
    Howell v. The State of Ohio.
    
      Criminal law — First degree murder — Section 12400, General Code —Recommendation of mercy — Discretion of jury absolute — Considerations warranting recommendation — Charge to jury — Argument to jury — Comment by state’s counsel upon recom* mending mercy.
    
    1. Section 12400, General Code, giving the jury discretion to recommend mercy in cases of conviction of first degree murder, confers an absolute discretion which should not be influenced by the court. However, this discretion should be exercised in view of all the facts and circumstances disclosed by the evidence.
    2. Under his oath in the trial of capital offenses, the juror is required to make true deliverance between the state and the accused. This requires not only his determination whether the accused' is guilty of first degree murder, but whether a recommendation of mercy should be made. Both questions should be determined from the knowledge the juror acquires as a juror and from the facts and circumstances developed or undeveloped by the evidence.
    3. In such a case it is not error for the court, in its charge, to say to the jury that it was their duty “to consider and determine whether or not, in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence,” they should or should not make such recommendation.
    
      4. In such a case, it is not error for the trial court to permit counsel for the state to argue that a recommendation for mercy should be withheld. (Shelton v. State, ante, 376, followed.)
    (No. 16821
    —Decided May 3, 1921.)
    Error to the Court of Appeals of Stark county.
    Plaintiff in error,. Dick Howell, was indicted and convicted of murder in the first degree, without recommendation of mercy. The indictment charged premeditated murder. On the trial the defendant offered evidence claiming an accidental killing. The judgment pronouncing sentence upon the accused was affirmed by the court of appeals, whereupon error was prosecuted to this court.
    The principal errors claimed are that the trial court unduly invaded the province of the jury in its general charge upon the question of recommendation of mercy; and that it also erred in permitting the prosecuting attorney to argue that mercy should be withheld from the accused. In regard to the recommendation of mercy the trial court charged the jury as follows:
    “The statute in force at the present time authorizes a jury, if they find an accused guilty of murder in the first degree, to recommend mercy; in which event, if such recommendation is made by a jury, the sentence shall be imprisonment in the penitentiary during life; not to be recommended for pardon by the Board of Pardons, and not to be paroled by the Board of Managers of the penitentiary except upon proof of innocence beyond a reasonable doubt. To this extent, therefore, the jury have the power to fix the penalty incident to a verdict of murder in the first degree. It is your duty, therefore, in the event you find the defendant guilty of murder in the first degree as charged in the indictment, to consider and determine whether or not in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you should or should not make such recommendation.”
    Five forms of verdict were submitted to the jury, one of which included a verdict finding the defendant guilty of murder in the first degree, as charged in the indictment, with the addition of the words, “and the jury recommends mercy.” It is also urged that the trial court committed error in permitting the prosecuting attorney, over the objections of the defendant, to argue that the facts disclosed by the evidence did not justify the recommendation of mercy by the jury, and that such should be withheld from the accused. Other errors were presented in this case, but the two alleged errors referred to are the ones which procured the admission of the case to this court for review, and the only ones which the court thinks necessary to be reviewed.
    
      Mr. Frank N. Sweitser and Mr. J. H. Robertson, for plaintiff in error.
    
      Mr. Walter S. Ruff, prosecuting attorney, and Mr. C. B. McCUntock, assistant prosecuting attorney, for defendant in error.
   Jones, J.

In respect to the right of the jury to recommend mercy the trial court charged them that it was their duty, in the event they found the defendant guilty of murder in the first degree, as charged in the indictment, “to consider and determine whether or not, in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you [they] should or should not make such recommendation.”

The Ohio statute, touching upon that subject, is as follows:

“Sec. 12400. Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in. which case the punishment shall be imprisonment in the penitentiary during life.”

It is now urged that the trial court erred in limiting the jury’s discretion to recommend mercy to “the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence.” And the claim is made that by the foregoing statute this discretion is unlimited and unrestricted; that it is committed to the jury as a gift and may be exercised irrespective of what the testimony may disclose; that, while the jury may consider the evidence in the exercise of this discretion, they are not required to do so, but may disregard the evidence entirely, if they see fit, in withholding or making the recommendation for mercy.

On the other hand it is claimed by the state that while the discretion of the jury may be unrestricted and absolute, it must be exercised only in view of the evidence and must be confined to the facts and circumstances produced or lacking in the trial of the case. When the jury is impaneled and sworn it is presumed that the panel is composed of impartial jurors. For the purpose of the trial the juror is presumed to obtain his knowledge entirely from the facts and circumstances related or observed on the trial of the cause. The juror is not presumed to and should not exercise his convictions upon anything that he has heard outside of the case, but should confine himself entirely to the evidence, or lack of evidence, as the case may be, in rendering his verdict. Flis oath requires him to “well and truly try, and true deliverance make, between the state of Ohio and the prisoner at the bar.” Under this criminal section of the Code (Section 13656) he is required to make true deliverance between the state of Ohio and the prisoner at the bar in two respects. First, he is required to determine by his verdict whether the accused is guilty of murder in the first degree; and, second, if so, whether he shall escape the punishment of death by a recommendation of mercy. These two vital questions are submitted for the juror’s determination, and how is it possible for him to make true deliverance as required by his oath except from the case that may be presented to him upon trial ? The juror is supposed to exercise the knowledge that he obtains as a juror. If the contention of the plaintiff in error is sound, the jury may ignore the evidence in its entirety and confine themselves to what they may have heard outside of the case, from hearsay or from newspaper reports; or permit themselves to be governed by some whim or caprice. The contention of counsel for the accused would permit each member of the panel to qualify the sentence, otherwise placed upon the accused, not by what he may have heard upon the trial, but by reason of a conscientious scruple against inflicting the death penalty. This could not have been the purpose of the legislature, because Section 13653, General Code, provides that the following shall be a sufficient cause for challenge to a person called as a juror on an indictment: “Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death.”

It is submitted further, that, if the argument of counsel for plaintiff in error is sound, defendant could ask the court to instruct the jury, as a matter of law, that they had a right to qualify their verdict by recommending mercy, “no matter what the evidence may be.” This form of instruction was asked for and declined by the trial court in the case of Winston v. United States, 172 U. S., 303, a case to which we shall later allude.

The question here presented has been discussed and decided in many jurisdictions which have a statute very similar to ours, permitting the jury to qualify their verdict in capital cases by a recommendation of mercy. We shall now refer to a few of those cases, including some of those cited by the plaintiff in error.

In Inman v. State, 72 Ga., 269, where a similar statute was involved, the trial court instructed the jury as follows: “If you find him guilty, and the case be one in which you think you are justified in doing so, the facts and circumstances justify you in doing so, you -can say in your verdict that ‘we recommend that he be imprisoned in the penitentiary for life.’ ” This instruction was affirmed by the supreme court of Georgia.

Again in the case of State v. Melvin, 11 La. An., 535, wherein a similar statute was involved, it appears that the instruction of the trial court went very, far in limiting the discretion of the jury, by suggestions that they should not exercise the pardoning power. For that reason the supreme court of Louisiana reversed the case, but held: “The qualification of the verdict in capital cases should be left where the law has left it, to the sound discretion of the jury, upon the facts of the case, guided by a sense of their solemn responsibility — which is to do their whole duty to the State as well as to the accused.”

The Louisiana case was cited by the United States supreme court in Winston v. United States, supra. In Cyrus v. State, 102 Ga., 616, the trial court, after saying to the jury that their discretion to recommend was not limited or circumscribed, added the following instruction: “If you think this is a case in which you would be justified in recommending a life imprisonment in the event of your finding the defendant guilty, you have a right to make such recommendation, as it is for you to say, in the event of your finding the defendant guilty, whether the facts and circumstances in this case warrant you in making such recommendation.” While the supreme court of Georgia criticized the words “justified” and “warrant” the instruction was nevertheless approved and the conviction affirmed. This case is also cited by Justice Gray' in Winston v. United States, supra.

Under a similar statute in People v. Bawden, 90 Cal., 195, the court instructed the jury, substantially, that if they found the defendant guilty of murder in the first degree, and also found some extenuating fact or circumstance, it was within their discretion to relieve him from the extreme penalty of death by fixing the punishment at imprisonment for life; but that if the evidence did not show such extenuating circumstance, then they should allow the death penalty to be imposed. It will be seen that this instruction confines the right of the jury to qualify their verdict to the one fact, that extenuating circumstances were or were not shown by the evidence. In that case the supreme court of California did say that if the question there presented were a new one it might hesitate to affirm the conviction. However, the instruction named was approved. That case was also referred to by Justice Gray in Winston v. United States, supra.

The foregoing cases are here cited chiefly because the plaintiff in error relies, for reversal, upon the case of Winston v. United States, supra. In that case there were three indictments for murder under consideration. There, an act of congress provided that in a case where the accused was found guilty of the crime of murder or rape the jury might qualify their verdict by adding thereto “without capital punishment,” and that whenever the jury should return such a verdict the person convicted should be sentenced to imprisonment at hard labor for life. An examination of the case will disclose that the convictions were reversed because the trial court limited the discretion to recommend the less extreme sentence to cases where the jury were of the opinion that there were palliating or mitigating circumstances. That this is true is disclosed by the opinion, which declares that “The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating 'or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment.”

The doubt existing in the minds of some judges commenting upon this case arises from the opinion of Justice Gray, wherein he suggests that “considerations of age, sex, ignorance, illness or intoxication, * * * or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever,” should be allowed weight in deciding the question whether they should recommend mercy. But, undoubtedly, when, he used the-words “explanatory facts may exist which have not been brought to light, or any other consideration whatever,” they applied to those considerations and explanatory facts which were not brought to light upon the trial; for the Justice had, in the preceding sentence, just expressed the opinion that the authority of the jury “extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment.” That this is the holding of the high federal court is shown by the fact that counsel for Strather, one of the defendants, requested the trial judge to give the following instruction: “In case the jury find the prisoner guilty of murder, they are instructed that they may qualify their verdict by the words ‘without capital punishment,’ no matter what the evidence may be.” The judge declined to give that instruction, and the disposition of the case clearly shows that the reversal was not made because of the refusal to give that instruction, but because the trial court limited the consideration of the jury merely to the fact whether such palliating or mitigating circumstances existed as would authorize them to impose the lesser punishment.

Without unnecessarily extending this opinion, we call attention to the following cases as authority for the principle that the discretion of the jury to recommend or withhold mercy is limited entirely to the evidence in the case:

In Valentine v. State, 77 Ga., 470, the court charged, “Then, if you convict him, it is for you to say whether the facts of the case, whether all the circumstances, warrant you in recommending him to the mercy of the court.” This is held not to be error.

The same principle is announced in the following cases: People v. Rogers, 163 Cal., 476; Vann v. State, 83 Ga., 44; State v. Bates, 87 S. C., 431, and State v. Bethune, 86 S. C., 143. In the latter case the charge of the court was (page 153): “When shall the jury recommend a party to mercy? The Legislature gave the right, and the Legislature did not limit the power; they said whenever the jury sees proper under all the circumstances of the case, if they see any mercy in the circumstances; if the circumstances of the case satisfy the jury that the elements in the case reduce it from that bold and awful murder which merits death, then the jury may recommend the party to mercy.”

Counsel for plaintiff in error have cited a number of authorities in support of their contention that the discretion of the jury is. not only unlimited and absolute, but that they may recommend mercy, if they see fit, without regard to the evidence in the case. It is sufficient to say here that the decisions they cite are governed largely by the trial court attempting to influence the jury in their consideration of the question whether mercy should be extended or not. They cite but one case which is exactly in point. The criminal court of appeals of Oklahoma did announce the following principle, as appears in the syllabus in Vickers v. United States, 1 Okla. Crim., 452: “It is the duty of the trial court to instruct the jury that if they shall find a verdict of guilty of rape they may qualify their verdict by the words, ‘without capital punishment/ no matter what the evidence may be.” This case does not disclose what instruction was given by the court, but, in a single sentence, merely announces the principle stated, upon authority of Winston v. United States, supra, which does not support the principle stated in the Oklahoma syllabus.

However, one case reported by this court, that of State v. Ellis, 98 Ohio St., 21, demands some consideration. This case is relied upon by counsel for plaintiff in error, and has resulted in confusing some of our lower courts. The following principle is announced in the syllabus of that case: “Whether or not a recommendation of mercy shall be made upon finding an accused guilty of murder in the first degree is a matter vested fully and exclusively in the discretion of the jury.” There is no intimation in the syllabus, or in the opinion, nor could there be any, that this discretion should be exercised dehors the evidence. That question was not considered nor could it be, because the only thing under consideration there was the examination of the jury upon a voir dire. That case, therefore, is not an authority in point here.

It may be true, and some courts so hold, that the function of a court, in permitting the jury to make a recommendation respecting mercy, is best fulfilled by simply giving the terms of the statute to the jury and informing them that the making or withholding of the recommendation is a matter entirely within their discretion. In such case, of course, it would be presumed that the jury would fulfill their duty from a consideration of the case as presented to them as sworn jurors. But in arriving at a determination with reference to this recommendation they should be guided by the evidence, or lack of evidence, as the case may he, as disclosed upon the trial. It would be a travesty upon justice were the jury permitted to ignore the evidence and rest their conviction upon their conscientious scruples against imposing capital punishment, or take into consideration facts which may have come to their knowledge while they were not acting in their capacity as jurors. That was not the purpose of the law.

We hold, therefore, that the trial court did not commit error in charging the jury as it did.

Error is also claimed because the' trial court permitted the prosecuting attorney to argue against the recommendation of mercy. It is sufficient to say here that since we have decided that the recommendation of mercy is to be made in view of the evidence disclosed, counsel then have the right to argue either for or against mercy, according to the facts and circumstances developed on the trial. This is a case wherein the state’s counsel were permitted to argue against the recommendation of mercy. The syllabus in the case of Jackson v. State, 63 Tex. Crim., 351, is as follows: “It is legitimate for State’s counsel to insist upon the infliction of the death penalty, where the evidence justifies it, but he must confine himself to the record.”

In the case of Shelton v. State, ante, 376, the court declined to permit the defendant’s counsel to argue in favor of a recommendation of mercy. That case was reversed for the reasons appearing in the opinion.

All that it is necessary to say in this case is that if counsel for the defendant have authority to-argue to the jury in favor of the recommendation, counsel for the state have the same right to argue that this recommendation be withheld. These arguments, however, as in other cases, should be confined to the facts and circumstances disclosed or not disclosed -by the evidence.

Other errors were claimed in this record, but this court is of the opinion that there is no prejudicial error in view of the state of this record, and the judgments of the lower courts are, therefore, affirmed.

Judgments affirmed.

Marshall, C. J., Johnson, Hough and Matíhias, JJ., concur.

Robinson, J.,

dissenting. I regret the necessity of filing a dissenting opinion in any case, but I find myself so wholly out of accord with the doctrine pronounced in the majority opinion, and with the exercise by this court of a power not possessed by it, that I feel constrained to state my position.

I agree with the majority that in all other respects than the matter of a recommendation of mercy it is the function of the jury to try facts, and that the jury must have a reason for every conclusion they reach, and that that reason must be supported by a proven fact or reasonable inference to be drawn from such fact, or by a presumption which the law draws from some proven fact, and that in our system of jurisprudence each such conclusion is reviewable and if upon such review it is found not to be supported by facts, inferences or presumptions, such conclusion and verdict are set aside and held for naught.

It would have been entirely within the power of the legislature in the enactment of the mercy clause to Section 12400, General Code, to have provided that the jury after having found the accused guilty of murder in the first degree might, “if the circumstances of the case justified it,” recommend mercy, in which event the jury would be required to find the existence or non-existence of the necessary facts in support of their conclusion, and have a reason for their conclusion to recommend mercy, and such reason woúld be based upon the facts and circumstances of the case as disclosed by the evidence; and such recommendation would be reviewable, and if found not to be supported, could and would be set aside by a reviewing court. But the legislature in the exercise of its power did not see fit to name as a prerequisite to the right of the jury to recommend mercy that the jury should find any facts or conditions to exist before making such recommendation. In other words, the jury are not required to find or have a reason for their conclusion to recommend mercy, but by the provision of the act itself there is extended to the jury the privilege and the power, absolute and unconditional, of relieving the accused of the payment of the extreme penalty, a power analogous to the commuting power of the governor.

The legislature having seen fit to impose no restriction upon the power thus vested in the jury, the imposing of such restriction by the court is a clear invasion of the realm of the legislature and a clear assumption of power by the court not conferred upon it by the constitution.

It was not the purpose of the legislature in defining murder in the first degree, and providing for a recommendation of mercy, to thereby make sub-degrees of that crime. Had it been so, it would have defined the elements necessary to constitute the different subdegrees. But it contented itself with defining that “Whoever, purposely, and * * * of deliberate and premeditated malice, * * * kills another is guilty of murder in the first degree and shall be punished by death,” and, then, without qualification, added the words “unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.” Had the legislature intended to confine the power to recommend mercy to any particular kind or variety of murder in the first degree, of to any particular kind or variety of persons convicted of that degree of crime, it could and would have named the kind, variety, circumstances and conditions under which it was to be exercised.

It cannot be gainsaid that this power may be exercised by the jury not alone in cases where the murder is attended with extenuating and mitigating circumstances, but also in case of the most heinous murder, and that no court has the power to review or set aside such recommendation.

With the wisdom of vesting this wide, absolute and uncontrollable discretion in the jury we have no concern. It might, however, throw some light upon the purpose which actuated the legislature in the enactment of this provision to recall that at the time it became a part of the statutory law of Ohio there was some sentiment and an extensive and widespread agitation for the abolition of the capital penalty, and this provision was a result, in part at least, of such agitation, and obviously was a compromise between the contending views.

The decisions of the courts of last resort in other states are not in accord, but it is asserted by the majority opinion that the greater weight of authority supports that opinion. I am unable to so conclude. The judge delivering the opinion relies largely upon the cases of Winston v. United States, Strather v. United States, and Smith v. United States, 172 U. S., 303. The opinion in those cases, reported as one, which declares the law in so far as- it has been declared by the supreme court of the United States, in my opinion does not warrant the conclusion arrived at by the majority, and for that reason, and for the further reason that it ought to control in this court, I quote extensively from the opinion.

In those cases the.court considered the decisions of the supreme courts of Utah, Louisiana, Georgia, Mississippi and California, touching the question of the recommendation of the jury where the penalty was decreased by such recommendation, and in summing up its conclusion as to those decisions used the following language, at page 312:

“The difficulty of laying down exact and satisfactory definitions of degrees in the crime of murder, applicable to all possible circumstances, has led other legislatures to prefer the more- simple and flexible rule of conferring upon the jury, in every case of murder, the right of deciding whether it shall be punished by death or by imprisonment. This method has been followed by Congress in the act of 1897.
“The act of Congress confers this right upon the jury in broad and unlimited terms, by enacting that ‘in all cases in which the accused is found guilty of the crime of murder/ ‘the jury may qualify their verdict by adding thereto “without capital punishment,” ’ and that ‘whenever the jury shall return a verdict qualified as aforesaid’ the sentence shall be to imprisonment at hard labor for life.
“The right to qualify a verdict of guilty, by adding the words ‘without capital punishment,’ is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone.”

It is true in the above the court uses the expression “upon a view of the whole evidence,” but when you contrast that expression with the expression, “The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury” and with the expression, “How far considerations of age, sex, ignorance, illness or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight * * is committed by the act of Congress to the sound discretion of the jury, and of the jury alone,” it seems to me indisputable that the words “upon a view of the whole evidence” were used by that court inadvertently, or if not inadvertently at least inaccurately, for “sympathy or clemency,” or “the irrevocableness of an executed sentence of death,” or an “apprehension that explanatory facts may exist which have not been brought to light,” or “any other consideration whatever,” are facts and conditions which could not be established by proof, and therefore, would not and could not appear “upon a view of the whole evidence.” A fair consideration of the final conclusion and judgment to which that court in those cases came, notwithstanding the inapt expression referred to, was that the jury may in such case at their discretion, with or without reason, recommend mercy, and since it was the intention of the legislature to vest in them such an absolute discretion, it is the duty of a trial court to so instruct.

It cannot be seriously contended that there is any distinction in the effect of the language of the Federal statute and the effect of the language of the Ohio statute.

Reading that case as a whole, relying upon the conclusion by that court reached, and not allowing the seven words “upon a view of the whole evidence,” which manifestly were used by the court inadvertently, to control and destroy everything else in the entire opinion, including the conclusion and judgment reached, for be it remembered that the judgment of conviction was reversed in all three cases, I am forced to the conclusion that that court, had it the power to review this case, would, upon the strength of that case, render a judgment of reversal.

Because sound reasoning does not support the judgment of the majority; and because the judgment of the majority sanctions the invasion by the court of the province of the legislature by adding to the absolute and unqualified power vested in the jury limitations and restrictions which the legislature did not prescribe, and which there is no ground for holding it intended to prescribe by implication; and because it authorizes the court to take away from the jury in part a power lawfully vested in them by the legislature, I dissent from the judgment, and the declaration of the law, as pronounced by the majority in this case.

Wanamaker, J., concurs in the dissenting opinion.  