
    BATTENHEISER v CINCINNATI (city)
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3949.
    Decided Dec 7, 1931
    Harry H. Shafer, Cincinnati, for plaintiff in error.
    John D. Ellis and Francis Batlett, Cincinnati, for defendant in error.
   CUSHING, J.

The only argument advanced by counsel for plaintiff in error as ground for reversal, as stated in his brief, is that the oourt erred in permitting witnesses to step from the witness stand to the bench and state in tones which could not be heard statements unknown to plaintiff in error or his counsel. If this were established it would be ground for reversal. Everything done in the court should be in the open and appear in the record.

The record in this case shows that a stenographer was present, a bill of exceptions was prepared, and statements were interlined which were not taken by the stenographer, but were later scratched out. The record fails to sustain counsel’s claim that the witnesses spoke to the court, and fails to disclose what was said to the court which could not be heard by the parties or counsel. Therefore, plaintiff in error’s claim can not be maintained.

The judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court must be affirmed.

HAMILTON, J, concurs in the judgment of affirmance.

ROSS, J,

concurring:

I concur in the judgemnt of affirmance for the reason that the record clearly shows that the defendant was convicted by evidence showing his guilt beyond any reasonable doubt, and that while the act of the court in listening to whispered conversations of a witness on the stand was error, it was not such as to require a reversal under the provisions of §13449-5, GC.  