the Police Force the seventeen police officers hereinafter named and on the same day, notified the Director of Safety of the fact of said suspension and the alleged cause therefor. Beginning on the fourth and concluding on the eighth day of 1954, each of the seventeen police officers were interrogated in the office of the Chief of Police by question and answer procedure. A transcript was made of each interrogation, and by letter, under date of February 11, 1954, in the case of each of the police officers, the Police Chief advised the Director of Safety of his action in suspending each of said police officers and the specifications of charges with respect to the same. Each of said communications was in substantially the same language. Subsequent to the original notification to each of the seventeen police officers, two hearings were had before the Director of Safety, the first of which began February 28, 1954 and terminated March 8, 1954, at which time police officers Zimmerman, Koenig, Weber, Bradic, Julius, Zukie, McNamara, Molle, Primosch, Zimlich and Sepesy were tried as a group. The second group of police officers, which included Weiss, Coyne, McGoun, Moran, Pirronelli, and Morgan, were brought before the Safety Director in a hearing which began on March 15th and ended on March 26, 1954. On April 1, 1954, at the conclusion of both of the hearings, the Director of Safety, in writing, advised each of the seventeen police officers separately that he had found the charges as preferred against each and every one of them sustained by the evidence and furnished each police officer with a copy of the order of removal by a letter addressed to each and stated that his grounds for the removal were those contained in his letter addressed to each officer on February 12, 1954.

On April 1, 1954, the Director of Safety removed twelve of the officers and suspended five by notice in writing of his findings and judgment.

On April 1, 1954, the Director of Safety notified the Commission by separate letter as to each police officer dismissed or suspended by him and mailed to the Commission a copy of the order of dismissal or suspension, the original of which had been mailed to each police officer.

Subsequent to the delivery and receipt of the notice above referred to, notice of appeal was filed April 12, 1954, by each of the seventeen police officers to the Civil Service Commission of the City of Cleveland. The Commission duly entered on its journal the receipt of the said notices of appeal and proceeded to a joint hearing and trial of all seventeen officers over the vigorous objections of all seventeen officers to a joint or “mass” trial. Said hearing commenced on June 14, 1954, and terminated November 24, 1954.

At the conclusion of the hearing, the Commission sustained the Director as to the removal from service of seven of said officers, but modified the findings of the Director as to seven other officers from dismissal to suspension and modified the order of the remaining three in reducing the period of suspension.

Appeals from the findings of the Commission were perfected to the Court of Common Pleas of Cuyahoga County on behalf of each of the seventeen police officers. As a part of that appeal, each of the officers assigned eleven grounds of error for the consideration of the Court of Common Pleas.

At the conclusion of a review of the record compiled before the Civil Service Commission and without resort to any other evidence, the Court of Common Pleas ruled as to each individual involved that there was “insufficient cause for his removal.”

Thereafter and within the time allowed by law, the City filed its notice of appeal and bill of exceptions in this Court and assigned as grounds of error the following:

“1. The Court of Common Pleas in finding that there was insufficient cause for removal of each and every one of said police officers, erred and the judgment of said Court is contrary to law.

“2. The Court of Common Pleas in reversing the findings of the Civil Service Commission of the City of Cleveland removing each of the seventeen police officers or patrolmen of the Police Department of the City of Cleveland erred in that said judgment on its merits is against the weight of the evidence.”

Proceeding to a consideration of the first ground of error assigned, we find it necessary to review the charges made against the appellees and the procedure adopted in respect to such charges.

It is clear from the evidence that the charge, as originally preferred against the police officers, was a “charge of gross neglect of duty.” The charges were in writing originally prepared by the Deputy Inspector and forwarded to the Inspector, his immediate superior. An example of these charges is set forth in a communication dated February 9, 1954, to the Inspector as follows:

“Subject: Neglect of duty charges preferred against Patrolman William Zimlich.

“Sir: I was present at the office of the chief of police at 11:15 a. m., February 4, 1954, during the interrogation of Patrolman William Zimlich in the presence of Chief Story and Inspector Lynch. This interrogation was in regard to the failure of members of the Third District to eliminate a complaint of a house of prostitution at 3821 Prospect Avenue, operated by Joe Cremati. From the interrogation, the answers made, and an examination of the transcript, I am of the opinion that Patrolman Zimlich is in violation of the following Rules and Regulations of the Cleveland Police Department: Rule 100. I recommend that these charges be heard by the Chief at his earliest convenience.” (Emphasis added.)

' Rule 100 of the Cleveland Police Department, which it is charged the officers violated, is as follows:

“Rule 100. Officers, members and employees shall not sleep while on duty. They shall not conduct themselves in a cowardly manner, nor show such lack of energy as to amount to gross neglect of duty.” (Emphasis added.)

Referring to the record, we find that the Chief of Police testified that the charges prepared by the Deputy Inspector were the original charges under which the entire proceedings began. He testified in part as follows:

“Q. When these men were up for hearing before you on the question of suspension, what was the way the charges started? How did the proceedings begin?

“A. Written charges were preferred by Inspector Choura, presented to me through Inspector Lynch.

“Q. Now, those written charges came to you as chief, from Choura, but through Inspector Lynch?

“A. That’s right.” (Emphasis added.)

The Chief of Police further testified that the only charge preferred by Choura (Deputy Inspector), was the charge of violating Rule 100 as follows:

“Q. So that the charge made by Choura, and the charge transmitted by Lynch to you, was merely violation of Rule 100, wasn’t it?

“A. That’s right, sir.” (Emphasis added.)

The charges as drawn by Choura were that the officers had been guilty of violation of Rule 100, that is, that they had shown “such lack of energy as to amout to gross neglect of duty.”

Deputy Inspector Choura’s Supervisor, Inspector Lynch, approved this charge as indicated by letter to the Chief of Police on February 11, 1954, an exhibit herein.

That the charges preferred against the officers was a violation of Rule 100 and only that is again confirmed by the Chief of Police as indicated by his further testimony in the record:

“Q. Was there anything but Rule 100 submitted by Patrick Lynch to you?

“A. There was not.

“Q. So that the charge made by Choura, and the charge transmitted by Lynch to you, was merely violation of Rule 100, wasn’t it?

“A. That’s right, sir.” (Emphasis added.)

The conclusion is inevitable, therefore, that the officers involved were charged with violation of Rule 100, that is, “gross neglect of duty and only gross neglect of duty.”

Without going into a detailed analysis of the extended testimony set forth in the record and at the expense of some repetition, we deem it sufficient to state that the entire record shows conclusively that these men were suspended and charged by the Chief of Police with violation of Rule 100 and that part of the rule which reads:

«* * * with such lack of energy as to amount to gross neglect of duty.”

The Charter of the City of Cleveland provides in unmistakable terms that the Chief of Police has the exclusive right to suspend any officers or employees under his control. The same provision likewise applies to the authority of the Chief of Fire. Section 119 of the Charter provides as follows:

“Section 119. The Chief of Police and Fire Chief shall have the exclusive right to suspend any of the officers or employees who may be under their respective management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given by the proper authority, or for any other just and reasonable cause.

“If any officer or employee be suspended as herein provided, the Chief concerned shall forthwith in writing certify the fact, together with the cause for the suspension, to the Director of the department to whom he may be responsible . . .”

It may be noted that this section of the Charter gives the right and power to the Chief of Police to suspend not only for “gross neglect of duty” but inter alia “for any other just and reasonable cause.” It is certain in this case the cause for suspension was predicated upon one ground only, namely, violation of Rule 100 and the Chief of Police, having heard evidence and having specified his cause for suspension, neither the Director of Safety nor the Civil Service Commission had any authority under law to change the charges preferred. The text of the letter sent by the Chief of Police confirms that the cause of suspension was “charges of his being in violation of Rule 100 of the Rules and Regulations governing the Division of Police.” This was again confirmed by Chief Story in further testimony before the Commission to the effect that Rule 100 only prohibits gross neglect of duty and that was the basis on which the charges were made and the suspension ordered and certified to the Safety Director.

The distinction between a charge of gross neglect of duty and simple neglect of duty is also to be found in the testimony of the Chief of Police who in answer to a question said:

“All members at some time, or nearly every day, commit some slight infraction of the rules which have gone unnoticed, and sometimes are the subject of oral reprimands from the superior witnessing them. Sometimes they are even ignored by those officers. Those are simple neglects. There is a neglect of duty in my mind which is more serious and this is not performing the duties which they are supposed to do. I like to think of gross neglect of duty, as the man who wilfully neglects to do his duty.”

This definition conforms to the legal definition contained in Bouviers Law Dictionary which defines gross neglect as “either an intentional wrong, or such a reckless disregard of security and right as to imply bad faith, and therefore squints at fraud and is tantamount to the magna culpa of the civil law which in some respects is quasi criminal.” Bouviers Dictionary page 479, 4 Bush (Ky) 509.

We find from the record before us that the Director of Safety did not proceed upon the charges on which the officers were suspended by the Chief of Police. The Safety Director instituted new and independent charges against these defendants for simple neglect of duty and the same mistake likewise must be attributed to the Commission. There can be no doubt about this. This fact is forcibly demonstrated by the frank statement before the Civil Service Commission, made by the Chief Counsel for the City, which appears at page 1550 of the record as follows:

“MR. WHITE: Before you do that, may I attempt to make one thing crystal clear on behalf of the Director of Public Safety? Perhaps I should consult him, but he is not available for consultation. But I am so sure that this is his ground, that I have no hesitancy in stating it, whether it is for him or against him.

“These men were not found guilty by the Director of Public Safety for sleeping on duty, for cowardice, or for lack of energy amounting to gross neglect of duty. They were found guilty of neglect of duty, and if, in the course of this hearing, you should find that they could only be found guilty under a charge of lack of energy such as amounts to gross neglect of duty, I say to you in open hearing that it is your duty to find that the charges are not sustained, because there is no attempt to prove that charge.” (Emphasis added.)

In consideration of this admission by counsel on behalf of the Director of Safety and the evidence in the record, it is manifest that these officers were not tried by the Safety Director or the Commission upon the charges for which they were suspended by the Chief of Police. Such action was in violation of applicable law, both as defined in the Charter of the City of Cleveland, the applicable statutes of the State and the established law of Ohio. The provisions of Section 119 of the City Charter clearly limit the authority to the Chief of Police of suspension only and limit the authority of the Director of Safety to “* * * proceed to inquire into the cause of suspension and render judgment thereon * * This is also in accord with the statutes of the state as defined by the provisions of §737.12 R. C., the applicable part thereof being as follows:

“Sec. 737.12 R. C. Suspension of Police and Fire Personnel (§§4379-4380 GC).

“The Chief of Police * * * shall have exclusive right to suspend * * * all employees * * *. If any such employee is suspended, the Chief of Police shall forthwith certify such fact in writing to the Director of Public Safety with the cause for such suspension who * * * shall proceed to inquire into the cause of such suspension and render judgment thereon.” (Emphasis added.)

A comment upon this and related sections may be found in 9 O. Jur. (2d), Civil Service, Section 150, pages 492 and 493, which we quote in part as follows:

“The pertinent provisions of the municipal corporations law provide that the chief of police * * * shall have the exclusive right to suspend the officers or employees in their respective departments for any of the causes provided therein. Upon doing so, he must forthwith certify to the director of public safety, in writing, the fact of suspension together with the cause therefor. Within a specified time after receipt by him of the certificate of suspension, the director must inquire into the cause of suspension and render judgment thereon. * * *

“It is apparent that removal requires the action of both the chief of the department and the director of public safety, since the authority of the chief is limited to suspension, and the authority of the director is limited to inquiring into charges upon which the chief has ordered suspension.” (Emphasis added.)

The obvious purpose of these and. similar provisions is to promote the discipline and efficiency of the police and fire departments by lodging the power of suspension in the Chief of Police or Fire exclusively and the power of removal on the charges of suspension with the Safety Director. These provisions afford a reasonable degree of protection to the members and officers of the Police and Fire Departments under Civil Service laws, rules, and regulations, by granting to them a hearing on the charges as preferred, thus avoiding undue risk of the exercise of arbitrary and tyrannical power by one person or a group of persons to the detriment of Civil Service. Obviously, the purpose of Civil Service laws, in addition to establishing a merit system, is to protect employees against unjust charges of misconduct and inefficiency. See 9 Oh Jur. (2d), Civil Service, Sec. 3, page 318, et seq.; State v. Baldwin, 77 Oh St 532; State, ex rel. v. Kohler, 11 N. P. N. S., 497; State, ex rel. v. Kohler, et al., 18 C. C. R. (N. S.) 465 (Circuit Court Cuyahoga County). See also Smith, Appellee v. City of Mayfield Heights, 124 N. E. (2d) 761, 71 Abs 35, hereinafter discussed.

In State v. Baldwin, 77 Oh St 532, 83 N. E. 907, it was held under a former statute which gave the mayor, the same power as is now possessed by the Director of Safety that the mayor had no original jurisdiction to inquire into charges of a member of the police department (except the chief) and that any order of removal which he might issue as a result of such inquiry would be wholly void.

In State, ex rel. Arey v. Sherrill, 142 Oh St 574, 53 N. E. (2d) 501, a case arising in Cincinnati, it was held that a Municipal Charter and Municipal Code granting to a city manager power to appoint, dismiss, suspend and discipline all officers in the administrative service, including members of the police department, could not prevail against the provisions of the General Code, particularly §4380 GC, now §737.12 R. C. above quoted, and that a police officer suspended for the claimed violation of certain rules of the police department had a right to insist that the director of public safety inquire into the cause of such suspension and render judgment thereon, regardless of the provision in the City Charter or Administrative Code.

Applying the law to the procedure followed in this case, we must conclude that the Director of Safety does not have jurisdiction to originate or file charges against an officer of the police department; neither does he have the power or authority to alter or change charges upon which the suspension was based by the chief of police.

For these reasons, the proceedings had, both before the Director of Safety and the Commission, were contrary to law and constituted a denial of. due process.

Another question with respect to the regularity and legality of the proceedings is raised by the police officers which challenges the concept of due process of law as applied to these proceedings.

From the very beginning of the trial of this case before the Commission, objections were entered by all of the police officers here put upon charges to a joint or “mass” trial which objections were regularly and consistently overruled by the Commission.

Each officer was charged separately by the Chief of Police by a separate letter addressed to each officer individually, and separate letters of notice of suspension of each officer were transmitted to them and to the Director of Safety, who in turn, notified each officer separately as to the hearing before him and as to the action taken thereon.

There is no claim by the City that “in failing to eliminate the cause of the complaint” at 3821 Prospect Avenue that the seventeen officers were acting in concert or in furtherance of a conspiracy to defeat honest law enforcement or that they consciously or intentionally acted to permit violation of the law in their district or, in any other way joined in any act or deed in furtherance of an agreed purpose to neglect or fail in the performance of their duties as officers of the Cleveland Police Department. Furthermore, there is no charge and ho evidence that any of these officers were guilty of corruption in any way as indicated by the following testimony of the Chief of Police:

“Q. ... Is there any evidence, so far as you know, that any one of these men was guilty of any corruption, or the taking of any money, or of any bribe, or anything of value as a consideration for leaving Cremati’s place stay open?

“A. There is no evidence or no such charge.

“Q. ... At any rate, there is no such evidence?

“A. No, sir.

“Q. And furthermore . . . your knowledge of each of these 17 men is such, is it not, that you personally believe each one of them to be honest, do you not?

“A. I do.”

The record shows that some of these officers are patrolmen, some are lieutenants and some are captains having varying degrees of responsibility according to rank. Also, it should be noted that their periods of duty in the Third District, which is the area involved, differed substantially as to time and that some were not on duty at times when it is claimed there were neglects of duty. Furthermore, the record is clear, according to the testimony of the Chief of Police, that there never had been any charges previously placed against any of these officers for negligence, incompetence or dereliction of duty in any manner. In fact, three of these officers, McNamara, Sepesy and Zimlich, had previously been cited for merit pay raises for diligence, efficiency and devotion to duty beyond that normally required or expected and the merit pay raises were approved by the Chief of Police and Assistant Director of Safety as late as February of 1953. Furthermore, some of these officers had spent their entire adult lives as members of the Police Department. The evidence offered by the City in support of its charge of gross neglect of duty against an officer of the Police Department,, in most instances, had no application to like charges against the other officers joined in the trial. Also, during the trial, objections were entered by one or more of the officers as to the competence or admissibility of evidence of specific charges as against the objector or objectors, such objections being overruled on the promise that such evidence would later be connected up with such objecting officer. This was not done.

It is true that in a hearing before an executive, board or commission, greater latitude is allowed than in the trial of a criminal case in joining defendants who are connected in a general way with the facts of the case where the commission or board can separate the evidence as it has bearing on each of those charged. Such rule must, however, be circumscribed by reason. At the time this case was tried, a defendant in such a proceeding had a right under the law to appeal an adverse finding or judgment and such appeal was required to be on the evidence before the Commission. Under such circumstances, would an individual defendant in such a proceeding be required to produce the entire record on appeal at his expense? Or would he, at the risk of having his appeal dismissed for an incomplete record, be obliged to choose that evidence which he concluded was applicable only to him? Here the record was taken over an extended period of time, consisting of over three thousand three hundred pages contained in six volumes with seven volumes of exhibits, with the evidence so intertwined and interwoven as to make severance as to any one defendant practically impossible.

As heretofore indicated, many of the claimed defaults in performance of duty as to some of the officers took place before others were in any way associated with the case or with the area in question or even with the department.

We do not hold as a matter of law that a municipal administrative body, such as the Commission, may not at times join one or more persons in a single hearing where the circumstances are such as to show joint action or a conspiracy or where the conduct as to each of the persons charged can readily be ascertained and determined separately from that of the others. But under the circumstances of this particular case, where there are no charges of corruption, insubordination, or failure to obey orders or to make true reports, in fact no specific charges with respect to any specific acts but only an omnibus charge of “such lack of energy as to amount to gross neglect of duty,” to join all seventeen officers charged separately, there being no claim of conspiracy or concerted action between them, puts all of those charged at a serious disadvantage of such proportions as to deny each of the accused officers rights of due process to which they are entitled under the law.

Under such circumstances, the convenience of the Commission in carrying on a “mass” trial should give way to the superior rights of officers with a long unblemished record of performance of duty in the Police Department and a reasonable severance should have been granted. Otherwise, the fundamentals of civil service, imbedded in our constitution, laws, rules and regulations, afford little or no protection to an upright, honest officer joined with many others, who happen to be members of the same police department, operating in the same district. The dangers of the “transference of guilt,” if guilt there be, was pointedly declared by the Supreme Court of the United States in a case involving criminal conspiracy. In such a case, each person is charged with liability for the acts of another conspirator, once evidence of conspiracy is established, whether he knows of the acts of others or not. Here there is no claim of joint acts, joint torts or joint conspiracy. In Kotteakos v. United States, 328 U. S., 750, at pages 773-774, it is said:

“Criminal they may be, but it is not the criminality of mass conspiracy- They do not invite mass trial by their conduct. Nor does our system tolerate it. That way lies the drift toward totalitarian institutions. True, this may be inconvenient for prosecution. But our Government is not one of mere convenience or efficiency. It too has a stake, with every citizen, in his being afforded our historic individual protections * * *.

“The dangers for transference of guilt from one to another across the line separating conspiracies, subconsciously or otherwise, are so great that no one really can say prejudice to substantial right has not taken place.”

In the recent case of Smith, Appellee, v. City of Mayfield Heights, 124 N. E. (2d), 761, 71 Abs 35, supra, decided February 23, 1955, by this Court (motion to certify overruled July 29, 1955), we held inter alia that even though one holding a public office does not have a vested right thereto, he is entitled to the protection of the due process of law provisions set forth in the Constitution of Ohio and the Constitution of the United States, in any proceeding before a commission to remove him from such office, and that any hearing involving one’s rights of whatever nature provided by law must conform to the standards of a fair trial and are subject to the protection of the general rules of fair play which govern society, and this is true whether the hearing is before a Court of law, an executive, or a commission, and while, as heretofore stated, non-judicial bodies, such as commissions, are not expected to be held to the same strict conformity to regular rules in the introduction and presentation of evidence as judicial bodies, they, nevertheless, must not disregard fundamentals having to do with the observance of the safeguards provided every person by the constitutional provisions, federal and state, that no person shall be deprived of life, liberty, or property without due process of law.

Therefore, for fatal procedural defects appearing plainly on the face of the record, the first assignment of error, that the judgment of the Court of Common Pleas was contrary to law, must be overruled, and the finding and judgment of the Court of Common Pleas that there was “insufficient cause for removal,” must be sustained.

Counsel for the City have cited the case of Sorge v. Sutton, 159 Oh St 574 (1953), 113 N. E. (2d) 10, and In re Koellner, 160 Oh St 504, 117 N. E. (2d) 169, indicating that the trial judge substituted his judgment for that of the Commission in support of their claim that it was the duty of the Court of Common Pleas to sustain the findings of the Commission as to each officer in this case. We do not so read the record.

It should be noted that the principle issue decided in Sorge v. Sutton and In re Koellner is that the Court of Common Pleas is without jurisdiction to try an appeal from a decision of a municipal civil service commission “de novo.” This is established by the second paragraph of the syllabus in the Sorge case supra as follows:

“2. Under §486-17a GC (§143.27 R. C.), the ‘appeal’ from a decision of a municipal civil service commission to the Court of Common Pleas, ‘to determine the sufficiency of the cause of removal,’ accorded members of police and fire departments in the classified civil service contemplates only a review of the proceedings before the commission as to their legality and regularity and to determine the sufficiency of the cause of removal, and not a trial de novo.”

and by paragraphs one and two of the syllabus of the Koellner case supra:

“1. Under §486-17a GC (§143.27 R. C.), a police captain, who appeals to the Court of Common Pleas from a decision of a civil service commission demoting him to the rank of detective, is not entitled to a hearing de novo in the Court of Common Pleas.

“2. In such an appeal, it is reversible error for the court to conduct a hearing de novo and substitute its judgment for that of the commission, where there is ample evidence in the record of the hearing before the commission to justify its decision of demotion.”

But it cannot successfully be asserted here that the trial court heard this case “de novo.” Quite the contrary is true for this case was tried on the record made before the Commission and no other evidence.

In this connection, however, it should also be noted that the Sorge case, 159 Oh St 574, also holds that the hearing before the Court of Common Pleas contemplates a review of the proceedings before the Commission as to their legality and regularity. This is clearly shown in the syllabus above quoted and the comments of the court throughout its opinion, particularly at pages 578 and 579. At page 579, the court quotes with approval from an opinion rendered by the First District in the following language:

“The Court of Appeals, of the First Appellate District in the case of Kearns v. Sherrill, City Mgr., 63 Oh Ap 533, 541, 27 N. E (2d), 407, 411, considered the same problem we now have, and we are in agreement with the following language used in the opinion in that case.

«* * * we that the language of §486-17a GC, must be construed to confer upon that court jurisdiction to review the proceedings of the civil service commission to determine whether it had exercised the authority conferred, upon it in accordance with the statutes, and whether due process of law and other constitutional safeguards had been observed, thereby excluding from the review the administrative discretion exercised by the appointing officer and the civil service commission. (Emphasis added.)

It is clear that in the instant case the Court of Common Pleas confined its decision to a review of the proceedings before the Commission and on such review determined that the cause of the removal as to each of the appellees was insufficient. This action was in accordance with the provisions of §143.27 R. C. and consonant with the dictum of the Supreme Court in the Sorge and Koellner cases herein cited and quoted.

Considering the second assignment of error, namely, that the judgment of the Court of Common Pleas, on its merits, is against the weight of the evidence, we are clearly of the opinion that the only charge these police officers had to meet in the trial before the Civil Service Commission was that they were guilty “of lack of energy amounting to gross neglect of duty.” as the charge was submitted to the Chief of Police by the commanding officer of the Third District. Upon the admission of the City, that such charge was not and could not be proved, we have stated that as a matter of law alone, the judgment of the Court of Common Pleas, to the effect that there was insufficient cause for removal, must be sustained. However, we are unable to determine from the entry journalized by the Court of Common Pleas whether the judgment was predicated upon the irregularity and illegality of the proceedings, including the denial of due process of law or whether the judgment was predicated upon the evidence alone.

While we think that the legal questions here decided are dispositive of the issues presented for which reasons alone the judgment of the Court of Common Pleas must be affirmed, we will refer briefly only to certain items of evidence as it would serve no good purpose to analyze the evidence at length.

Cremati’s place was a co-called boarding house, housing from twenty to forty men of Puerto Rican descent, being laborers engaged in work here, but a reading of this record leaves no doubt that Cremati’s place was also used for illicit purposes and was a festering sore upon society. It has long since been closed and Cremati was convicted of a heinous felony, forcible rape upon a minor, which conviction was affirmed by this court. The record raises a serious question as to the responsibility for the existence of the illicit operations at this place. It is admitted in the record that the police officers and patrolmen joined in this action under omnibus charges did not have the authority to determine the policy of law enforcement in their district, being obligated only to execute policy determined by their superior officers. It is clear from the record that superior authority determined upon a policy of harassment which means that frequent visits should be made by police officers to a suspected place of gambling or prostitution on the theory that the fact that police officers go in and out of the place at frequent intervals will so annoy and disturb the patrons that it will eventually be unprofitable and be forced to close. This policy of harassment by frequent visits to a suspected place in the Third District was not limited to the officers charged but included also members of the vice squad who were not charged but included all officers up to and including captains, and this policy was in effect throughout 1951, 1952, 1953 and January of 1954.

For these reasons, the trial judge could have found from the evidence that the police officers involved were pursuing the policy established for them by their superior officers in making frequent visits to the Cremati place. The Chief of Police defined the policy of harassment, as shown by the record, as follows:

“Q. Well, the long and short of it is that it is thought that if there is a procession of police officers waltzing in and out of the place, the ordinary customers might be a little embarrassed and take their business somewhere else?

“A. That’s right.”

He testified that the same duty was imposed upon the plain clothes-men. The Inspector likewise testified to the same effect.

This policy of harassment was continuously in effect during the stated years even though the Inspector in charge of the District conceded that Cremati’s place could have been effectively closed by placing one policeman in uniform on the premises. This was admitted in the following testimony of the Inspector as follows:

“Q. Inspector, I put a question to you in the hearing we had before Director McCormick. I would like to put it to you again to see if your answer is the same. The question was: ‘If you put the worst policeman that you know of in the department, in Joe Cremati’s place from nine in the morning until nine at night and he left his suit on, and stayed awake, the place would close, wouldn’t it? And you answered ‘It certainly would.’ Would that be your answer today?

“A. Yes.’’

From this testimony in the record and upon a review of the entire evidence contained in the record, when considered in the light of all the surrounding facts and circumstances and the orders which those charged were directed to carry out by their superior officers, we conclude that it cannot be said that the trial court abused its discretion or that the judgment of the Court of Common Pleas was contrary to the manifest weight of the evidence in holding that there was “insufficient cause for removal” or suspension of the seventeen police officers from their positions as such officers.

Holding these views, the judgment of the Common Pleas Court is affirmed. Exceptions allowed. Order see journal.

KOVACHY, PJ, HURD, J, SKEEL, J, concur.


author: By GRIFFITH, J.

text:
    STATE, Plaintiff-Appellee, v. ROCHE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5279.
    Decided November 4, 1955.

      Samuel L. Devine, Pros. Atty., Fred L. Newsom, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    W. B. Bartels, Columbus, for defendant-appellant.
    (GRIFFITH, J, NICHOLS, PJ, of the Seventh District, and FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

The defendant was convicted by a jury of violating §2901.16 R. C., in that he used an instrument with intent to procure the miscarriage of a pregnant woman. The indictment contains six counts and- he was found guilty on all counts and sentenced to imprisonment in the Ohio Penitentiary. This appeal is from that sentence.

The defendant assigns error in nine particulars, but in his brief and argument he limits his complaints to two contentions:

(1) That the Court erred in refusing to sustain a motion of defendant for dismissal made at the close of the evidence.

(2) That the Court erred in refusing to sustain a motion of the defendant made before the trial to suppress all evidence seized on a search of defendant’s premises.

The pertinent part of §2901.16 R. C., omitting those matters not pertinent to the instant case, reads as follows:

“No person shall use an instrument with intent to procure the miscarriage of a woman, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose.”

At the end of each count in the indictment appears the following: "and was prematurely delivered of said child.” The statute as now framed makes no mention of the words “child,” “embryo” or “fetus,” but only terminology of “miscarriage” is used. The criminal act of destroying the fetus at any time before birth is termed in law “procuring miscarriage.” The trial judge in his charge to the jury stated that the words as they appear in the indictment “was- prematurely delivered of said child” were surplusage and instructed the jury to disregard these words. Without these words the indictment alleges sufficient matter to indicate the crime and person charged.

Sec. 2941.08 R. C. is headed: “Certain defects do not render indictment invalid,” and under that heading, under subsection (I) it provides:

“For surplusage or repugnant allegations when there is sufficient matter alleged to indicate the crime and person charged.”

In our view the words in the indictment “and was prematurely delivered of said child” were nonessential and useless additions thereto and the Court in permitting them to remain in the indictment throughout the trial committed no error prejudicial to the defendant. The primary function of an indictment is to inform a defendant of the offense with which he is charged so that he may prepare for his trial. The indictment in this case fulfilled that purpose and the defendant was in no wise misled or prejudiced. The trial court committed no error in overruling the motion of the defendant for dismissal made at the close of the evidence.

It is earnestly contended by the defendant that the trial court committed prejudicial error in ref rising to suppress all evidence seized on a search of defendant’s premises. There is no conflict in the record as to the issuance of a search warrant prior to searching the premises of the defendant. The only controversy is whether or not it was displayed to the defendant himself at the time he was placed under arrest. Officer Earl Weeks testified that the search warrant had been shown to Dr. Roche at the time of his arrest. The defendant’s contention of error in this respect is disposed of by the case of State v. Lindway, 131 Oh St 166, decided on May 27, 1936, syllabi 4 and 5 reading as follows:

“In a criminal case, evidence obtained by an unlawful search, is not thereby rendered inadmissible, and, if otherwise competent and pertinent to the main issue, will be received against an accused.

“An application or motion to suppress or exclude such evidence made before trial or during trial is properly denied. The court need not concern itself with the collateral issue of how the evidence was procured. (Fifth paragraph of the syllabus of Nicholas v. City of Cleveland, 125 Oh St 474, and Browning v. City of Cleveland, 126 Ohio St 285. overruled.) ”

In the body of the opinion at page 181, Judge Zimmerman says:

“Of course, if the state of Ohio should ever deem it expedient as a matter of public policy to declare that evidence wrongfully seized can not be used against a defendant in a criminal case on the basis that its admission encourages the lawless acts of over-zealous officers of the law in their methods of obtaining evidence, that would be an entirely different matter which is not our concern here.”

Since the holding in this case has not been disturbed and the Legislature has not acted, this pronouncement is the law of Ohio today and controls and disposes of the matter of suppression of evidence, whether such evidence was obtained legally or illegally. There is a wealth of evidence in the record which conclusively shows that the jury was well warranted in finding that the defendant used an instrument on the person of six women with intent to procure a miscarriage in each instance and that as a consequence each of said six women did miscarry and that in each case the use of such instrument was not necessary to preserve life nor was such use advised by two physicians to be necessary for that purpose.

We have examined and considered each and every claimed error in addition to those heretofore discussed, and we find in the record no error which would justify a reversal of the judgment under review.

The judgment, therefore, is affirmed.

NICHOLS, PJ, FESS, J, concur.


text:
    STATE, Plaintiff-Appellee, v. ROCHE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County,
    No. 5279.
    Decided January 13, 1956.
    Samuel L. Devine, Pros. Atty., Fred L. Newsom, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    John F. Seidel, W. B. Bartels, Columbus, for defendant-appellant.
    (GRIFFITH, J, NICHOLS, PJ, of the Seventh District, and FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

The appellant has filed a motion for an order reconsidering the decision heretofore made by this Court, and for an order granting him a new trial for the reason that one of the jurors was not at the time of the trial a qualified elector, and, therefore, not qualified to sit as such juror.

It appears from the affidavit attached to the motion that one of the jurors first registered as a voter in Franklin County on September 27, 1950; that she voted at the general election in 1950 and again in 1952. Having failed to vote in 1953 and 1954, her registration card was removed from the active files, and it became necessary for her to re-register before she could be permitted to become a voter again. (See §3503.25 R. C.)

At all times during this period, she resided at 2739 Howey Road in Columbus, and the affidavit further shows that on September 28, 1955, the same juror registered from the same address making her eligible to again become a voter in Franklin County. At the time she was impaneled as a juror in this case, she was not a registered voter.

Was she a qualified juror under such circumstances? This is the sole question to be determined by this Court in passing on this motion.

Sec. 2313.08 R. C., provides that the jury commissioners shall select from the list of electors certain names, and this list coming from the Board of Elections shall be used unless otherwise ordered by the Court. This method of selection is not exclusive.

In order to find the meaning and definition of “elector,” we must look to the Constitution of Ohio. Article V, Section 1, provides:

“Every citizen of the United States of the age of twenty-one years who shall have been a resident of the state one year next preceding the election and of the county, township, or ward in which he resides such time as may be provided by law, shall have the qualifications of an elector and be entitled to vote at all elections.”.

Thus, the Constitution defines an elector and enumerates the essential qualifications of an elector. The juror had been a resident of the state, county and ward more than one year, and she met the age requirement. The matter requiring persons who are electors to register is for the purpose of showing the Board of Elections that they do have the necessary qualifications.

In adopting registration, such act does not add to the constitutional qualifications required of electors but is for the purpose of ascertaining who are qualified electors.

There is a difference between an elector and a voter. The voter is an elector who votes. An elector may not have her name on the registration list at all. She may not vote, but she still retains her qualifications of an elector. The juror in question passed all the necessary qualifications of an elector as required by Article V, Section 1, of the Constitution, and the fact that she neglected to re-register in nowise affected her status as an elector.

She had been registered as an elector prior to her jury service and, by virtue of such registration, entitled to vote. She had a right to register or not. She possessed all the qualifications, enumerated in the Constitution of an elector, and having such qualifications, was eligible for jury service in Franklin County, although she could not vote because she failed to register.

The difficulties involved in maintaining the appellant’s claim are obvious and conclusive against its validity.

Qualifications for jury service are statewide in their application. If the contention of the appellant is tenable, then an elector in Franklin County who is required to register and fails to re-register, would become ineligible for jury service thereby, whereas an elector in Monroe County, where no registration is required at all, would be eligible for jury service at all times. Such contention would lead to this impossible situation and would violate the constitutional definition of an elector.

It does not appear from the record that the appellant was prejudiced or was prevented from having a fair trial by reason of her failure to register. (Sec. 2945.83 R. C.) He was not misled or prejudiced in anywise by the matter of whether the juror was a voter or not. She was an elector and met all the requirements as such, and no constitutional rights of the defendant have been violated. Motion for an order reconsidering the decision, therefore, is hereby overruled.

NICHOLS, PJ, PESS, J, concur.