
    Easler v. The State of Ohio. Nussbaum v. The State of Ohio.
    
      Criminal law — Waiver of trial by jury of twelve — Defendant consenting cannot deny trial by lawfully constituted jury, when — Affidavit of misconduct of juror insufficient— Charge to jury — Two defendants tried together rely upon sepa/rate and distinct alibis — Prejudicial to charge jury to convict both if either guilty — Error not cured by submitting forms for separate verdicts of guilty.
    
    1. Defendant, charged with crime, or his counsel in his presence, may waive trial by jury of twelve persons, and defendant, consenting to such waiver, cannot be heard to deny that he was tried by jury lawfully constituted.
    
      2. Affidavit, not made part of bill of exceptions, reciting only that juror closed his eyes as if attempting to sleep on several occasions, which fact did not appear by certificate of trial judge, held insufficient in form to establish misconduct of juror as ground for reversal.
    3. Where each of two defendants tried together relied on alibi entirely separate and distinct from that claimed by codefendant, and each claimed alibi must stand on own merits, instruction advising jury that, if they find either defendant guilty, they should return verdict of guilty against both, held prejudicial error.
    4. Prejudicial effect of charge to convict both defendants if either was found guilty, where alibi of each was separate from that of codefendant, cannot be cured by fact that forms of verdict were submitted by which jury could return verdict of guilty against either defendant.
    (Decided April 11, 1927.)
    Error : Court of Appeals for Lucas county.
    
      Mr. Boyal B. Bimer and Mr. John W. Baab, for plaintiffs in error.
    
      Mr. L. W. Hunt, prosecuting attorney, and Mr. G. A. Irwin, for defendant in error.
   Richards, J.

These two plaintiffs in error, Walter Easier and Albert F. Nussbaum, were jointly indicted, and were tried together on a charge of burglary and larceny, but they prosecute separate proceedings in error. The same questions being involved in each case, they will be considered and determined together.

While the indictment charged the defendants with burglary and larceny of certain chickens, the verdict found the defendants not guilty of burglary, but guilty of grand larceny.

It is urged that the convictions should be reversed for numerous reasons.

It is insisted that the ease against the two defendants was tried to eleven jurors only, and that, although this was done with the defendants’ consent, and the consent of the court, it was not a lawful jury, and therefore the judgment should be reversed. Little doubt can exist, after the decision of State ex rel. Warner v. Baer, 103 Ohio St., 585, 134 N. E., 786, that defendants charged with crime may waive, or their counsel may waive in their presence, trial by a jury of twelve persons. Where a defendant so on trial consents to such waiver, he will not be heard to deny that he was tried by a jury lawfully constituted.

Misconduct of one of the jurors is urged as a ground for reversal, but this fact is only shown by an affidavit which is not even made a part of the bill of exceptions, and only recites that the juror closed his eyes as if attempting to sleep on several occasions. We think the affidavit is insufficient in form, and the fact sought to be established nowhere appears by certificate of the trial judge.

While the defendants were tried together, each set up a separate defense of alibi, one of them claiming that he was in Detroit at the time the crime was committed, and the other that he was staying at a friend’s house, and was in bed and asleep. It will thus be seen that the defense of each depended upon the evidence relating to his whereabouts at the time of the commission of the crime, and had nothing to do with the presence of his codefendant. Under this state of facts the trial'judge charged the jury as follows:

“If the jury, after a fair consideration of the evidence in the case, can say that it has an abiding conviction to a moral certainty of the guilt of either of these defendants of the crime charged in the indictment, then they have both been proved guilty beyond a reasonable doubt, and it would be the duty of the jury in that instance to say so by their verdict, regardless • of the consequences to the defendants.”

Later in the course of the charge the trial judge instructed the jury as follows:

“If, however, in considering the evidence in relation to the alibi along with all the other things in the case, the jury can still say that it has an abiding conviction of the guilt of the defendants, or either of them, then it would be the duty of the jury to find the defendants guilty in spite of the testimony in relation to the alibi.”

The court further instructed the jury:

“If, after consideration of all of the evidence in the case, the jury believes that these defendants, or either of them, are guilty of the crime charged in the indictment, beyond a reasonable doubt, or of the included offense of larceny, as I have charged you, then the mere fact that proof has been furnished of the good reputation will not avail to save them from the consequences of their crime. In other words, if the jury can, considering the evidence in relation to reputation and character, along with all of the other evidence in the case, still say that it has an abiding conviction of the guilt of these defendants, or either of them, then, of course, the mere fact of good reputation will not avail to save the defendants from a conviction in this case.”

Of course, the natural and legitimate effect of instructions of the character quoted is to advise the jury that, if they find either defendant guilty, they should return a verdict of guilty against both, and this in spite of the fact that each defendant relied on an alibi which was entirely separate and distinct from that claimed by his codefendant, and that each claimed alibi must stand or fall on its own merits as disclosed by the evidence. Certainly it cannot be contended that such a principle ever had a place in jurisprudence.

The prejudicial effect of the charge in this respect cannot be cured by the fact that forms of verdicts were submitted by which the jury could return a verdict of guilty against either defendant. These forms merely provided an opportunity for the jurors to do what they were instructed they ought not to do.

It is contended, further, that the judgments are manifestly against, the weight of the evidence. A careful examination of the evidence contained in the bill of exceptions convinces the court that the judgments are not manifestly against the weight of the evidence.

We find no prejudicial error in the record, except in the charge of the court, but for the errors indicated in the charge the judgments must be reversed and the causes remanded for a new trial.

Judgments reversed and causes remanded.

Williams and Lloyd, JJ., concur.  