
    No. 171
    DARDEN v. STATE OF OHIO
    Ohio Appeals, 4th Dist., Franklin County
    No. 1135.
    Decided Jan. 15, 1924
    513. FALSE, REPRESENTATION — Where indictment charges taking a certain sum of money under false representation the question of the amount taken is, question of fact for the jury.
    225. CHARGE TO JURY — Where a court’s charge tends to intimidate the jury such charge held to be prejudicial.
    Attorneys — Henry H. Bradford, for Darden; J. R. King and J. A. Godown, for State.
   BY THE COURT.

Epitomized Opinion

First Publication of this Opinion

Darden was indicted upon a charge of obtaining $35.50 from the Smith Piano Company. The indictment charged that Smith, with intent to defraud, represented that one Spang-ler was then in the employ of the Company and that there was due to the latter the sum of $35.50. The evidence disclosed that there was actually due Spangler $10.00 and out of the check that Smith received he retained $25.50. The trial court throughout the charge made it clear to the jury that in his opinion if the jury found the accused guilty they were bound to find that the amount of property secured by such false representation was $25.50.

General exceptions were taken to this charge and the mattér called specially to the court’s attention. The Court also in its charge in admonishing the jury said: “If you were to consider and allow the sum of m'oney involved in this case ... to have any weight or influence upon your mind . . . you would not be fit to sit as jurors in any subsequent case. If you are influenced by any matter of sentiment or sympathy — if there is any way of finding it out — we would see that you were never allowed to sit upon a jury again.” As a verdict of guilty was rendered, defendant prosecuted error. In reversing the judgment of the lower court, the Court of Appeals held:

1. As the indictment charged that the sum of $35.50 was obtained by virtue of the false representations and as competent evidence was introduced which showed that $35.50 was obtained, nevertheless the indictment having charged that money was obtained, it was competent for the jury to determine from: all the evidence whether the full amount of $35.50 was obtained by virtue of the false representations or whether a less sum was obtained; therefore the court erred in its charge on this point.

2. While the trial court may properly caution the jurors as to their general duties, yet statements that jurors in criminal cases should exhibit courage and if they did not do so to the satisfaction of those in authority such juror or jurors would not be allowed in the future to act as jurors are prejudicial in character.  