
    PROSECUTION FOR SOLICITING AND ACCEPTING A BRIBE.
    Circuit Court of Franklin County.
    L. R. Andrews v. State of Ohio; and Isaac E. Huffman v. State of Ohio. 
    
    Decided, November, 1912.
    
      Bribery — Competency of Evidence in Support of an Indictment for Soliciting and Accepting — Jury Experiment With Dictograph — -Current Records Which Are Admissible in Evidence — Misconduct of Jury — Misconduct of Prosecutor — Entrapment—Coercion of Jury— Withdrawal of Plea of Not Guilty.
    
    1. Where a plea of not guilty is withdrawn for the purpose of der murrer or the filing of a motion, its withdrawal is not absolute, but merely suspends the effect of the plea until the questions which have been interposed have been determined, and a determination adverse to the claim of the defendant restores the plea and the issue which it raised between the state and the defendant, and it is not error in such case to proceed with the trial without the entering of a second plea.
    2. Misconduct on the part of a jury can not be based upon the unsupported affidavit of one who obtained his information from a member of the jury.
    3. Moreover were it established by competent evidence that the jury in the present case experimented with and talked through a dictograph, which had been made an exhibit in the case and was properly in their possession, misconduct on the part of the jury would not be shown.
    4 It is competent to admit a- dictograph in evidence, with ah explanation of the scientific principles upon which it operates and a demonstration of the instrument in operation, notwithstanding the one so used was not the identical instrument used in the detection of the defendant.
    5. It was not error under the circumstances of this case to charge the jury that “a prosecuting attorney, whose attention has been called to any alleged criminal practice, is not acting without the pale of the law or of his duty in rendering assistance in the discovery of such criminal practice.”
    6. The record kept in a newspaper of the time and length of a base ball game 'is not competent as evidence, under the rule which permits a certain class of records'bearing marks of authenticity, such as market and weather reports, to be received in evidence.
    7. Inasmuch as in practically every trial counsel ask questions which call for incompetent testimony, it will not be regarded as misconduct so to do, where there is reason to believe counsel was honestly mistaken as to the- competency of the testimony he was seeking to bring out.
    8. So long as a prosecutor does not go outside of the testimony and make a plea to the passions and prejudices of the jury, he is not. guilty of misconduct, even though he may have used language which was extremely vigorous.
    9. It is not an abuse of discretion for a trial judge to keep a jury out for forty hours in an important case and then send them back to their room with an admonition as to the importance to all concerned that they should agree upon a verdict.
    10. It is not error to refuse to charge a jury in a criminal case “the reasonable effect of his (the defendant’s) good character and reputation is to raise a presumption that the defendant was not guilty of committing the crime with which he' is charged,” inasmuch as such a charge assumes that the good character and reputation of the defendant had been established.
    
      L. B. Andrews, Belcher ,cfe Connor, Con J. Mattern and Cyrus Huling, for L. E. Andrews.
    
      Andrews, Harlan & Andrews, for Isaac N. Huffman.
    
      T. 8. Hogan, Attorney-General, and E. C. Turner, Prosecuting Attorney of Franklin County, contra.
    Marvin, Wincb and Niman, JJ., of the Eight Circuit, sitting, by designation, in place of Dustin, Allread and Ferneding, JJ., of the Second Circuit.
    Niman, J.; Winch, J., and Marvin, J., concur.
    Error to Court of Common Pleas.
    
      
       Leave to file petition in error refused by the Supreme Court, December 17, 1912.
    
   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. ITarrison, a bribe of $200 while said L. R. 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 impaneling of the jury in his case and a trial had without an existing plea of not guilty.

The record discloses that on the 5th day of May, 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 the 9th day of July, 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. The State of Ohio, 37 O. S., 120, is decisive of the question presented here. The language of the first paragraph of the opinion in that ease 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 tlie 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 case 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 demurrer, 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 of Ohio, supra, states a just rule, and that the facts there were in effect no different than in this case.

The plaintiff in error also relies for a reversal on the claim that there was misconduct on the part of the jury in their de-, liberations 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. It is well settled in Ohio as any proposition of law can be, that unless there is evidence aliunde, affidavits of jurors are not admissible to impeach their verdict. Hulet v. Barnett, 10 Ohio, 460; Farrar v. State, 2 O. S., 54; Kent v. State, 42 O. S., 426.

The law in this state on this snbjeet being as indicated, it is clear that the affidavit of one who obtains his information at second hand concerning the jnry’s misconduct from a juror himself can not be received to impeach the verdict. If this could be done, the rule itself, which is founded on considerations of public policy, would be of no avail to prevent the abuses it was intended to avoid. Such was the holding in Parker v. Blackwelder, 7 C. C., 140, where, in the opinion of the court, it is said:

“Affidavits of jurors can not be received after verdict to impeach the same, unless evidence aliunde is offered, and the affidavit of the attorney did not constitute 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, 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 ease and properly in their permission. S

Another ground of error relied upon by the plaintiff in error is that his conviction can not be sustained because, as he contends, the evidence show a case 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 case of Rodney J. Diegle v. 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 in 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, \ K. M. Turner, during which he was permitted to make experií ments 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. Tie 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 autoptic 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 cour.t 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 cases Isaac E. IRuffman, 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 him 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 H. Unger, Francis Wayland Brown and Frank H. Smiley, a criminal case in which the Frank IT. Smiley mentioned was the detective who testified on behalf of the state in the case before us.

It appears, however, that the part 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 State of Illinois v. Bernstein et al, in which the said Frank H. Smiley, referred to as a defendant in the other criminal ease 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 convinction, 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 complains 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 baseball 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 about 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 re-direct 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 six 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 was 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 conclusions with respect to these rulings is that the court committed no error prejudicial to the defendant in his ruling.

Another ground of error insisted on by counsel for the plaintiff in error is based upon the alleged misconduct óf 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 question:

“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 very 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 presecuting 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 case, 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 the 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 beep 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 privileges, that has gained its way in the halls of the Legislature. Plow 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. Pie had the right to discuss the evidence and draw all reasonable inferences therefrom favorable to his side of the 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 instruction 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 nid 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 and 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 there 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 of that discretion, no legitimate complaint can be based on the action of the court in keeping the jury together. Mitchell v. State, 42 O. S., 363; State v. McMillen, 69 O. S., 247.

Instructions similar to those given by the trial court in this ease have been approved in numerous decisions in other states: Pierce v. Rebfuss, 36 Mich., 52; State v. Gorman, 67 Vt., 365; Clinton v. Howard, 42 Conn., 294; Bannon v. State, 70 Wis., 448.

Reference to the opinion of this circuit court in the Diegle case shows that practically the same language was employed by the trial court in that case as was used by the court in this ease, 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 for 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 occured in room 317 of the Chittenden Hotel, in the city of Columbus, on the 27th day of April, 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 accptance 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 attaching such weight to their testimony as they believed 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 justfied 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 ease, and find nothing prejudicial to the rights of the plaintiff in error. It follows from the conclusions reached in these cases that the judgment in each case must be affirmed.  