
    Zimmerman v. The State of Ohio.
    (Decided May 23, 1932.)
    
      Mr. Cornell Schreiber and Mr. John W. Hachett, for plaintiff in error.
    
      Mr. Carl J. Christensen, prosecuting attorney, Mr. Ralph Emery and Mr. J oseph W. Lane, for defendant in error.
   Middleton, J.

This proceeding in error is prosecuted by Joseph Zimmerman, who was charged in the court of common pleas with presenting false vouchers to the officials of Lucas county for supplies for the county jail. There were five indictments returned against him in that court, each indictment charging the offense aforesaid, but each predicated upon a separate transaction. All of the five cases were consolidated and tried to a jury, which returned a verdict of guilty on all five charges.

The trial consumed more than two weeks, and the record is necessarily a long one. A fair analysis of the evidence makes it plain, we think, that the ultimate determination of the charges was dependent upon the weight to be given to the testimony of Zimmerman as against the testimony of several witnesses for the state, including some circumstantial facts in evidence reflecting upon Zimmerman’s transactions with the county. He denied, however, any criminal purpose or intent to dSfraud the county. His testimony and claim were that he had no guilty knowledge of the fraud charged against him. Manifestly this contention was one for the determination of the jury, and the trial court had no lawful power to deprive him of that right. It is his contention, however, that he was refused a fair trial; that the proceedings in the court of common pleas were not impartial, but were had in a manner prejudicial to his rights.

The right of trial by jury under the Constitution of this state (Article I, Section 10) is an inviolate right, and it is the settled law, in obedience to the mandates of the Constitution, that a jury shall have exclusive power to determine the facts in all criminal cases in which the charge involves the commission of an infamous crime punishable by imprisonment. It is required in this state that in all such cases the facts in evidence must be determined and decided by the jury. It necessarily follows from this requirement that any expression of the trial court, and particularly any positive statement by that court to the jury which indicates or even intimates to the jury what opinion the court holds on the facts in evidence, is erroneous. It is an invasion of the jurisdiction of the jury, and is in violation of the constitutional rights of the accused.

The contention made by Zimmerman is that he was deprived of an impartial trial by jury by reason of certain statements or instructions that the trial court gave to the jury after the case was submitted to it and while it was considering its verdict. The circumstances occurring at this time, as disclosed by the record, are that the jury had been considering the case for more than twenty-four hours, when, on the afternoon of March 21, 1932, it was brought into open court by order of the judge. The judge then inquired of each member of the jury in respect to his or her opinion as to the probability of the jury arriving at a verdict. In response to that inquiry there appeared to be a difference in the opinion of the members of the jury, whereupon the court addressed the jury as follows:

“It seems to me that the failure of this jury to agree upon verdicts in this case must be due to the fact that some of you are permitting yourselves to be influenced by matters extraneous to and outside of the evidence in the case. The trial of this case has been lengthy and a very expensive thing to this community and no member of this panel should refuse to join with his fellow jurors in a verdict on each of these indictments for any trivial or personal reason or consideration not arising from the evidence or the lack of evidence in the case. You have heard all the testimony and examined all the exhibits in the case, and under the instructions I have given you as to the law applicable herein you either are or are not convinced beyond a reasonable doubt of the truth of the charges made in these indictments. Whichever is the fact you should say so. You are all members of the regular jury panel of this court, and if you are unable to agree in this case after all the consideration of it you would be unable to agree in any case and your further- service as members of this panel would not only be useless but a waste of time and money to the litigants and the citizens of this community. I am now sending you out again for the further consideration of the case and I feel certain if you confine yourselves to the evidence and the law as I have given it to you you will have no difficulty in agreeing upon verdicts as to each of these indictments.”

It would be difficult to conceive of a more effective method of directing a verdict, except one by an imperative order, than was adopted by the court in the foregoing statement. In the beginning of his remarks the court not only indicated that he had an opinion on the evidence, but that the evidence admitted of but one conclusion, and then in no uncertain terms charged the jury with bad faith in that they must have permitted themselves in the consideration of the case to be influenced by matters outside of the evidence. These remarks left no room for any doubt as to what was in the mind of the court, and what in his opinion should be the verdict under the evidence. It may be that he felt the circumstances then surrounding the situation demanded this unusual and extraordinary method of admonishing the jury, but, if that were true, it did not and could not legalize that which was so plainly an effort to control the action of the jury, and which was a total disregard of the constitutional rights of the accused. There is nothing in the record that can remedy the vice of this instruction, and nothing in addition to what has been referred to is necessary to make it impossible for a reviewing court to affirm the judgment in this case. But, if by any possibility there should be any doubt as to what disposition should be made of the remarks we have discussed, that doubt is wholly dissipated by the further remarks of the court by which he gave the jury a choice between returning a verdict and a humiliating discharge from further service.

We have attempted to state in the beginning the law of this case. Counsel for the state and for the accused have supplied the court with many authorities reflecting on the legal questions involved here. We see no purpose to be accomplished by discussing the authorities in detail. We will, however, refer to one case which we regard as particularly applicable to the instant case, because it disposes of a situation substantially the same as we find here. The case we refer to is People v. Strzempkowski, 211 Mich., 266, 178 N. W., 771, 10 A. L. R., 420. The syllabus in the case as reported in 10 A. L. R. reads as follows:

“It is reversible error for the court to threaten to discharge the jury from service during the rest of the term, in case they fail to agree upon a verdict in the case then on trial.
‘ ‘ The court takes judicial notice that a discharge of a jury from further service during the term, for failure to agree on a verdict in a particular case, would cause humiliation to members of the panel.”

The particular language complained of in that case was the remark to the jury that “this case that you consider involves a very plain question of fact for you to determine. Now, if this jury is unable to determine such a case, I think it is the duty of the court to dismiss the jury, and call another jury, in trying the rest of these cases.”

In the notes to this opinion the editor of American Law Reports makes this observation:

“No other case has been found within the scope of this note, but the decision has the support of the authorities. The American law will not tolerate any threats to, or coercion of, the jury.”

The editor then quotes from the case of State v. Bybee, 17 Kan., 462, as follows:

“No juror should be induced to agree to a verdict by a fear that a failure to so agree would be regarded by the public as reflecting upon either his intelligence or his integrity. Personal considerations should never be permitted to influence his conclusions; and the thought of them should never be presented to him as a motive for action.”

It is contended by the state that, in an instruction requested by Zimmerman immediately following the foregoing instruction, the error in the former instruction, if there be an error, was cured. We are not inclined to accept the soundness of this claim in respect to what was then said by the court, but, if the later remarks of the court in any way lessened the sting of what preceded them, there was no withdrawal by the court of his previous instructions and no reference made to them, and they remained just as given to the jury. This situation effectively disposes of this contention.

There is nothing in the remaining claims of Zimmerman which would warrant any interference with the judgment, but for the remarks of the court to the jury, as herein set forth, the judgment is reversed, and the cause is remanded to the court of common pleas for further proceedings according to law.

Judgment reversed and cause remanded.

Mauck, P. J., and Blosser, J., concur.

Judges of the Fourth Appellate District, sitting by designation in the Sixth Appellate District.  