
    Stevens et al. v. The State of Ohio.
    
      Criminal law — Defendant escapes while error proceedings pending — Court may hear or dismiss proceedings — Or fix surrender date as condition precedent to maintenance of proceeding — Court may overrule motion to dismiss error proceeding upon prisoner’s return — Evidence—Testimony of accomplice corroborated by defendant’s unexplained statements when arrested — Mistreatment of defendant to extort confession inadmissible, when — Evidence of other attempted robberies admissible to show conspiracy to rob, when — Prejudicial error to exclude evidence impeaching accomplice’s testimony — Conversation between prosecuting attorney and accomplice seeking immunity as state’s witness — Charge to jury erroneous — Alibi need not establish impossibility for defendant to commit ¡crime — Proof of alibi sufficient if reasonable doubt of guilt created.
    
    1. Where prisoner escapes, Court of Appeals may in its discretion hear proceedings in error brought by prisoner notwithstanding his escape, may dismiss proceedings outright, or may fix day within which fugitive shall surrender as condition precedent to maintenance of proceeding.
    2. Where prisoner, who escaped from jail, returned to sheriff’s custody prior to disposition of motion to dismiss proceedings in error, Court of Appeals, in exercise of its discretion, may overrule motion to dismiss.
    3. In prosecution for robbery, evidence of unexplained statements by defendant at time he was taken into custody, indicating his knowledge of crime, held sufficient corroboration of testimony of accomplice to sustain conviction.
    4. In prosecution for robbery, evidence of mistreatment by officers of defendant in effort to extort confession was properly excluded, where officers accused of mistreating defendant did not testify, evidence being competent only as reflecting on testimony of parties guilty of mistreatment.
    5. In prosecution for robbery, based on testimony of accomplice that defendants and accomplice were in general conspiracy to commit’ robbery on particular night, state had right to show everything done pursuant to such conspiracy, and hence evidence of attempt to rob other cars on same night, subsequent to robbery of prosecuting witness, was properly admitted.
    6. In prosecution for robbery, based mainly on testimony of accomplice, defendant had right to bring to attention of jury every fact and circumstance that might tend to break down testimony of accomplice, and exclusion of testimony of conversation between accomplice and prosecuting attorney, impeaching accomplice by showing accomplice’s purpose in testifying was to receive immunity from state, was prejudicial error.
    7. In prosecution for robbery, charge that proof of alibi should cover whole time of transaction in question, or so much thereof as would render it impossible for defendant to have committed act complained of, was not mere definition of term “alibi,” and was reversible error, since proof of alibi is satisfactory, if it only creates in jury reasonable doubt of guilt.
    (Decided July 20, 1927.)
    Error: Court of Appeals for Lawrence county.
    
      Mr. A. R. Johnson and Messrs. Irish <& Riley, for plaintiffs in error.
    
      
      Mr. James P. Collier, prosecuting attorney, for defendant in error.
   Mauck, J.

An indictment was returned by the grand jury of Lawrence county, charging that Charles Stevens, Bruce Davis, and Gerald Griffin, on July 8, 1926, robbed one Charles Long of certain personal property. To this indictment Stevens and Griffin entered a plea of not guilty and were put upon their joint trial. They were found guilty, and judgment entered upon the verdict. Bach of them now seeks a reversal of that judgment.

Upon application to this court the sentences were suspended, Griffin giving the bond required, and Stevens, in default of bond, remaining in the county jail. The case was thereupon submitted to this court upon brief and oral argument. While the record was under consideration and before a conclusion was reached, the prosecuting attorney filed a motion to dismiss the proceeding in error so far as the plaintiff in error Stevens was concerned, for the reason that Stevens had broken jail and was a fugitive from justice. Upon the hearing of this motion the court found that Stevens had broken jail, but on learning that the motion to dismiss the petition in error had been filed, had surrendered to the sheriff, and was at the time of the hearing of the motion in the custody of the sheriff. This court thereupon vacated the order suspending the execution of the sentence of Stevens, thus permitting the sheriff to commit Stevens to the penitentiary pending the final disposition of the motion.

The effect of the escape of a prisoner upon his right to maintain a proceeding in error does not appear to have been considered by the courts of this state. In some jurisdictions the escape is held to have no effect. In most states the better rule prevails that a reviewing court will not entertain a petition in error where the complaining party has unlawfully taken himself from the custody of the court; that the court will not act where the plaintiff in error is a fugitive and cannot be compelled to respond to any judgment the court may render. In some cases the petition in error stands dismissed, unless the fugitive submits to the custody of the court within a day fixed. In other instances it is held that the unlawful breaking of jail constitutes a forfeiture of the right to review. Our conclusion is that it is within the court’s discretion to adopt any of three courses: (1) To hear the case notwithstanding the escape of the prisoner; (2) to dismiss the proceeding outright; (3) to fix a day within which the fugitive shall surrender as a condition precedent to the maintenance of the proceeding. 2 Ruling Case Law;, 63; note in 26 L. R. A., (N. S.), 921. In the instant case, Stevens having returned to the sheriff’s custody prior to the disposition of the motion to dismiss, the court, in the exercise of its discretion, overrules the motion to dismiss.

We accordingly proceed to a review of the judgment complained of, in behalf of both the plaintiffs in error. The verdict largely depended upon the testimony of Bruce Davis, jointly indicted with Stevens and Griffin. Without the testimony of Davis there would have been nothing to take the case to the jury. Davis was, or at least had been, a criminal. He testifies to his guilt of the offense charged and to another robbery or two the same night. He had served a term in the Ohio penitentiary for forgery, and another in the penitentiary at Leavenworth for robbery. Davis’ testimony was to the effect that he, Stevens, Griffin, and one Albert Stevens held np and forcibly took from the person of Long a watch and a small sum of money. Long and a companion testified to the robbery, and showed that they at once notified the police officers at Ironton. These officers then repaired to the scene of the robbery in a closed car, and parked the car in a place that would invite a new assault by the robbers. Some one then attempted to hold up the police car, the occupants of which fired upon the robbers, killing Albert Stevens. Neither Long nor the police officers identified the bandits. Davis’ testimony alone directly implicates Charles Stevens, Griffin, and himself.

Practically the only corroboration of Davis’ story, so far as Griffin was concerned, is found in what Griffin said and did on the two occasions when he was taken into custody. He was arrested at his home early on the morning succeeding the robbery. The officers testified that he was excited and nervous, that he said upon being arrested that he knew why he was arrested, and when asked why he was arrested he said that it was for the shooting “over there,” inquiring whether or not Albert Stevens had not been killed “out there” last night. The officers further testified that at the same time Griffin asked them whether or not “these fellows” were trying to ring him in on this, or were trying to frame him, and added that he could do as much talking as anybody. He further said to them that he would talk with one of the officers, but not with two of them. He then added that he would wait and talk to an attorney, and, when asked if he would talk to the prosecuting attorney, he said that he would. Some months later, when arrested the second time in connection with this offense, one of the officers says that Griffin told him that he appreciated the treatment that the officers had accorded him, and that he wished he had taken the officer’s advice; that the officer had told him that some of the boys “would do this,” presumably referring to a confession that Davis seems to have made.

All of this language on the part of Griffin operates to some extent against his claim of innocence. It might seem to show that he knew much more about the case than he ought to have known. The only explanation given by him of the statements attributed to him when first arrested is that he did talk to the prosecuting attorney, and told that officer that he was not guilty. He neither denies nor explains what was meant by his use of the language to the effect that he could do as much talking as any one. Nor does he explain why he was willing to talk with one officer, and not with two, nor why he immediately changed his mind, and would talk with neither, if the only thing he contemplated talking about was his innocence. Similarly he does not deny or explain the conversation attributed to him upon his second arrest. He says that he meant to express his appreciation of the officer’s kindness, but he does not explain what he meant in his expression of regret that he had not taken the advice of the officer, when the officer had theretofore told him that some of the boys “would do this.” Without detailing the circumstances that involved the plaintiff in error Stevens, it is sufficient to say that there is stronger corroboration of Davis’ testimony as to that defendant than there is as to Griffin.

Upon this record a number of assignments of error are made, the most important of which we will now consider.

1. It is claimed that the judgment is against the weight of the evidence. It is not necessary for us to determine whether or not a judgment based solely upon the testimony of an accomplice might be sustained. It might well be that the repentance of such an accomplice was so manifest, his reformation so complete, and his demeanor on the stand so convincing, that a jury would be warranted in accepting his testimony as establishing the state’s claim beyond a reasonable doubt. While we cannot say affirmatively that any such showing as this was made by Davis, we do find that there was such corroboration of his testimony that, if the jury believed the same, we could not say the jury was clearly wrong in so doing. The verdict cannot be disturbed for the reason suggested.

2. The defendant Stevens complains because the court refused to allow him to show that the officers had assaulted and beaten him after arrest in an effort to extort a confession. In this the trial court was clearly right. Whether or not Stevens was assaulted by the officers had nothing to do with his guilt or innocence. However cowardly and reprehensible it may be for officers to mistreat a prisoner in their charge, such mistreatment gives to the prisoner no absolution for a crime previously committed by him. Such facts as Stevens sought to bring out in this case would be competent only so far as they reflected upon the testimony of the parties charged with mistreating him. The testimony was not offered for that purpose as the officers sought to be accused were not on the witness stand. There was consequently no error in excluding the testimony referred to.

3. Complaint is made that the state was permitted to show, not only the robbery of Long, for which the defendants are on trial, but the subsequent attempt to rob the police car, and another car that was in about the same location at about the same time. There can be no disagreement on the proposition that one cannot be found guilty of one specific offense by showing that he has been guilty of another like offense. This general rule, however, does not deprive the state of its right to make its whole case, even though incidentally it may show that the accused has been guilty of other offenses. Shelton v. State, 106 Ohio St., 243, 140 N. E., 153; Holt v. State, 107 Ohio St., 307, 140 N. E., 349; Patterson v. State, 96 Ohio St., 90, 117 N. E., 169, L. R. A., 1918A, 583. In this case the state was relying upon Davis’ testimony to the effect that he, the two defendants, and Albert Stevens, were in a general conspiracy to commit robbery on the night in question. The state had a right to show everything that was done pursuant to that conspiracy, and if, incidentally, another and distinct crime was thereby developed, that fact did not deprive the state of its right to bring out the facts. As Judge Jones said in the Patterson case, supra, at page 97 (117 N. E., 171):

“This rule of competency is also applicable when such other offenses are the result of a common scheme or plan embracing the commission of two or more crimes, including the crime charged, and which are so related to each other that proof of one tends to establish the others.”

There was consequently no error in admitting the testimony relating to the other offenses committed on the night in question.

4. It is vigorously urged that the trial court erred in its instruction, and failure to instruct, relative to the testimony of the witness Davis, and emphasis is laid upon what was said in Allen v. State, 10 Ohio St., 287, and subsequent cases in regard to the testimony of an accomplice. The last and clearest expression of the Supreme Court of this state upon this question is found in State v. Reichert, 111 Ohio St., 698, 146 N. E., 386, where the court lays down the doctrine that, if the record discloses that the testimony of the accomplice has been corroborated by other evidence, the trial judge in the exercise of a sound discretion may refuse to instruct the jury not to convict upon the uncorroborated testimony of an accomplice. As we have heretofore pointed out, there was in this case corroboration of the testimony of Davis, and the trial judge cannot be held to have abused his discretion in refusing to instruct the jury as requested.

5. While we have heretofore pointed out that there are some incriminating circumstances in the case in addition to the testimony of Davis, the case is not a strong one, as we view it, on the part of the state. If Davis ’ testimony had been disregarded by the jury for any reason, an acquittal must have resulted. It was consequently the right of the defendants to bring to the attention of the jury every fact and circumstance that might tend to break down the testimony of Davis. Davis was admittedly guilty of the offense with which the defendants were charged. He had three associates in that crime. One of them was dead. He claimed that Charles Stevens and Griffin were the other two. He was more or less experienced in criminal procedure, and in the methods which officers are compelled to employ in their war with crime. What was the inducement that led Davis to turn state’s evidence? Was he inspired by a sincere desire to do the right thing, because it was right, or was he seeking to get immunity himself by bringing in two other parties? If he were so seeking to buy his own liberty at the expense of the liberty of others, was he protecting guilty associates by attempting to fasten the offense upon two innocent men, or was he in fact honestly assisting the state in pinning the crime to his guilty associates?

Davis claimed that he had been promised nothing by any of the officers representing the state. This put him in the position of testifying for the state, notwithstanding such testimony might result in his own incarceration, and tended to make him appear entitled to greater credence than he would have been entitled to if the consideration for his testimony was to be his freedom from prosecution. He was asked if he had not made some inquiry of the prosecuting attorney, presumably about his own case, while the instant case was being tried, and if the prosecuting attorney had not assured him that he need not worry. He replied to this that he did not remember. The defendants proposed to impeach Davis in this respect, by offering testimony to the effect that there had been such conversation, and the court refused it. This refusal was error, and, while in some other case such error would be inconsequential, it was, under the peculiar circumstances of this case, prejudicial to the defendants.

6. With the exception now to be noticed, the charge to the jury admirably defines the issues in this case and correctly applies the law thereto. The charge was too long. The Supreme Court said in State v. Norman, 103 Ohio St., 541, 544, 134 N. E., 474, 475: “The briefer the better, so long as the essential elements are simply stated.”

In that case the Supreme Court criticizes a charge where more than a page is consumed covering the subject of a reasonable doubt. In this case more than two pages are so consumed. The verdict would, of course, not be disturbed on account of the length of the charge, although it is a serious handicap to give to the jury instructions of such length that it is questionable whether the salient points can be carried in mind. We feel warranted in this criticism in this case, because the error hereafter referred to would not have been present, if the trial judge had not gone to unnecessary length in discussing a question that really required no instruction at all.

Upon the question of alibi the court properly said:

“Now I say to you that defendants are not required to prove the defense of an alibi beyond a reasonable doubt, nor are they required to prove it by a preponderance of the evidence; but, if the evidence offered in support of an alibi creates in your mind a reasonable doubt as to the presence of the defendants at the time and place of the robbery, of course they are entitled to the benefit of that doubt, and your verdict should in that event be not guilty; but if, after considering all the testimony offered in the case, including that offered in support of the alibi, you are convinced beyond a reasonable doubt that the defendants are guilty, then it would be your duty to return a verdict of guilty.”

While this instruction might have been improved by omitting the language which goes to show what the defendants were not required to prove, it states correctly the law in relation to an alibi, and there was no occasion to utter another word upon the subject. The court, however, unfortunately accompanied this, instruction, or preceded it, with this language:

“Now, an alibi is a legitimate and proper defense to make, and, if satisfactorily made, is conclusive. It is essential, however, to the satisfactory proof of an alibi, that it should cover the whole of the time of the transaction in question, or so much thereof as would render it impossible that the defendants, or either of them, could have committed the act alleged to have been committed in this case.”

This was wrong. The law upon this question prevailing in the different states of -the Union has been quoted in the note in 41 L. R. A., 530, and annotation in 29 A. L. R., 1127. In some states the burden of establishing an alibi is said to be upon the defendant. In such cases the testimony in support of an alibi is treated as an affirmative defense. In this state it has long been settled that an alibi is not an affirmative defense. Walters v. State, 39 Ohio St., 215 ; State v. Norman, supra. Some of the authorities referred to in other jurisdictions have sustained instructions of this same general character, but the better considered opinions in all those states where an alibi is not looked upon as an affirmative defense refuse to sanction the instruction now under review.

Nor can this language be overlooked upon the theory that it is a mere definition of the term-“alibi.” It is neither a definition nor description of the term. It describes the conditions under which it might be said that a complete vindication of the accused is had by showing the impossibility of his guilt. One accused of a felony, however, may properly contend for something less than a demonstration of his innocence, and for the purposes of his trial the alibi is satisfactory, not only when it covers the whole of the time involved, or so much thereof as would render it impossible for him to have been guilty, but when it only creates in the jury a reasonable doubt of guilt. However accurately the jury may have been instructed at another time, we cannot say that they were uninfluenced by this part of the charge. This is substantially the charge denounced in State v. Norman, at page 543 (134 N. E., 474). We cannot say that the jury was guided by the correct instruction, and that it wholly ignored the erroneous charge.

For the errors indicated, the judgment is reversed, and the case remanded to the common pleas court, for a new trial.

Judgment reversed and cause remanded.

Middleton and Allread, the latter of the Second Appellate District, JJ.,, concur.  