
    BRIBERY — CRIMINAL LAW — JURY.
    [Franklin (2nd) Circuit Court,
    September Term, 1912.]
    Marvin, Winch and Niman, JJ., of the 8th circuit. Bitting by designation.
    
      L. E. Andrews v. State of Ohio. Isaac E. Huffman v. State of Ohio.
    t. Rearraignment not Prerequisite to Trial In Criminal Prosecution upon Overruling Motion to Quash and Demurrer Filed after Original Plea Withdrawn.
    Proceeding to trial without rearraignment after the withdrawal of a plea of guilty to enable accused to file a motion to quash and demurrer to the indictment, both of which being overruled, is not prejudicial to him, particularly since no objection - is interposed during trial to such procedure; such withdrawal not being absolute merely suspended tbe original effect of the plea, which upon adverse ruling upon the pleadings filed became restored.
    2. Verdict not Impeached as upon Evidence Aliunde by Affidavit' of One Obtaining Information of Misconduct from Juror.
    An affidavit of one obtaining information at second hand concerning misconduct from a juror himself not being evidence aliunde cannot be received to impeach a verdict.
    S. Experimenting with and Talking through Dictograph In Jury’s Possession as Exhibit in Criminal Case not Misconduct of Jurors.
    Experimenting with a dictograph and talking through it while considering a case in.which it is put in possession of the jury is not misconduct by the jury..
    4. Autoptlc Profference of Scientific Principles Involve'd In Dictograph Admissible by Experiments on Different Machine but Similar One In Evidence.
    i Experiments made by the' inventor and maker on a different dictograph and under different circumstances than that used to obtain evidence and to prove the crime complained of, are properly admissible to demonstrate the construction, and make autoptic profference' of the scientific principles involved in the operation thereof.
    5. Right of State to Employ Artifices to Detect and Publish Certain Public Crimes Distinguished.
    Instructions in a prosecution against a state legislator for accepting a bribe, proscribed by Gen. Code 12823, that the right of the state to use measures to ferret out and detect crime is distinguished between those used to “lure and entrap” persons into crime on the part of the state itself and those “necessary for the detection of punishment 'of some corrupt and criminal private purpose,” and artifices used to detect public officials suspected of engaging in the solicitation and acceptance of bribes, and justifying acts of a prosecuting attorney in “rendering assistance in the discovery” thereof, are not erroneous in that they establish different rules for one class of persons or interpose or assume issues not in the case.
    O. Records of Indictmént but not Conviction of Witness not Admissible to Impeach His Character or Credibility.
    The records of criminal cases in other states against several persons indicted in conjunction with a witness in this case, but not being records of conviction of such witness are not admissible to impeach his character or credibility in this case, particularly since on cross-examination he admitted his indictment.
    7. Baseball Record not Evidence to Fix Time.
    A record, kept In a newspaper office of the time and length of a certain ball game played on the day and in the city where accused is charged as a legislator with accepting a bribe, is not admissible to fix the time of a legislative committee meeting on the day in question at which accused asserts his presence to prove his absence at the time and from the place where the bribery was averred committed.
    
      8. Evidence of Good Character of Accused does not Raise Presumption of Innocence.
    The effect attaching to .evidence of accused’s good character and reputation is for determination by the jury and not the court; hence, an instruction that the reasonable effect of his good character and reputation Is to raise a presumption that he is not guilty of committing the crime charged is properly refused.
    9. Vigorous Language Characterizing Crime not Misconduct of Counsel.
    Vigorous language by a prosecuting attorney in a prosecution for bribery of a legislator, characterizing, the conduct of accused and denouncing the offense with which he was charged, discussing the evidence and drawing Inferences therefrom condemnatory of accused and his acts, is not misconduct of counsel.
    10. Jury Properly Instructed to Make Reasonable Effort to Agree.
    A jury in a criminal trial having the case under consideration for forty hours and probability' of agreement being questioned by a juror, may properly be urged to make all reasonable effort to agree upon a verdict and be ordered to retire for further consideration.
    Error to common pleas court.
    
      L. B. Andrews, Belcher & Connor, C. J. Mattern, and Cyrus Huling, for plaintiff in error, Andrews:
    
      Andrews, Harlem & Andrews, for plaintiff in error, Huffman .
    
      T‘. S. Hogan, Atty. Gen., and E" C. Turner, Pros. Atty., for defendant in error.
    
      
       Affirmed, no op., Andrews v. State, 87 O. S. 000; 57 Bull. 520.
    
   NIMAN, J.

These cases will be considered in their order.

In the first, L. R. Andrews, the plaintiff in error, was convicted in the common pleas court of Franklin county under an indictment charging him with soliciting and accepting from one F. S. Harrison, a bribe of $200 while said L. E. Andrews, was a member of the senate of the State of Ohio, with the intent and purpose that he might be influenced with respect to his official duty concerning a certain bill known as Senate Bill No. 256, pending in said senate. The defendant’s motion for a new trial having been overruled and sentence imposed, he prosecutes this proceeding in error to secure a reversal of the judgment of the court of common pleas.

The first claim of error to which, we direct our attention is the contention of the plaintiff in error that there was an empaneling of the jury in his case and a trial had without an existing plea of not guilty.

The record discloses that on May 5, 1911, the defendant was arraigned and entered a plea of not guilty. The entry of this plea, however, concludes with the following language:

“And leave is granted the defendant to withdraw his plea of not guilty and file pleadings to the indictment.”

On July 9, 1911, the defendant withdrew his plea of not guilty and filed a motion to quash and a demurrer. ' The language of the entry is:

“Now comes the defendant, L. R. Andrews, and by leave of court withdraws his former plea of not guilty heretofore entered herein, and is given leave to file a motion to quash, and demurrer, which are herewith filed. ’ ’

Subsequently, the motion and demurrer having been overruled, the defendant was placed on trial without another arraignment, and without another plea of not guilty being entered. This is said to constitute reversible error.

In our opinion, the case of Gormley v. State, 37 Ohio St. 120, is decisive of the question presented here. The language of the first paragraph of the opinion in that case is as follows:

~ “A plea of not guilty was entered on an indictment, and subsequently leave was granted to withdraw the plea, ‘for no other purpose’ than to enable the defendant to plead a former conviction. No order was made to strike the plea from the indictment, and the plea remained thereon. The plea of former conviction not having been sustained, the defendant was placed on trial without further plea, and convicted. Held, that such withdrawal of the former plea was not absolute, and when the plea of former conviction was disposed of, it was not error to try the ease on such plea of not guilty.”

The plea of not guilty made by the defendant when he was arraigned raised an issue between him and the state of Ohio. The withdrawal of his plea was not absolute, but was for the purpose.of enabling him to file a motion to quash and a demux-rer, which, could not be done as long as the plea stood. Such withdrawal suspended the effect resulting from the plea, but upon the overruling of the motion and demurrer, the effect attaching to the original plea of not guilty was restored. The issue then stood between the defendant and the state of Ohio as before the withdrawal of the plea for the purpose indicated.

This «conclusion does no injustice to the defendant, who proceeded throughout the trial without interposing any objection to being tried without another plea being entered. To hold otherwise would permit a defendant to appeal to the indulgence of the court in- obtaining leave to withdraw a plea of not guilty, to enable him to attack the indictment, and failing in his attack, to proceed to trial without objection and speculate on his chances of conviction or acquittal. "Whatever may be the rule in other states, we think the case of Gormley v. State, supra, states a just rule, and that the facts there were in effect no different in this case.

The plaintiff in error also relies for a reversal-on the claim that there was misconduct on the part of the jurors in their deliberations in conducting an experiment with the dictograph, which was in evidence. The proof offered of the alleged misconduct is not of such character that it could be considered by the trial court in passing on the motion as any proposition of law. can be, that unless there is evidence aliunde, affidavits of juror? are not admissible to impeach their verdict. Hulet v. Barnett, 10 Ohio 459; Barrer v. State, 2 Ohio St. 54; Kent v. State, 42 Ohio St. 426.

The law in this state on this subject being as indicated, it. is clear that the affidavit of one who obtains his information at second hand concerning the jury’s misconduct from a juror himself cannot be received to impeach the verdict. If this could bo done, the rule itself, which is founded on considerations of pub. lie policy, would be of no avail to prevent the abuses it was in. tended to avoid. Such was the holding in Parker v. Blackwelder, 3 Circ. Dec. 700 (7 R. 140), where,.in the opinion of the court, it is said:

“Affidavits of jurors cannot be received after verdict to impeach the same unless evidence aliunde is offered; and the affidavit of the attorney did not constitute such, a showing aliunde, because it simply contained a statement at second hand of what the juror himself testified to in his own affidavit, and the juror’s affidavit itself being incompetent, secondary proof of its statements would be likewise incompetent.”

In our opinion, when if there was competent evidence that the jury did experiment with the dictograph while considering the case, no misconduct could be charged to them on account thereof. There would certainly be no impropriety in the jury examining the instrument and talking through it, since it was an exhibit in the case and properly in their possession.

Another ground of error relied upon by the plaintiff in error is that his conviction cannot be sustained because, as he contends, the evidence shows a ease of entrapment to which the state was a party, and that the crime of which he was convicted was originated by detectives acting in conjunction with the legal representatives of the state.

Inasmuch as this question was before this circuit court and the Supreme Court in the ease of Rodney J. Diegle against the State of Ohio, and was there decided adversely to the contention, of the plaintiff in error here, we deem it unnecessary to consider the numerous authorities bearing on this subject in other jurisdictions. The unreported case of Fox v. State, to which our attention has also been called in the brief filed by the state in, the Supreme Court is the Diegle case, shows that the Supreme Court, in a case that arose long prior to this one, refused to interfere with the conviction of one who had much stronger ground to complain of entrapment than has the plaintiff in error.

It is contended on behalf of the plaintiff in error that the court erred in the admission of testimony, and our attention is specifically directed to that part of the testimony of the witness N. M. Turner, during which he was permitted to make experiments before the jury with a dictograph different from the one used in the Chittenden Hotel when the evidence of the alleged bribing of the plaintiff in error was secured and under different circumstances.

This witness testified that he was the inventor of the dictograph. He described it as an instrument that is supersensitive as to sound; that it would take up a minute sound, magnify it and make what would otherwise be an inaudible sound, audible. He testified at considerable length as to the construction of the dictograph and the scientific principle involved in its operation, and on request of the prosecuting attorney that permission be given to make an autoptie profference of the scientific principle involved in the dictograph before the jury, the witness was permitted to make the experiment or demonstration complained of.

Since the dictograph is an instrument of recent invention, and the scientific principle on which it operates but little understood, it was proper for the state to have the instrument explained and the principle on which it operates demonstrated. This could be done with an instrument different than the one used in the alleged detection of the plaintiff in error as well as with that one, and we are of opinion that the court committed no error in permitting the witness to explain, by actual demonstration, the scientific principle on which the instrument operates.

It is further contended by the plaintiff in error that the court erred in charging the jury.

In one part of the charge the court said:

“A prosecuting attorney whose attention has been called to any alleged criminal practice, is not acting without the pale of the law or his duty in rendering assistance in the discovery of such alleged criminal practice.”

It is urged that this portion of the charge introduces into the case an issue that did not exist; that it was nowhere shown that the plaintiff in error -was suspected by the prosecuting attorney or any one else of any criminal practice.

We think, however, that this correctly states the law, and there was sufficient evidence before the jury to make it a proper proposition to include in the charge.

In another portion of the charge, the court said:

‘ ‘ In considering the law with reference to the rights of the state to ferret out and detect crime, the law makes a distinction, as a matter of public policy, between measures used purely to lure and entrap a person into crime on the part of the state, itself, from those necessary for the detection and punishment of some corrupt and criminal private purpose on the one hand, and an artifice used to detect public officials suspected of being engaged in the solicitation and acceptance of bribes which vitally ■affect the public welfare.”

Complaint is made.of this that it not only is open to the objection urged against the language used in that part of the charge already considered, but also that it establishes a rule of law to govern one class of individuals different from that in which it is generally applied to all other classes of individuals.

We do not consider the objection well taken. This part of the charge, as well as the other part considered, is closely connected with question of entrapment, and when the Supreme Court passed upon the question of entrapment, it must necessarily have sanctioned the principle of law embodied in this language of the charge.

It is strongly urged by the plaintiff in error, as a ground for reversal of the judgment of the court below, that the verdict is not sustained by sufficient evidence and is against the manifest weight of the evidence.

It would be profitless for us to review in detail the evidence •resulting in the conviction of the plaintiff in error. It is sufficient to say that a consideration of the evidence convinces us that we would not be justified in interfering with the verdict and judgment on this ground.

We. have carefully considered all the errors assigned in this proceeding, and find no error prejudicial to the plaintiff in error.

In the second of these eases, Isaalc E. Huffman, the plaintiff in error, was also convicted in the court of common pleas of Franklin county, of accepting a bribe while a member of the Ohio State Senate. He was sentenced to three years’ imprisonment in the penitentiary, and by this proceeding in error seeks a reversal of the judgment against him.

It is contended on his behalf that the court made many erroneous rulings on questions of evidence prejudicial to his during the course of the trial.

Our attention is specifically directed to the refusal of the trial court to permit the defense to read in evidence certain portions of the record of the case of The People of the State of Illinois v. August M. Unger. Francis Wayland Brown and Frank H. Smiley, a criminal case in which the Frank TI. Smiley mentioned was the detective who testified on behalf of the state in the case before us.

It appears, however, that the portion of the record of that ease ruled out by the court pertained not to Smiley, but to the other defendants therein, who were in no way connected with this case. It was ruled out by the trial court on the ground that it was no part of the record of the Smiley case, and in our opinion the ruling was correct.

Another ruling complained of is the refusal of the court to allow the defendant to introduce in evidence the record of the case of the State of Illinois v. Bernstein, et al., in which the said Frank H. Smiley, referred to as a defendant in the other criminal case in Illinois, was indicted in conjunction with others. This record sought to be offered in evidence, however, did not purport to be a record of a conviction, and was, in fact, nothing more than a record of an indictment.

We think that the court committed no error in excluding this record. The witness Smiley, or Harrison, as he was otherwise known, admitted on cross-examination the fact of his indictment, and the defendant, therefore, obtained the benefit of whatever was damaging to the credibility of this witness, without reference to the indictment itself. The indictment created no presumption of guilt on his part, and the record thereof was not competent evidence to impeach his character and credibility.

The plaintiff in error complained also that the court refused to receive in evidence a record kept in the office of a newspaper of Columbus, of the time and length of a baseball game played in Columbus between the Columbus and Milwaukee b'aseball teams on April 27, 1911.

One of the questions in issue between the state and the defendant was as to the time when the defendant was in the senate smoking room. The defendant’s witnesses claimed it was from 5 to 6 o’clock P. M. and that the committee with which the defendant' met did not convene until abuot the conclusion of the baseball game. The record of the time and length of the ball game, which was offered and ruled out, was offered for the purpose of fixing the time of the meeting of this committee.

We are unable to discover any principle on which such record would be competent. As pointed out by the trial court in his ruling, there is a rule of the law of evidence which permits certain classes of records that bear a certain authenticity, such as market reports, weather reports, and those that are prepared by the class of persons skilled or -acquainted with the subject, to be received in evidence. The report or record under consideration clearly does not belong to this class.

Complaint is also made by the plaintiff in error that Senator Reynolds, a witness for the state, was asked On redirect examination by the prosecuting attorney, whether or not he had ever heard the claim, prior to the first Huffman trial, that Huffman was in the senate chamber until 6 o’clock or after on April 27, 1911, and that over the objection of the defendant he was permitted to answer.

Reference to the cross-examination of Senator Reynolds shows that he was asked numerous questions by counsel for the defendant on the subject of when he first told the facts to which he' had testified on direct examination to any one. The question to which objection was made wias apparently asked by the state for the purpose of giving an opportunity to the witness to explain why he had not made known his story at some earlier time. If any inference was to be drawn unfavorable to the witness, and favorable to the defense, by reason of the fact that he had not told his story, which bore upon the alibi of the defendant, it seems, clear to us that the state had the right to show by the answer to this question, which was answered in the negative, that the witness had never heard of the claim asserted by the defendant prior to this first trial, and the court committed no error in his ruling on this question.

We have carefully examined the numerous other errors complained of in the admission and rejection of evidence, and our conclusion with respect to these rulings is that the court committed no error prejudicial to the defendant in his ruling.

Another ground of errqr insisted on by counsel for the plaintiff in error is based upon the alleged misconduct of the prosecuting attorney. One act of misconduct charged against him was the asking of Senator Dore, a witness for the defense, on cross-examination, the following questions: '

“Senator, you have just been re-examined on your calling of Senator Huffman before that investigating committee, and what you were investigating, and I will ask you if you brought in witnesses before that committee to prove particular charges against Senator Huffman as to having accepted $250 from Charles Salen to vote on section 15 of the Central Board bill. ’ ’

The witness answered that he did not.

Counsel for the defendant interposed a protest against the conduct of the prosecuting attorney in asking this question, insisting that he was embodying in his question an insinuation prejudicial to the defendant which had no basis in fact. The court vpry promptly instructed' the jury in clear terms not to consider assumptions and arguments of counsel in the progress of the trial.

The question was not a proper one to ask, but in practically every trial counsel ask questions which call for incompetent testimony. It is not necessarily misconduct to do so. Counsel may be honestly mistaken in asking a question calling for incompetent testimony.

In view of the nature of the examination of Senator Dore by counsel for the defendant, which seems to have suggested the question complained of to the prosecuting attorney, it is likely that the question was put in the honest belief that the answer sought was competent. In any view of the matter,' the instruction of the court must have removed any chance of prejudice resulting to the defendant by reason of the question having been asked.

It is claimed also that the prosecuting attorney was guilty of misconduct in the cross-examination of Senator McGuire, a witness for the defendant.

The prosecutor started to ask the question whether or not the witness, after his testimony in a prior trial of this ease, had been branded by the papers all over the state in a certain way which the question does not disclose, because.it was not finished. An objection having been interposed on behalf of the defendant, the court admonished the prosecuting attorney that the question was not proper.

And at another stage of the cross-examination, the prosecuting attorney asked the witness this question: “Now any other part of this alibi that you know that you have not testified to yet?” Objection was made to this form of question, and the court again ruled that it was not a proper form of question. "We think 4the rights of the defendant were protected by the ruling of the court on these objectionable questions, and that no prejudice resulted to the defendant therefrom.

The prosecuting attorney is also charged with misconduct in his closing argument in the use of the following language: “Pretty soon if they keep on — if these crooks that employ lots of lawyers — the prosecuting attorney will have to sit back and wear kid gloves and play ping while they play rings around the state. This is the very thing that is running through this country now. Such damnable tactics have been played upon the courts and juries that the people are getting tired of it.”

And again:

“We talk about special interests — -this country is now aroused as no country on God’s green earth was ever aroused before, about special privilege, that has gained its way in the halls of the legislature. Now has it done it? By bribery.”

While the language used by the prosecuting attorney in his argument was vigorous, we are not convinced that it exceeded the legitimate bounds of argument. He had the right to discuss the evidence and draw all reasonable inferences therefrom favorable to bis side of tbe case. He had the right to characterize, by proper language, the conduct of the defendant as disclosed by the evidence, and to denounce the offense with which he was charged. As long as the prosecutor did not go outside of the evidence and make a plea to the passions and prejudices of the jury, he was not guilty of misconduct even though his language was extremely vigorous.

We find no error prejudicial to the plaintiff in error in any of the conduct of the prosecuting attorney.

Complaint is made also by the plaintiff in error of certain portions of the charge to the jury. A part of the language objected to is substantially the same as that considered in this opinion in dealing with the Andrews’ case, and it is unnecessary for us to repeat our views on such portion of the charge.

Our attention is directed to the instructions given to the jury urging them to agree upon a verdict, if possible, and it is claimed that the court erred in these instructions.

After the jury had had the case under consideration for about forty hours, they were brought before the court and inquiry was made by the court if there was any probability of the jury being able to agree upon a verdict. One of the jurors responded that he did not believe there was any probability of agreeing on a verdict; that they had tried in every way, shape and form. The court thereupon said:

“It is customary for courts to inquire within a reasonable time if there is any probability of the jury agreeing. There seems to be some difficulty for you to agree in this case. The court urges upon the jury that since the trial of this case means a great deal to the state and the defendant, and the trial has been at a considerable cost to the county ánd to the defendant, the court urges you to make all reasonable effort to agree upon a verdict.
“You should consider that the case must at some time be decided; that you were selected in the same manner and from the same source from which any future jury must be, and tttere is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial and more competent to decide it, or that some clearer evidence will be produced on one side or the other, and with this view it is your duty to decide the ease, if you can conscientiously do so. You will again retire, gentlemen, and make a reasonable effort to agree upon a verdict.”

The length of time during which a jury can be held together for the consideration of a case before them, rests within the discretion of the trial court, and in the absence of an abuse o£ that discretion, no legitimate complaint can be based- on the action of the court in keeping the jury together. Mitchell v. State, 42 Ohio St. 383; State v. McMillen, 69 Ohio St. 247 [69 N. E. Rep. 433].

' Instructions similar to those given by the trial court in this case have been approved in numerous decisions in other states: Pierce v. Rehfuss, 35 Mich. 53; State v. Gorham, 67 Vt. 365 [31 Atl. Rep. 845]; Clinton v. Howard, 42 Conn. 294; Hannon v. State, 70 Wis. 448 [36 N. W. Rep. 1].

Reference to the opinion of this circuit court in the Diegle ease shows that practically the same language was employed by the trial court in that case as was used by the court in this case, and the propriety and soundness of such instructions must be deemed to have been approved both by this court and the Supreme Court.

One of the requests of the defendant to charge was:

“That the reasonable effect of his good character and reputation is to raise a presumption that the defendant was not guilty of committing the crime with which he is charged. ’ ’

The court did not give this request in the language in which it is framed, but did charge the jury as follows:

‘ ‘ Testimony has been brought before you to show what the -reputation and character of the defendant is for honesty and integrity. This evidence reflects, among other things, upon the probability of the defendant committing any such offense as he is charged with here. In determining the guilt or innocence .of the defendant, this testimony is to be considered by you with all the other evidence, and the. weight to be attached to the fact of 'good behavior and reputation, like that to be attached to every other fact of the case, is for the jury alone to determine.”

It is contended that the court erred in not giving the request on this subject in the language submitted.

We are of opinion that the effect attaching to the evidence of the defendant’s good character and reputation was for the jury, and not for the court, and that the language of the request assumed, as a matter of fact, that the defendant’s good character and reputation had been established. We think the ■trial court properly charged the jury on this subject, and that the defendant was not entitled to have the charge given in the exact language in which the request was framed.

The strongest contention made in this case on behalf of the plaintiff in error is that the evidence established from him a complete alibi, and that the verdict of guilty is therefore not sustained by sufficient evidence, and is against the manifest weight of the evidence.

The crime of which the defendant was convicted was claimed by the witnesses for the state to have occurred in room 317 of the Chittenden Hotel, in the city of Columbus, on April 27, 1911, sometime between 5:45 o ’clock and 6:30 o ’clock on the afternoon of that day. The defendant produced the testimony of a number of witnesses tending to prove that during the entire period fixed by the state as the time of the defendant’s call at the Chittenden Hotel and the acceptance of the bribe by him, he was occupied elsewhere. The evidence produced by the defendant tended to establish the fact that he was in a committee room at the State House until about 6 o’clock, and that from there he went to a restaurant, which he did not leave until about 6:45, and that after leaving the restaurant he went with his wife to his apartments in the Virginia Hotel.

We have examined all the evidence bearing on this defense with great care, realizing fully the importance of the correct determination of the question involved, both to the state of Ohio and to the defendant. The alibi was assailed by the state, and We are impelled to the conclusion that it was not without flaws. The question was properly submitted to the jury, who had the opportunity of observing all of the witnesses who' testified, and attach such weight to their testimony as they believe proper.

We think the evidence on the subject of the alibi, as well as on the other issues involved, was such that the jury were justified in returning a verdict of guilty, and we must decline, therefore, to interfere with that verdict on the ground that it is not sustained by sufficient evidence.

We' have examined all of the errors assigned in this casey, and find nothing prejudicial to the rights of the plaintiff in error. It follows from the conclusions reached in these eases that the judgment in each case must be affirmed.

. Marvin and Winch, JJ., concur.  