
    Walker v. The State of Ohio.
    (Decided October 2, 1930.)
    
      Mr. Robert I. Asar and Mr. O. L. Dally, for plaintiff in error.
    
      Mr. D. D. I sham, prosecuting attorney, and Mr. Geo. R. Hargreaves, for defendant in error.
   Washburn, J.

The plaintiff in error, Bert Walker, was tried upon an indictment charging him with unlawfully, purposely, and wilfully killing a policeman while the policeman was in the discharge of his duties, and upon trial was found guilty of murder in the first degree, without a recommendation of mercy.

In this court it is urged, on his behalf, that various errors were committed in the trial of the case in the common pleas court and that the verdict of the jury is manifestly against the weight of the evidence.

It is not necessary to set forth or discuss the various claimed errors. We have examined them all with great care and find but one error in the record that is worthy of notice.

There is no dispute in the evidence, including that of the defendant himself, as to any of the essential facts constituting the crime except on the point whether the defendant fired the shot that hilled the officer. The defendant was an escaped convict, having 24 years yet to serve, and at about 1 o’clock a. m. was driving an automobile which came into collision with another automobile at a point where the officer who was killed was on duty with three other policemen, who had just completed a search of premises in that vicinity.

When the collision occurred, the officer who was killed, who was known by the defendant to be an officer, and who was in uniform, placed the defendant under arrest, and after taking him from the machine started to take him to the police car, which was standing near by. When they were near the police car, and while the defendant was struggling with the officer, the officer was shot and killed, and the defendant escaped after firing shots at the other policemen who were present and after being shot at himself. A few hours after this occurrence he was arrested at the place where he was living, and was found to have been hit by two of the shots fired by the policemen.

- As has been said, none of these facts is denied by the defendant except that he said he did not have a revolver and did not fire any shots.

Soon after he was arrested he was taken by the officers to the hospital, where the policeman who had been shot was being cared for, and while the defendant and the chief of detectives and others were in the presence of ¡the policeman who had been shot, the chief asked the injured policeman if this was the man (referring to the defendant) who shot him. At the trial a witness for the state, over the objection of counsel for defendant, was permitted to testify concerning this transaction and to say that when that question was asked of the policeman he made a movement of his head indicating yes, but said nothing, and that the defendant made no reply whatever.

The accusation was not addressed to the defendant ; no question was asked of him, and nothing whatever was said to him, and no opportunity was given to him to say anything.

"We find that the admission of this testimony was error. The defendant was under arrest and the circumstances and surroundings were not such as naturally or reasonably call for some action or reply on the part of one in his situation; the better rule being that ordinarily one who is under arrest, and so circumstanced that he is not free to act voluntarily, cannot legally be regarded as called upon to reply to the statements, in his presence, of one person to another touching his alleged guilt, and therefore his silence is not evidence of an admission of the crime charged, or even a circumstance of conduct on his part that the jury is entitled to consider in determining his guilt or innocence. Geiger v. State, 70 Ohio St., 400, 71 N. E., 721.

Under the circumstances shown by the record in this case, such error was clearly not prejudicial, and the defendant was not deprived of any substantial right. In the first place, the trial judge told the jury that said evidence should be considered with care and caution, and with proper consideration of all of the circumstances and conditions then existing and surrounding the defendant, and that if it did not appear that the defendant heard the question and observed the movement, if any, in reply thereto, the evidence should not be considered for any purpose. In the second place, when the shot that killed the policeman was fired there were three other policemen who were within a few feet of the defendant, and two of them testified to having seen the defendant fire the shot, and they all testified that immediately after the shot was fired the defendant ran a few feet to a position behind the automobile and fired several shots at the other policemen who were on the other side of the automobile, and that the policemen fired three shots at the defendant, two of which took effect.

There was no one else in the vicinity who did any shooting, and it seems to us that there is no possibility of the officers being mistaken. The evidence establishes the guilt of the defendant not only beyond a reasonable doubt, but beyond the possibility of a doubt. Under such circumstances the testimony that was erroneously admitted, to the effect that the defendant said nothing when he was in the presence of the injured policeman, could not have had any influence upon the jury; it was merely cumulative evidence, and evidence of very questionable probative value, and we are clearly of the opinion that it did not affect the verdict in this case.

As has been said, the other claims of error have been carefully considered, and what we have said indicates our conclusion upon the question of the weight of the evidence.

In onr judgment the defendant had a fair trial, free from any prejudicial error, and we fully concur in the finding by the jury that the defendant was guilty and that he was not entitled to a recommendation of mercy.

Judgment affirmed.

Funk, P. J., and Pardee, J., concur.  