
    The State of Ohio, Appellee, v. Sheppard, Appellant.
    (No. 34615
    Decided May 31, 1956.)
    
      
      Mr. Frank T. Cullitan, prosecuting attorney, Mr. Saul S. Danaceau, Mr. Thomas J. Parrino and Mrs. Gertrude Bauer Mahon, for appellee.
    
      Messrs. Herbert, Tuttle, Applegate & Britt, Mr. Gordon K. Bolon, Mr. Joseph S. Deutschle, Jr., Mr. William J. Corrigan, Mr. Arthur E. Petersilge and Mr. Fred W. Garmone, for appellant.
   Bell, J.

Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. Special seating facilities for reporters and columnists representing local papers and all major news services were installed in the courtroom. Special rooms in the Criminal Courts Building were equipped for broadcasters and telecasters. In this atmosphere of a “Roman holiday” for the news media, Sam Sheppard stood trial for his life.

The record of that trial covers 7,308 pages. And counsel devote 1,097 pages of briefs to a discussion of 29 alleged errors assigned by the defendant as having been committed by the Court of Appeals in affirming the judgment of the Court of Common Pleas. These 29 errors were combined into seven questions of law, only three of which were stressed in oral argument. They are:

1. Was the atmosphere in Cleveland as a result of the widespread publicity attendant upon this trial such as to require the trial court to grant a change of venue?

2. Did the permitting of jurors during their deliberations to communicate by telephone with members of their immediate families require reversal of the judgment on the verdict reached by the jury?

3. Is there sufficient evidence to have warranted submission of the case to the jury, and, if so, is there sufficient substantial evidence to justify the verdict rendered?

The law does not require this court to be so naive as to refuse to recognize the great amount of publicity accorded this case from the time of the discovery of the crime up to the present time. Every development has been given the “full treatment” by the press, radio and television. The interest in each phase of the case has not been confined to the Cleveland area or to Ohio. Syndicated columns and news agency reports have made the case almost as well known in every community of the nation as it is in Cleveland.

It should be borne in mind, however, that the legal question presented to us is whether the defendant was accorded a fair constitutional trial by an impartial jury which could decide the issues of fact solely upon the consideration of the evidence in the light of the law given it by the court. That question is not to be decided on the volume of the publicity or the tendency such publicity may have had in influencing the public mind generally as to the defendant’s guilt or innocence.

At the outset of the trial, in response to defendant’s motion for change of venue, the trial court said:

“The motion for change of venue will be held in abeyance, and we will proceed at 1:15 this afternoon in an effort to determine whether or not we can secure a fair and impartial jury. If we are not able to do that, there will be no question in this court’s mind at all but what this case ought to go out of Cuyahoga County, whatever may be the effect of that.”

At the conclusion of the impaneling of 12 jurors, the motion for change of venue was renewed (for the third time), at which time, in overruling the motion, the trial court said: “That the best evidence in the world is the effort to select a jury, and what we get here in a picture that has taken almost two weeks of time. The court is thoroughly satisfied that we have here a fair and impartial group of people to try this case, and I doubt if under any conditions at any time anywhere in this state you could have a better looking group of people and a more intelligent group of people, as a whole, to try a case of this kind, and the court is thoroughly satisfied that they are a group of fair and impartial people who can properly try this case under the guidance of the court, and I hope we will be able to give them that in the manner that it ought to be given.”

The same motion, advanced for the same reason, was renewed on five other occasions during the trial, and the trial court in each instance overruled the motion.

We believe the trial court was justified in those rulings. In Townsend v. State, 17 C. C. (N. S.), 380, 25 C. D., 408, affirmed without written opinion in 88 Ohio St., 584, 106 N. E., 1083, it is said:

“The examination of jurors on their voir dire affords the best test as to whether or not prejudice exists in the. community against the defendant; and where it appears that the opinions as to the guilt of the defendant of those called for examination for jurors are based on newspaper articles and that the opinions so formed are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue.”

For example, in Richards v. State, 43 Ohio App., 212, 183 N. E., 36, it was held that the exercise of the right to order a change of venue lies in the trial court’s discretion, and that a refusal to order a change of venue without prejudice until it can be determined whether a fair and impartial jury can be impaneled is not an abuse of discretion. See, also, Dorger v. State, 40 Ohio App., 415, 179 N. E., 143; State v. Stemen, 90 Ohio App., 309, 106 N. E. (2d), 662; State v. Deem, 154 Ohio St., 576, 97 N. E. (2d), 13.

If the jury system is to remain a part of our system of jurisprudence, the courts and litigants must have faith in the inherent honesty of our citizens in performing their duty as jurors courageously and without fear or favor. Of the 75 prospective jurors called pursuant to this venire only 14 were excused because they had formed a firm opinion as to the guilt or innocence of the defendant. A full panel was accepted before this venire was exhausted, and defendant exercised but five of his allotted six peremptory challenges.

In the light of these facts, and particularly in the light of the fact that a jury was impaneled and sworn to try this ease fairly and impartially on the evidence and the law, this court can not say that the denial of a change of venue by the trial judge constituted an abuse of discretion.

Defendant contends that he was prejudiced in this case by the actions of two officers of the court, in whose charge the jury was committed during its deliberations, in permitting some members of the jury to make unmonitored telephone calls in violation of Section 2945.33, Revised Code, which reads as follows :

“When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. The court may permit the jurors to separate during the adjournment of court overnight, under proper cautions, or under supervision of an officer. Such officer shall not permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. * * * ’ ’

It is conceded that no authorization for such telephone calls was given by the court.

At the conclusion of each day’s deliberation, the members of this jury were housed in the Carter Hotel, under the supervision of two court bailiffs. The record reveals that the telephones in the hotel rooms occupied by individual jurors had been “cut out.” However, some of them were permitted to make calls on the telephone in the room of one of the bailiffs.

In connection with a motion for a new trial, the record discloses the following cross-examination of one of the bailiffs by counsel for defendant:

‘ ‘ Q. Did you make the calls, or did the jury make the calls ? A. No. The jury made the calls, and I sat in the chair right alongside the telephone. ’ ’

On redirect examination, the testimony was as follows:

“Q. Mr. Bailiff, what was the purpose of the calls that the jurors made in your presence?

( 6 # * #

“A. Well, they were made to their husbands and wives, and those that had children, they talked to the children.

“Q. Was there any conversation whatsoever about this case or their deliberations? A. Not one word, Mr. Parrino.”

Counsel for defendant rely upon State v. Adams, 141 Ohio St., 423, 48 N. E. (2d), 861, 146 A. L. R., 509, as authority for their contention that the action of the bailiff in permitting these telephone calls constituted error prejudicial to the defendant. They cite the third paragraph of the syllabus of that case, which reads:

‘ ‘ The violation by a court officer in charge of a jury of Section 13448-1, General Code [Section 2945.33, Revised Code], to the effect that he shall not communicate with a jury in his charge or custody except to inquire whether it has reached a verdict, will be presumed to be prejudicial to a defendant against whom, after such communication, a verdict is returned by such jury.”

A mere reading of the following fourth paragraph of the syllabus of the Adams case should be sufficient to distinguish that case from the present one:

“Where a court bailiff, on being informed by the jury during its deliberations that it could not agree, stated to it: ‘You can’t do that. You must reach a decision if you have to stay here for three months,’ there is a violation of the statute which is prejudicial to a defendant against whom, following such declaration, a verdict is returned by the jury.”

The case of Emmert v. State, 127 Ohio St., 235, 187 N. E., 862, 90 A. L. R., 242, although not cited by defendant, might also be authority for the proposition that misconduct of a bailiff is ground for reversal. That case, however, is also readily distinguishable from the present one. In the Emmert case the officer in charge of the jury, at a time when it was not actually in its deliberative sessions, said to certain members of the jury: “My God, you are all wet. Judge Stahl expects you to return a verdict of guilty and if you don’t it will be just too bad.” Other remarks of a similar nature to the effect that the jury had to reach a verdict were made by the bailiff.

In situations such as those in the Adams and Emmert cases, it is easy to presume prejudice to the defendant as a result of the conduct of the bailiff. Can the same be said of the conduct of the bailiffs here in permitting jurors, who for several days and nights had been sequestered and unable to see or hear from their husbands, wives or children, to telephone those members of their families? We do not think so. There is, on the contrary, every reason to believe that assurances of the health and welfare of their loved ones would tend to ease the jurors’ minds as to personal matters and would make them better, more conscientious jurors. Time after time, the members of this jury were instructed by the court not to communicate with anyone concerning this case or permit anyone to communicate with them about it. We must assume they followed the court’s instructions. No complaint is made that they disregarded these instructions every night for some seven weeks that they were allowed to go home at the close of each day’s session of the trial. It is difficult to visualize a juror who will follow a court’s instruction during the many hours he spends each evening and week end with his family and then deliberately disregard that instruction in a few brief moments he speaks to a member of his family on the telephone in the presence of a bailiff.

The law of Ohio is that no judgment of conviction shall be reversed in any court for any cause unless it appears affirmatively from the record that the defendant was prejudiced thereby or was prevented from having a fair trial. Section 2945.83, Revised Code. There is no such affirmative showing of prejudice here, and this court will not presume a prejudice as a matter of law from the fact that some of the jurors made telephone calls to members of their immediate families.

The answer to the third question propounded herein has required a review of the evidence presented in the trial of the ease. That review has been made with no attempt to retry the issues of fact. Our concern has been solely whether there is sufficient evidence to have warranted the submission of the case to the jury and whether there is sufficient substantial evidence to support the verdict rendered. In our opinion the record in this case requires that both questions be answered in the affirmative.

Whether the members of this court would have drawn the same inferences from the evidence presented in this trial is of no consequence. As this court said, in State v. Petro, 148 Ohio St., 473, 501, 76 N. E. (2d), 355, 5 A. L. R. (2d), 425:

“It is the minds of the jurors and not the minds of the judges of an appellate court that are to be convinced. The jurors see the witnesses and observe their demeanor. The credibility to be given to each and all of these witnesses and to part or all of their respective testimony is for the jury. The question to be determined by an appellate court is: Does the record contain evidence from which a jury would be justified in concluding that the accused was guilty beyond a reasonable doubt?”

The evidence in this case is largely circumstantial. In such a situation, it is conceded that the law of Ohio requires that the facts upon which a verdict of guilt is based must be established beyond a reasonable doubt. The facts so established must be entirely irreconcilable with any claim or theory of innocence and admit of no other hypotheses than the guilt of the accused. See Carter v. State, 4 Ohio App., 193; 15 Ohio Jurisprudence (2d), 630, Section 462.

The law was so stated to the jury by the trial judge, when he said in his general charge:

“It is for you to determine how much of circumstantial evidence adduced in this case is credible and what fair inferences are to be drawn from it. You are instructed that any inference drawn must in every instance be drawn from a proven or established fact. In other words, you are not to draw a second or further inference upon an inference but that is not to say that you are confined to drawing only one inference from one fact. There is no limit to the number of independent inferences that may be drawn from a fact. The rule is simply that every inference must be drawn from, and based on, a fact and that once having drawn an inference one may not draw a second inference from the first.

“It is necessary that you keep in mind, and you are so instructed, that where circumstantial evidence is adduced it, together with all other evidence, must convince you on the issue involved beyond a reasonable doubt and that where circumstantial evidence alone is relied upon in the proof of any element essential to a finding of guilt such evidence, together with any and all other evidence in the case, and with all the facts and circumstances of the case as found by you must be such as to convince you beyond a reasonable doubt and be consistent only with the theory of guilt and inconsistent with any theory of innocence. If evidence is equally consistent with the theory of innocence as it is with the theory of guilt it is to be resolved in favor of the theory of innocence.”

Under that instruction, which we believe to be a proper one on circumstantial evidence, where a jury finds there is any reasonable hypothesis of innocence, after considering all the evidence, it is its duty to acquit. If, however, the jury finds, after full deliberation, there is no reasonable hypothesis of innocence based on the facts as it finds them to be, and the facts which it finds are irreconcilable with any reasonable hypothesis other than guilt of the accused, then a verdict of guilty is required.

The facts were presented to 12 qualified jurors sworn to well and truly try the issues between the state of Ohio and Sam H. Sheppard. In what was obviously a careful, complete and correct charge, Judge Blythin instructed that jury as to the law applicable to those facts. In such a situation, the following words of Mr. Justice Holmes, in Aikens v. State of Wisconsin, 195 U. S., 194, 206, 49 L. Ed., 154, 25 S. Ct., 3, are appropriate :

“But it must be assumed that the constitutional tribunal does its duty and finds facts only because they are proved.”

We have carefully examined the other errors assigned and find none, either in the admission or rejection of evidence or in the instructions of the court, prejudicial to the defendant.

The judgment of the Court of Appeals is, therefore, affirmed.

Judgment affirmed.

Matthias, acting C. J., Montgomery, Zimmerman and Stewart, JJ., concur.

Hart and Taet, JJ., dissent.

Matthias, J., sitting, in the place and stead of Weygandt, C. J., pursuant to Section 2503.04, Revised Code.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the place and stead of Matthias, J., pursuant to Section 2, Article IV of the Constitution.

Taft, J.,

dissenting. It has been suggested that there are too many assignments of error in the instant case and too many pages of briefs devoted to their discussion. Probably, if only a few errors had been assigned, it would have been stressed that the trial lasted for nine weeks and the record thereof covers over 7,000 pages; and that perfection and freedom from some error in such an extensive trial would be asking for the impossible. It should be remembered that the defendant was not entirely responsible for the length of this trial or the size of the record. His first opportunity to present evidence in his defense came after 5,000 pages of the record and six weeks of trial. It might be reasonable, in a case involving a trial of this length, to determine that there probably was no ground for reversal if there were only a few errors; and it is therefore not unreasonable for defendant to endeavor to demonstrate that there were not just a few but a very substantial number of errors.

The majority opinion points out that the 29 assignments of error were combined into seven questions of law and that only three of those were stressed in oral argument. Apparently for this reason, the majority opinion discusses only those three. However, both the brief of the defendant on the merits, which endeavored to combine the 29 assignments of error into seven questions, and also defendant’s counsel in oral argument plainly stated that defendant was relying on each of his 29 assignments of error; and the briefs supporting the motion for leave to appeal and opposing the motion to dismiss, which discuss.all those assignments of error, were refiled as briefs on the merits. It is perfectly obvious that defendant, in the limited time allotted by this court for argument, could give emphasis only to a limited number of the numerous questions of law raised by his assignments of error. In my opinion, the mere fact, that such limitation of time prevented defendant’s counsel from discussing some of those questions of law in argument before this court, does not excuse this court from its obligation to give them serious consideration. As indicated by Section 2505.21, Revised Code, it is only assigned “errors not argued by brief” that “may be disregarded” by this court.

It has also been suggested that defendant’s counsel for the most part argued the weight of the evidence and not questions of law. There were, as there usually would be in any trial of this length, numerous errors of law. Whether such errors of law would justify a reversal would to a substantial extent necessarily depend upon the weight of the evidence supporting the ease against the defendant. As stated in the syllabus in Hallworth v. Republic Steel Corp., 153 Ohio St., 349, 91 N. E. (2d), 690:

“3. Generally, in order to find that substantial justice has been done to an appellant so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probably have made the same decision.

“4. In determining whether improperly admitted and potentially prejudicial evidence did prejudice the appellant or whether substantial justice has been done the appellant as contemplated by Section 11364, General Code, a reviewing court should not weigh the other evidence or determine the credibility and effect of conflicting evidence, unless the weight, credibility and effect of that evidence is substantially in favor of the appellee.”

If, as even the majority opinion recognizes, there were errors of law in the trial of this case, then in order to affirm the judgment of the Court of Appeals this court “is required to substitute its judgment, as to the result that would have been reached if no error had existed, for a verdict of the jury * * * which never was rendered.” Hallworth v. Republic Steel Corp., supra, 358. As indicated by the above-quoted paragraphs of the syllabus, this court should not do that even in a civil case “unless the weight, credibility and effect of that evidence is substantially in favor of the appellee.” It would appear therefore that it was quite proper and should have been very helpful to this court for defendant’s counsel to argue as they did and demonstrate by record references that “the weight, credibility and effect of” the “evidence” in the instant case was not “substantially in favor of the appellee,” but, on the contrary, that ' it was “substantially in favor of the” defendant-appellant.

Furthermore, as stated in paragraph one of the syllabus in Atkins v. State, 115 Ohio St., 542, 155 N. E., 189, with regard to a criminal case :

“Ordinarily this court will not consider the mere weight of evidence on review of the record of a trial below, yet, this case being one where the law requires a higher quality and a greater quantity of evidence than is required in ordinary cases where a verdict is supported by a preponderance of the proof, this court will look to the record to ascertain whether or not the rule has been disregarded.”

As stated in paragraph eleven of the syllabus in State v. Petro, 148 Ohio St., 473, 76 N. E. (2d), 355, 5 A. L. R. (2d), 425:

“In a criminal case where proof beyond a reasonable doubt is required, this court will look to the record to ascertain whether or not such rule has been disregarded. (Atkins v. State, 115 Ohio St., 542, approved and followed.)”

Also in Section 2945.04, Revised Code, it is said:

“A defendant in a criminal action is presumed to be innocent until he is proved guilty of the crime charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. This presumption of innocence places upon the state the burden of proving him guilty beyond reasonable doubt.

“Reasonable doubt is defined as follows: ‘It is not a mere possible doubt, because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.’

“In charging a jury the trial court shall state the meaning of presumption of innocence, and read said definition of reasonable doubt.”

Admittedly this is a case in which circumstantial evidence alone is relied upon to prove that defendant killed his wife.

In State v. Nevius, 147 Ohio St., 263, 71 N. E. (2d), 258, paragraph five of the syllabus reads:

“In a criminal prosecution the corpus delicti may be established by circumstantial evidence where the inference of the happening of the criminal act complained of is the only probable or natural explanation of the proven facts and circumstances.”

To the same effect, see State v. Martin, 164 Ohio St., 54, 59, 128 N. E. (2d), 7.

In State v. Urbaytis, 156 Ohio St., 271, 102 N. E. (2d), 248, paragraph three of the syllabus reads in part:

“ * * * circumstantial evidence * * * by itself will not warrant a conviction unless it excludes every reasonable hypothesis except that of guilt.”

I have grave difficulty in concluding that any reasonable man could either (1) fail to have a reasonable doubt as to whether defendant killed his wife, or (2) “after the entire comparison and consideration of all the evidence * * * feel an abiding conviction to a moral certainty” that defendant killed his wife, or (3) determine that the circumstantial evidence excludes every reasonable hypothesis except that defendant killed his wife, or (4) conclude that the only probable or natural explanation of the proved facts and circumstances is that defendant killed his wife.

However, it is perfectly apparent that, unless Section 2945.04, Revised Code, and the foregoing pronouncements of law by this court are ignored, no one can say, to use the words of this court in paragraph four of the syllabus in the civil case of Hallworth v. Republic Steel Corp., supra (153 Ohio St., 349), that “the weight, credibility and effect of * * * [the] evidence is substantially in favor of the appellee.”

Certainly, the jury quite clearly indicated that it did not consider the evidence to be “substantially in favor of the” state. Thus, notwithstanding that until their verdict was returned the jurors were under the supervision of two court bailiffs and at night were sequestered in a hotel away from their families, their deliberations extended from the morning of Friday, December 17, until late on Tuesday, December 21, and included sessions throughout those and the intervening days, including Sunday, and sessions on Friday, Saturday and Monday nights. Also, notwithstanding the strong indications that the killing of defendant’s wife amounted to first degree murder, the verdict against defendant was only a verdict of second degree murder.

No effort has been made to state a set of facts and circumstances that the jury could have found from the evidence and that would not only support an inference of defendant’s guilt but also exclude any reasonable hypothesis except that of defendant’s guilt. Every suggestion along that line made in the briefs and arguments of the prosecutor at most indicates that defendant “could have” killed his wife but does not exclude the reasonable hypothesis that someone else “could have” killed her. Even in a civil case, evidence on an issue such as causation will not be considered sufficient to justify submission to a jury if it will only support an inference that something “could have” been a cause. There must at least be evidence which will support a reasonable inference that it probably was a cause. See Fox v. Industrial Commission, 162 Ohio St., 569, 125 N. E. (2d), 1; Stevens v. Industrial Commission, 145 Ohio St., 198, 61 N. E. (2d), 198; Gedra v. Dallmer Co., 153 Ohio St., 258, 91 N. E. (2d), 256, 17 A. L. R. (2d), 453; Gerich v. Republic Steel Corp., 153 Ohio St., 463, 92 N. E. (2d), 393; Landon v. Lee Motors, Inc., 161 Ohio St., 82, 118 N. E. (2d), 147; Krupar v. Procter & Gamble Co., 160 Ohio St., 489, 117 N. E. (2d), 7; Bur-ens v. Industrial Commission, 162 Ohio St., 549, 124 N. E. (2d), 724.

Although the Court of Appeals in its opinion made no effort to state a set of facts and circumstances that the jury could have found from the evidence would not only support an inference of defendant’s guilt but also exclude any reasonable inference except that of defendant’s guilt, it did summarize the evidence offered by the state and, in order to suggest some basis for an inference of defendant’s guilt, endeavored to demonstrate that defendant’s story could not be reconciled with the facts and circumstances (a) that he had had his watch on the night before, (b) that that watch was found in a green bag outside his house and (c) that the watch had blood on it. In doing this, it said:

“There could be no possible way under the sequence of events as testified to by the defendant in which blood could have gotten on the watch unless it got there before the defendant had had his alleged encounter on the beach.”

It is obvious that this statement and this reason for questioning defendant’s story were both based upon the assumption that the dried blood found on defendant’s watch was that of his wife. However, the record affirmatively shows no reasonable basis for any such assumption. In view of the fact that it would not be unusual for such a slight amount of dried blood as was found on the watch to be found on the watch of a surgeon, the state endeavored to establish that this blood was of the same type as that of defendant’s wife. In the absence of such evidence, it could hardly be argued with reason that the small amount of dried blood on defendant’s wrist watch was probably the blood of his wife instead of that of her killer, or even someone else whom defendant had treated in an emergency in the ordinary course of his work as a hospital surgeon.

Miss Cowan, who endeavored by tests to establish for the state that the blood on defendant’s wrist watch was of the same type as that of defendant’s wife, testified on direct examination:

“Q. Now, did you attempt to type that blood, Miss Cowan, that was found on the watch? A. I attempted a crust typing with the OAB group, and it was inconclusive * *

On cross-examination she testified:

“Q. And you found that the type of blood on the watches was the same type as Marylin Sheppard’s blood, type O? A. No, sir.”

Furthermore, the state established by its evidence facts and circumstances which cannot be reconciled with any reasonable hypothesis except that of defendant’s innocence. For example, there was admittedly blood on the knee of defendant’s pants which could have gotten there when he discovered his wife after she had been killed, because the knee was at about the height of the bed which was covered with her blood. However, there was admittedly no other blood on those pants, although the evidence indicates without contradiction that defendant’s wife’s blood spurted all over the room. Certainly there would have been blood all over the pants of defendant if he had been her assailant.

The following appears in the record, after the testimony of the bailiff as quoted in the majority opinion:

“Q. The conversations that yon heard were from the side yon were on, is that right. A. That’s right.

U # * #

“Q. What it was said back to that juror, you have no knowledge of. A. No.”

The majority opinion endeavors to excuse this misconduct, in permitting jurors to converse with members of their families without first securing permission of the court, by stating that the resulting assurances of the health and welfare of their loved ones would tend to ease the jurors’ minds and make them better, more conscientious jurors. This may well be, but the statute provides that, when the cause is finally submitted and the court has permitted the jurors to separate during the adjournment of court over night “under supervision of an officer” as in the instant case, “such officer shall not permit a communication to be made to them * * * unless he does so by order of the court.” There was no such order of the court. How, in a case such as this, which the majority opinion states was conducted in an “atmosphere of a ‘Roman holiday’ for the news media” and in which the circumstantial evidence relied upon to support defendant’s conviction is so meager and equivocal, can it be said that it does not affirmatively appear from the record that the defendant was prejudiced and prevented from having a fair trial by such unauthorized and forbidden communications to members of the jury? We would be naive to assume or to presume that nothing was said about this trial to any of these jurors during the course of those unauthorized and forbidden communications to them.

A considerable amount of evidence was offered with respect to the character and reputation of defendant. Although, as stated in defendant’s brief, defendant did philander, a philanderer may have propensities for peacefulness. If defendant did have such propensities for peacefulness, as this evidence indicates, such evidence would be evidence of a circumstance tending to indicate that defendant did not commit the crime of violence involved in the instant case. Any instruction of the court that would have a tendency to influence the jury to disregard such evidence or not regard it as evidence bearing on the issue of whether defendant was guilty or innocent would be particularly damaging in a case such as this where the state relies entirely on circumstantial evidence. See Harrington v. State, 19 Ohio St., 264. This would be especially true in the instant case where commission of such a violent crime by this defendant would be entirely out of character and inconsistent, not only with the events in his home during the preceding evening, but also with everything known about defendant’s previous life and his family background.

The trial court charged the jury as follows:

‘ ‘ Some evidence has been given in this case concerning the claimed general conduct and reputation of the defendant and it is proper to present such evidence for your consideration. It is not admitted because it furnishes proof of guilt or innocence but because it is a matter of common knowledge that people of good character and reputation do not generally commit serious or major crimes. Such evidence, if believed, may be of some help to you in your consideration of the total evidence and the situation as a whole. The court wishes to caution you, however, that good character and a good reputation will not avail any person charged with a crime against proof of guilt beyond a reasonable doubt.”

This charge was misleading for several reasons. Certainly, in a case where the state relies entirely upon circumstantial evidence, the circumstance that defendant has a reputation for peacefulness would be some evidence of innocence, especially with respect to a crime of such violence as that involved in the instant case. The first part of the second sentence of this part of the charge certainly tends to indicate that such reputation might not be evidence of innocence (“not * * * proof of * * * innocence”). Also, the jury may have concluded that defendant’s “character and reputation” were not “good” because of his philandering. If so, the second sentence of this charge would certainly encourage the jury to give no effect to the evidence relating to his character and reputation that would be favorable to him. So would the last sentence. Further, the caution given at the end of this portion of the charge would necessarily indicate to the jury that the circumstance of defendant’s peaceful propensities should be regarded as of secondary importance to other circumstances. Certainly, these instructions of the court were misleading.

The record discloses that the defendant specifically excepted to this part of the charge and requested the court to charge that “evidence of reputation and character shall be considered by the jury in connection with all the other evidence in the case, and if the evidence of good reputation and character, taken in consideration with the other evidence, raises a reasonable doubt of guilt, the defendant may not be found guilty. ’ ’

This request was overruled. In giving such a charge, the court should probably have omitted therefrom the characterization of the character and reputation shown by such evidence as “good.” However, such a charge would otherwise have been substantially correct and would at least have alleviated the tendency to mislead the jury which this part of the charge as given probably had.

In the course of its charge the court said further:

“Illustrating now what would be direct evidence, let us assume that I had on a certain day a very fine cherry tree in my yard. The family happens to be away on that day and when I return about five o’clock in the evening I find my cherry tree chopped down. I proceed to investigate and first make inquiry of my next door neighbor Mr. Smith. I ask him if he saw any stranger doing anything in my yard on that day. He replies: ‘Yes, I saw George Washington chop it down with an ax.’ That would constitute direct evidence because Mr. Smith is relying on his own sense of sight and states what he himself saw with his own eyes. For that reason he is able to give direct evidence that George Washington chopped down that cherry tree.

“Let us now consider a case of circumstantial evidence in the same connection. Assume that on inquiry of Mr. Smith, my neighbor, he, in answer to my question, says that he did not see anyone chopping down my tree. I then ask him: ‘Did you see anyone about my place today.’ He replies: ‘Yes, I saw George Washington walk along your driveway from the yard to the street with an ax on his shoulder.’ Here is evidence of a fact which does not directly prove who chopped down my cherry tree but which permits a natural and fair in-inference that George Washington was in my yard with an ax combined with the fact that my tree was chopped down would constitute very definitely a piece of circumstantial evidence to be weighed in the consideration of a charge against George involving the act of chopping down that tree.”

This portion of the court’s charge was most unfortunate in the instant case and quite probably had a tendency to mislead the jury. The state was contending that defendant’s guilt should be inferred largely from the circumstance of his presence in the house at the time of the killing. The jury was told in effect that George Washington could be found guilty of chopping down the tree because he was seen nearby with an ax in his possession; and the jury would thus be influenced by this example to conclude that, since defendant was nearby at the time of the killing and “could have” committed the crime even though the nature of the murder weapon was never identified by any evidence, then defendant, like George Washington, did what was consistent with the circumstance of his presence. This is especially likely to have improperly influenced the jury, since everyone has been taught that George Washington did do what was consistent with the circumstance of his presence, that is, chopped down the cherry tree.

During the course of the trial over objection of the defendant, Mrs. Ahern was permitted to testify that defendant’s wife told her that a Dr. Chapman had told defendant’s wife that defendant was thinking about a divorce.

A motion to strike this conversation was overruled.

This evidence is clearly hearsay and we can see no possible justification for its admission. See Getter v. Getter, 115 Ohio St., 468, 154 N. E., 727; Potter v. Baker, 162 Ohio St., 488, 124 N. E. (2d), 140. There is other evidence which tends to indicate an estrangement between defendant and his wife, but there is also a conflict in the evidence about that. This testimony as to what defendant’s wife had said was undoubtedly given substantial effect by the jury in determining whether there was an estrangement between defendant and his wife, which might provide a motive for defendant to kill her.

In concluding that the misconduct of the bailiff was not sufficient to justify a reversal of the judgment of the Court of Appeals, the majority opinion relies upon that portion of Section 2945.83, Revised Code, which reads:

“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:

“ (E) Any other canse unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial. ’ ’

With regard to the hereinbefore mentioned errors in the court’s charge and in the admission of evidence, the applicable language of that statute is substantially different and reads as follows:

“(C) The admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby;

“(D) A misdirection of the jury unless the accused was or may have been prejudiced thereby * *

It is quite apparent that, in a case such as this, it would be impossible to reach any other conclusion but that this defendant “may have been prejudiced” by the foregoing errors in the court’s charge and by the admission of the foregoing hearsay evidence. There are other assignments of error which may be well taken, but it appears to me that in a case such as this it is sufficient to recognize that it would be impossible or unrealistic to say that there was no prejudice to this defendant from the foregoing errors.

Undoubtedly a retrial of this cause could be conducted with less of the “atmosphere of a ‘Roman holiday’ ” referred to in the majority opinion. The witnesses have already testified once and so one of the principal elements of suspense, which was an important factor in generating that atmosphere, would be absent. There should therefore be less question after such trial, than there undoubtedly now is as to whether this defendant was accorded a fair trial. If, as he apparently does, defendant .desires another opportunity to establish his innocence, even at the risk of his life (State v. Behimer, 20 Ohio St., 572), this court should not deny him that opportunity by summarily determining that the errors at his trial were not prejudicial. On the record before this court, such a determination would represent in my opinion a mere and a highly doubtful guess.

Hast, J., concurs in the foregoing dissenting opinion.  