
    Pierpont v. The State of Ohio.
    
      (Decided June 18, 1934.)
    
      Miss Jessie Levy, Mr. William Fogarty and Mr. Clarence C. Miller, for plaintiff in error.
    
      Mr. Earnest M. Botkin, prosecuting attorney, Mr. Joseph H. Flick and Mr. Benjamin Motter, for defendant in error.
   Williams, J.

Harry Pierpont, plaintiff in error here, was indicted for the murder of Jess Sarber, the sheriff of Allen county. He was tried in the Court of Common Pleas, was found guilty without a recommendation of mercy, and sentenced to death.

It further appears that in May, 1933, John Dillinger was paroled from the state prison at Michigan City, Indiana, where he had been serving a sentence for robbery; that, later, on or about September 2á, 1933, he was arrested at Dayton, Ohio; that four days later he was delivered to the sheriff of this county and brought to Lima and placed in the county jail upon a charge in connection with the robbing and looting of The Citizens National Bank at Bluffton, Ohio, which occurred in August, 1933; and that he remained in the jail until about six thirty p. m., on October 12, 1933, when he was released, as the state claims, through the efforts of the defendant below, Harry Pierpont, and five alleged conspirators, Charles Makley, Russell Clark, Edward Shouse, John Hamilton and Harry Copeland, the climax of this jail delivery being the murder of Jess Sarber.

On the night of October 11, 1933, the defendant’s alleged rescuers had stayed at the home of Pierpont’s parents near Leipsic, Ohio. Late in the afternoon of October 12 they came to Lima in two automobiles, wbieb they parked near tbe county jail. The state’s evidence tends to show that at about six thirty p. m., of that day, Pierpont, Makley and Clark entered the jail office by the east door without knocking. At that time the sheriff, Jess Sarber, was seated at his desk, his wife sat in a chair opposite, and a deputy sheriff, Wilbur Sharp, sat on a davenport close at hand. The state’s evidence further tends to show that as the three men entered the office one of them said: “We are from Michigan City, Indiana, and want to see John Dillinger.” The sheriff asked them for their credentials, whereupon they all pulled guns, and one of them said, “These are our credentials.” The sheriff started to rise, but was shot in the left side by Pierpont, plaintiff in error here, and as he fell to the floor he was beaten by Pierpont and others with the guns, and was so seriously injured that he died about eight p. m., the same evening. About five shots were fired in all. Mrs. Sarber was then forced to give up the keys and the deputy sheriff was compelled to unlock the door leading from the office into the jail proper. Dillinger was there waiting, and promptly made his escape with the three who had entered the jail and the three who had remained outside, on guard, or in charge of the automobiles.

Dillinger had become acquainted with the six alleged rescuers in the prison at Michigan City, Indiana, where all had been incarcerated at the same time, Copeland having been released therefrom on parol during the summer of 1933, and on September 26, 1933, Pierpont, Makley, Clark, Shouse and Hamilton, with five other prisoners, having made a daring escape from the prison under the leadership of Pierpont, who in some unknown way had succeeded in having guns brought in to him within the prison walls. After making this escape, Pierpont, Makley, Clark, Shouse and Hamilton went to Hamilton, Ohio, where they met Copeland.

The evidence tends to show very strongly that Pierpont and his confederates were exceedingly friendly with Dillinger and had planned the jail delivery. Apparently bent on the release of Dillinger they had remained in and about Hamilton and Cincinnati until they went to the home of Pierpont’s parents on the night of October 11, 1933.

After the commission of the murder of Jess Sarber it seems that Dillinger and the six rescuers remained together much of the time, and on January 25, 1934, Dillinger, Pierpont, Maldey and Clark were arrested in Tucson, Arizona, by the police of that city. Plaintiff in error, Pierpont, was returned to the Indiana state prison, and was later brought to Lima where he was arraigned, plead not guilty and was placed on trial. At the time of his arrest in Tucson, Pierpont had in his possession the revolver of the sheriff, Jess Sarber, which had been taken from him the night of the murder.

An indictment • was returned against Pierpont October 27, 1933, and charges “that Harry Pierpont, whose real and true name is to the grand jury unknown, on the 12th day of October in the year of our Lord one thousand nine hundred and thirty three, at the county of Allen, State of Ohio aforesaid, unlawfully, purposely and of deliberate and premeditated malice, killed one Jess Sarber.”

A demurrer to the indictment was filed and overruled by the court. It is contended on behalf of plaintiff in error that this action constituted prejudicial error.

The indictment is based on Section 12400, General Code, which, so far as applicable to this case, is as follows:

“Whoever, purposely, and * * * of deliberate and premeditated malice * * * tills another is guilty of murder in the first degree * * *."

Section 13437-6, General Code, provides:

“The following forms may be used in the cases in which they are applicable, but any other forms authorized by this or any other law of this state may also be used, and other brief and comprehensive forms applicable to other offenses may be used. * * * “Murder in the First Degree — A. B. unlawfully, purposely and of deliberate and premeditated malice, killed C. D.”

The indictment follows the form prescribed by the statute, and the court properly overruled the demurrer.

The indictment, when it was returned, was signed and subscribed by Norman Evans as foreman of the grand jury, but he failed to write the words “A true bill” thereon above his signature.

Section 13436-17, General Code, provides:

“At least twelve of the grand jurors must concur in the finding of an indictment, and when so found, the foreman shall endorse on such indictment the words ‘A true bill’ and subscribe his name as foreman.”

It appears that the bill of indictment was found and returned in the regular way, and that the omission was inadvertent. Motion to quash on this ground was overruled and the court permitted the defect to be corrected by writing the omitted words above the signature of the foreman.

As Section 13437-29, General Code, permits the amendment of an indictment before, during or after trial, “in respect to any defect, imperfection or omission in form or substance,” we are of the opinion that the court below did not commit prejudicial error in overruling the motion to quash and in permitting the amendment to be made. Breinig v. State, 124 Ohio St., 39, 176 N. E., 674.

It is contended that the court erred in permitting the defendant to be handcuffed and shackled with leg irons during the trial. However, during all the time the defendant was on the witness stand the shackles were off.

■It is true that ordinarily it is an invasion of the rights of an accused person to force him to remain shackled during his trial, but the right to be free from bonds is not absolute and there may be exceptions. We think the rule is accurately and concisely stated in 8 Ruling Case Law, 68, Section 22, from which we quote:

“At early common law when a prisoner was brought into the court for trial, upon his plea of not guilty to an indictment for a criminal offense, he was entitled to make his appearance free from all shackles or bonds. This is his right today in the United States. The spirit of the law is that a prisoner, upon his trial before a jury, shall have the unrestrained use of his limbs, and shall not suffer any physical bonds or burdens which might tend to confuse or embarrass his mental faculties. Furthermore, a prejudice might be created in the minds of the jury against a prisoner who should be brought before them handcuffed and shackled, which might interfere with a fair and just decision of the question of the guilt or innocence of such prisoner. It is recognized that it lies within the' discretion of the trial court to have the prisoner shackled when it is manifest that such a precaution is necessary to prevent violence or escape, and an appellate court will not revise the trial court’s action except in a clear case of abuse of discretion.”

There are additional statements bearing upon the question in the remainder of this paragraph, but some of them, in our judgment, are not wholly sound and we have not quoted them.

In the case of Hall v. State, 199 Ind., 592, 159 N. E., 420, the Supreme Court of Indiana has passed upon the question. In that case the court caused the defendant to sit with his feet fettered during the trial. He was convicted, and the conviction was affirmed.

In the course of the opinion, at page 600, the following significant language appears:

‘ ‘ Blackstone early stated the law to be (4th Com., 332) that: ‘The prisoner must be brought to the bar without irons or in any manner of shackles or bonds, unless there be evident danger of escape, and then he may be secured with irons,’ and the courts have uniformly held that a defendant in a criminal trial is always entitled to appear unfettered if he properly conducts himself while under arrest and during the trial. But where the trial court has good reason to believe that the defendant is a desperate and dangerous criminal and that there is serious danger of his harming those about him in the court-room or of his attempting to escape or being released by others, it may exercise its sound and enlightened discretion and order him restrained in such reasonable manner as it deems necessary. See cases cited in 16 C. J., 819; 8 R. C. L., 68; Note, 5 Ann. Cas., 959; Note, 39 L. R. A., 821; and the action of the court in so doing will not be error unless there has been a clear abuse of discretion. Gray v. State (1924), 99 Texas Crim. Rep., 305, 321, 268 S. W., 941; Territory of New Mexico v. Kelly (1882), 2 N. M., 292; Poe v. State (1882), 10 Lea (Tenn.), 673. In the modern court-room as little show of arms must be made as possible and ordinarily the necessary restraint can be accomplished by placing ununiformed guards near the prisoner. State v. Kenny (1907), 77 S. C., 236, 57 S. E., 859; State v. Duncan (1893), 116 Mo., 288, 22 S. W., 699; State v. Rudolph (1904), 187 Mo., 67, 85 S. W., 584; or, as was done in this case, by shackling his ankles. Faire v. State (1877), 58 Ala., 74, 82.

“While the appellant admits that the necessity for a prisoner to be restrained by shackles or manacles during the trial must be left to the sound discretion of the trial judge, as decided by the court in McPherson v. State (1912), 178 Ind., 583, 99 N. E., 984, he maintains that there must be some evidence offered to the court at the trial of imminent danger of escape or violence to others based upon the conduct of the prisoner at the time of the trial, to authorize the court to exercise its discretion to require physical restraint of the prisoner and cites State v. Kring (1877), 64 Mo., 591, and State v. Williams (1897), 18 Wash., 47, 50 Pac., 580, 39 L. R. A., 821, 63 Am. St. Rep., 869.”

In that case the court also held that it was not necessary that the court’s action be based wholly upon matters that occurred at the trial, and this would seem to be the better rule. We quote again from the opinion, at page 603:

“Appellant’s contention that the knowledge upon which a court bases its discretion to refuse a prisoner’s request that fetters be removed from his legs must come only from evidence offered at the trial does not appear to us to be sound.”

All the authorities seem to state that there is an exception to the rule that the defendant must not be shackled, handcuffed or bound during trial where there is evident danger of escape or rescue. Blair v. Commonwealth, 171 Ky., 319, 188 S. W., 390.

It is also claimed that the court erred in permitting armed, officers to remain in the court room. It seems that the present sheriff, who is the son of the late sheriff, was in the court room at one time with a machine gun, but the court ordered him to take it out, and he did not come in with it again. It also appears that some officers were about the room with belts on, with pistols in the holsters, and that one deputy had a rifle at least a part of the time. It is further contended that the court erred in permitting the militia to form a cordon of soldiers about tbe court house, who only allowed people to enter who had been properly searched and who presented passes, and that the searching process also applied to prospective jurors who were called in connection with the trial of the case.

The reasons which prompted these precautions, all must admit, were unusual. A situation exactly like it has not been presented, so far as we know, in the history of the country. It was common knowledge that John Dillinger escaped from prison in Indiana by threatening, officers with a mock pistol, and it was commonly reported that he would attempt to liberate Pierpont and other associates from the Allen county jail, and thus repay the debt of gratitude he owed because they had delivered him previously from that same jail by threats, intimidation and the killing of the sheriff. The papers throughout the United States were ablaze with the news of Dillinger’s whereabouts, and information came through the press, and it was a matter of common knowledge that he was heavily armed and unwilling to be taken alive; in fact, that he would shoot, and shoot to kill. It was evident to the court and everyone else, and so was a matter of common knowledge, that Dillinger, Pierpont and their pals were dangerous gangsters, bank robbers and killers, determined to have their liberty, no matter what the cost in human life. Moreover, the dangerous character of these men is disclosed not only by evidence adduced by the state, but also by defendant’s own testimony while on the witness stand in his own defense.

It does not seem that it was necessary to take evidence upon these questions, because the facts were so notorious that the man on the street knew them, thus presenting a situation which threatened the orderly administration of justice itself. It was the duty of the trial judge to prepare to meet any emergency, and lie did so; and it was not only within his sound discretion to take steps which would forestall forcible release of Pierpont and his companions in crime by Dillinger and his gang, but it was his duty.

Under these circumstances this court cannot say that the trial judge abused his discretion in taking the unusual precautions that he did. In our judgment there was no prejudicial error in this respect.

It is also claimed that the defendant was denied his constitutional right of a public trial. The authorities are practically unanimous that right to a public trial does not mean that the court cannot exclude some of the public in the exercise of a sound discretion, and conditions may arise under which it is proper and necessary to exclude a portion of the public. 8 Ruling Case Law, 76, Section 30.

In the instant case it does not appear that the public was excluded from the court room; but every person who desired to enter the court house and pass the cordon of soldiers was required to have a pass signed by either the judge or the Brigadier General in command of the militia, or both. It does not appear that anyone was excluded who, after search and inquiry, was found to be a person of law abiding intentions. We think the right to a public trial was not denied the defendant in this case. ■

Many other questions have been made, including many on the admission and rejection of evidence. It is hardly within the realm of possibility that a case of this character and length could be tried without some error being committed, and we do not say that every ruling of the trial court on the admission and rejection of evidence was free from error, but having in mind the liberality and freedom from technicalities which now characterize the administration of criminal justice under the new code, and especially the language of Section 13449-5, General Code, which requires that a judgment of conviction shall not be reversed for error on the admission and rejection of evidence unless it shall affirmatively appear from the record that the accused was or may have been prejudiced thereby, we cannot say that any prejudicial error resulted from the rulings of the court on the admission and rejection of evidence. State v. Moon, 124 Ohio St., 465, 179 N. E., 350.

The evidence against the defendant is overwhelming and convincing and warranted the conclusion reached by the jury in its verdict.

As we find no reversible error apparent upon the face of the record, the judgment will be affirmed.

Judgment affirmed.

Klinger andj Guernsey, JJ., concur.

Williams, J., of the Sixth Appellate District, sitting by designation in the Third Appellate District.  