
    Miller v. The State of Ohio.
    
      Proceedings in error — Limitations—Section 6723, Revised Statutes — Proceedings to reverse, vacate or modify to commence within four months — Does not apply to criminal cases, when —Comment of attorney during absence of judge cause for reversal of judgment, when.
    
    1. Section 6723, Revised Statutes, -which fixes a limitation of four months for the commencement of proceedings to reverse, vacate or modify a judgment or final order, does not govern the time within which proceedings may be commenced to reverse a sentence and judgment in a criminal case, and there being no provision of statute fixing such limitation, a motion on the part of the accused presented to this court for leave to file a petition in error twenty-two months after the rendition of the judgment complained of, will not be refused ■on the ground that it is not filed in time.
    2. The judge of the court of common pleas is an essential part of the court, and his presence during the trial is necessary to its proper conduct. He should be at all times within sight and hearing of the proceedings, so that he will retain control of all that transpires during the trial and can instantly exert his authority when it is. required. This rule applies especially to the trial of a criminal case.
    3. Where it is shown that a judge during a trial of one accused of murder is so far absent, and for such length of time, as to prevent his control of the conduct of the trial while the prosecuting attorney is making the last argument to the jury, and during such absence that officer, in the hearing of the jury, comments upon matters not in evidence and extraneous to the case, which are calculated to work serious prejudice to the defendant, and accuses the defendant’s counsel of conduct apart from the proceedings of the trial of a highly unprofessional or criminal character, such prejudice will be presumed as to require a reversal of the judgment.
    (Decided January 16, 1906.)
    Motion for leave to file petition in error to tlie Circuit Court of Wyandot county.
    At tlie April term, 1901, of tlie common pleas of Wyandot, Willis Miller was convicted of murder in the second degree. Sentence followed, which upon error to the circuit court was at its January term, 1904, affirmed. The principal grounds urged for the motion, and for a reversal of the judgment below are the absence of the trial judge from the court room during a portion of the closing argument for the state and the misconduct of the prosecuting attorney during that absence.
    From the bill of exceptions it appears that during the absence of the judge certain proceedings were had, which are indicated by the extract which follows:
    
      “ And thereupon argument to the jury proceeded; and during the closing argument for the state, Mr. Meek, the prosecuting attorney, among other things, said: ‘We have had the judgment of seventy-five men supporting the state.’ ”
    By Clayton: “We object and except to that remark. ’ ’
    By Meok : “ I do not mean in this Willis Miller case, gentlemen of the jury; I do not mean it that way. ’ ’
    (The presiding judge left the court room and did not return during the remainder of the argument.)
    By Meck : ‘ ‘ Gentlemen of the jury, Mr. Burket says I acted dishonestly in this matter.”
    Burket: “I object and take exceptions to that remark of the prosecuting attorney. I said he acted ungentlemanly and unprofessionally. ”
    Meck: “No, sir, I have your very remark, and I took it down. He said, gentlemen, I acted dishonestly. That’s what you said Burket and you are taking exceptions to your own remarks. I say, you said to this jury, that I acted dishonestly. Now, do you want to take it hack?”
    Burket : “I don’t believe I said it. ’’
    .Meck: “Well, I thought, gentlemen, the gentle-
    men talking to'you yesterday would not believe their own statements, if they saw them in print. Well,, it’s a good thing for Mr. Burket, to withdraw his remark, because I was just about to pay my compliments to Burket; and if he withdraws that remark I will not stick the knife as deep in him as I would otherwise have stuck it. Burket was a stranger, hut I want to tell you that I have learned that he is a very clever ‘Alibi Fixer/ ”
    
    Burket: “I object and take exceptions to that statement.”
    Meck: “I say to you, gentlemen, that somebody fixes these alibis. I am finding alibis, alibis, alibis, 
      since the twenty-eighth day of last April, when we began these trials; and I expect to meet an alibi as much as I expect to meet a jury. Alibis! They have a manufacturing establishment over there in Find-lay where they have alibis made to suit the occasion and I understand that Charles O. Burket was the foreman of it.”
    Burket: “I object and take exceptions to that improper statement to the jury.”
    Meck: “Yes, gentlemen, I presume they would take exceptions, but the alibis are ready; as soon as some one gets in trouble in Findlay they have an ali-bi. It puts me in mind of the story told of the negro that was convicted, who told the court, ‘Why, judge, I ought to have a new trial because I have two more alibis,’ and we have the same condition, for alibis are just as plenty over in Findlay. In fact, do you suppose I would not be surprised if I came in this case and found they had.no alibi? •’Why don’t they introduce some other defense at least in connection with the alibi? I am tired of this thing of having to meet bogus alibis, and I have had to fight alibis and alibis, case after case, and it makes a man weary, gentlemen. There are other defenses, and one is insanity, that they might set up, but they don’t claim to be insane, and I believe they represent one of the smartest of criminals. Why don’t you put up the defense of good character?”
    Clayton: “We object and except.”
    Meck: “Of course a man is presumed to have a good character unless the contrary is shown, but in a criminal case a man has a right to produce evidence of good character by his neighbors and friends to show that he is a man not liable to commit a crime. ’ ’
    
      Clayton : “We except. ’ ’
    Meck: “I would like to have a man put up a defense of that character. You must not forget that I am fighting for the fifth time for the state and never meeting any other defense hut an alibi is getting monotonous.”
    Clayton: “We except to this.”
    Meck : “And they have put up an alibi, and it is what we call, in the language of Gassy Hunt, ‘A Findlay alibi!’ ”
    
    Clayton: “We except.”
    Meck: “Yes, you gentlemen would take exceptions to my living, I guess. Now, as to Cora Landis. Why, she would testify to anything that Burket and the rest of them would ask her to.”
    Burket: “I except.”
    Meck: “Yes, and Bert Foster and Burket evidently worked up the alibi. They were over there together.1 ’
    Burket: “Note our exceptions.”
    Meck: “Yes, I would take exceptions, and I do take exceptions to your fixing up alibis. Those are my exceptions.”
    Burket : “Mrs. Ellis testified she never talked to me in her life.”
    Meck : “I say Bert Foster went down and talked to her, and I say you and Bert Foster together fixed up the alibi, and you know Bert Foster testified that you were at their house and he then talked to Lucy Ellis, and you then fixed up that alibi.”
    
    Burket: “Note our exceptions to these remarks. ’ ’
    Meck: “I did put Mrs. Landis upon the witness stand for the state, hut I took all precautions to support her and notwithstanding that support I had for her I knew how the jury threw her testimony to the winds. It was not necessary for us to have her testimony to get a conviction in the other cases. I say how strong the Charley Foster case was! How strong the George Ury case was, and it was not necessary that we would use Mrs. Landis in order to' convict them.”
    ' Clayton: “Note our exceptions.”
    Meck: “Yes, hoys, take your exceptions. Gentlemen, they hate to have the pot uncovered and let you see what they have.”
    Meck : ‘ ‘ They have gone to the expense of getting here Charley Foster and George Ury, and they have them over here in the jail in calling distance, and they have put the county to the expense of getting them here and they do not call them. ’ ’
    Clayton : ‘ ‘ Note exceptions. ’ ’
    Meck: “Note all the exceptions you please. DO' you say it is not true?”
    Clayton: “We say there is no evidence to that effect and you have no right to make these remarks. ’ ’’ Meck : ‘ ‘ Guard Lime said he was here with them, didn’t he? I want to know why you put the county to the expense of getting Charles Foster and George’ Ury here and did not put them on the witness stand?' They dared not, gentlemen, the only inference natural to be drawn from that is they couldn’t do them any good. You have subpoenaed Marsh Lindsay and you have Mrs. George Ury subpoenaed — who else have you not got subpoenaed? Why don’t you put-them on the witness stand? Why, gentlemen, the only natural presumption or inference that, you can draw from it is that they cannot do them any good.”
    
      Meok : “I have heard it claimed, gentlemen, that George Ury was not there. Why don’t you show the jury that George Ury was not at the Johnson home? I will tell you why you want to show it to show that Mrs. Johnson and her son Albro made a mistake, but you cannot do it. Why don’t you show Charley Foster was not there? If you show Charley Foster was not there you show this jury that Mrs. Johnson and her son had made a mistake, but you can not do it. Why not show that Lock Foster was not there and Marsh Lindsay was not there? You cannot do it. Why don’t you show the rig was not out?”
    Clayton: “Note our exceptions.”
    Meck: “You have tried to berate Mrs. Johnson and her children in every way possible. You have misrepresented her; in fact, you have lied about her, and you cannot show where she made a single mistake in these five trials — ”
    Clayton: “We except.”
    Meck: “You must, concede by the fact that you don’t try to prove the whereabouts of Charley Foster, Lock Foster, Marsh Lindsay, and George Ury, you must virtually concede that Mrs. Johnson was right in four out of five trials. You must concede it and you do concede it. That’s a fact — ”
    Clayton : “We except.’’
    Meck: “And, gentlemen, what Dickson says is not denied. You have a right to consider that what he said has not been denied.”
    Clayton: “It is denied by the defendant’s plea of not guilty.”
    Meck : “It is not denied by the plea of not guilty. I say the defendant has plead not guilty and that’s all lie did. I say there has not any witness appeared before the jury and says what Charles Dickson testified to is not true.”
    Clayton : “We except to this. ”
    Mece: “I asked Sheriff Cliffe if he had told Dickson what to state and they objected, objected. I don’t know whether Willis Miller told him what he testified to or not, but I do say it is not denied by anybody. ’ ’
    Clayton : “ Note our exceptions. ’ ’
    At the conclusion of Mr. Meclc’s remarks:
    Clayton: “If the court pleases, during your absence from the court room or the bench, almost all the time the prosecuting attorney has been arguing to the jury the case, he has made many remarks exceedingly prejudicial to the defendant for which we have had no opportunity to make our objections and exceptions to the court, although we excepted, and now we wish the record to show that we call your attention to and protest against these improper and prejudicial remarks.”
    The Court : ‘ ‘ The court will now give the jury a ten minutes recess and you may put such things as you excepted to in writing and the court will instruct the jury full upon those matters.”
    And thereupon a recess of ten minutes was had, after which:
    Clayton: “We have not been able, your honor, to reduce the matters to which we excepted to writing, but we except, however, to the many prejudicial remarks and improper conduct of the prosecuting attorney in his closing address to the jury and we also except to the fact that the presiding judge was absent from the room during the time of his address or the greater portion of it, during the utterance of those remarks, which prevented us from making our objections at the time to the court.”
    The Court: “We will proceed with the case. ’’
    
      Messrs. Young ds Wanamaker, for plaintiff in error,
    cited and commented upon the following authorities:
    
      Meredith v. People, 84 Ill., 479; Thompson v. People, 144 Ill., 378; Smith v. Sherwood, 95 Wis., 558; 70 N. W. Rep., 682; 21 Ency. of Pl. & Prac., 978; People v. Tupper, 122 Cal., 424; People v. Blackman, 127 Cal., 248; O’Brien v. People, 17 Colo., 561; Palin v. State, 38 Neb., 867; Graves v. People, 18 Colo., 170; Bateson v. State, Tex. Crim. App., 80; State v. Smith, 47 Conn., 383; Slaughter v. United States, 82 S. W. Rep., 732; 1 Thompson on Trials, secs. 212, 955, 963; Stode v. Beuerman, 59 Kan., 586; Stokes v. State, 71 Ark., 112; Ellerbee v. State, 75 Miss., 522; Home v. Rogers, 110 Ga., 362; O’Shields v. State, 81 Ga., 301; Pritchett v. State, 92 Ga., 65; State v. Carnagy, 106 Ia., 483; Carney v. State, 85 S. W. Rep., 7; Hayes v. Smith, 62 Ohio St., 161; Railroad Co. v. Pritschau, 69 Ohio St., 446; Sasse v. State, 68 Wis., 530; Brotvn v. Swineford, 44 Wis., 282; Magoon v. Railway Co., 67 Vt., 177; Sullivan v. Deiter, 86 Mich., 404; Bremmer v. Railway Co., 61 Wis., 114; Tucker v. Henniker, 41 N. H., 317; State v. Smith, 75 N. C., 306; Ferguson v. State, 49 Ind., 33; State v. Hannett, 54 Vt., 83; Bullard v. Railway Co., 64 N. H, 27; Perkins v. Burley, 64 N. H., 524; Coble v. Coble, 79 N. C., 589; Proctor v. DeCamp, 83 Ind., 559; Batteshill v. Humphrey, 64 Mich., 514; Rickabus v. Gott, 51 Mich., 227; Bond v. Railroad Co., 62 Mich., 643; People v. Hare, 57 Mich., 505; State v. Clouser, 69 Ia., 313; Davis v. Hill, 75 N. C., 224; Rudolph v. Land Werlen, 92 Ind., 34; Evans v. Trenton, 112 Mo., 390.
    
      Mr. Benjamin Meek and Mr. George Goodrich, for defendant in error.
    Mr. Meek cited previous brief by himself in Lindsey v. State, 69 Ohio St., 215, and sections 6723 and 7352, Revised Statutes.
   Spear, J.

The case on its merits is submitted on the motion. A preliminary question is presented which is that the motion should be denied because not commenced within the time prescribed by the statute, section 6723, Revised Statutes. That section is:

“No proceedings to reverse, vacate or modify a judgment or final order shall be commenced, unless within four months after the rendition of the judgment or the making of the final order complained of; or in case the person entitled to such proceedings is an infant, a person of unsound mind or imprisoned, within four months as aforesaid, exclusive of the time of such disability.”

It is to be observed that the section quoted is incorporated under the head of Title IV of Part 3rd of the Statutes, entitled Error, Mandamus and Quo Warranto. As these subjects come wholly within the province of actions and proceedings other than criminal, the chapter is not necessarily a guide to the rule which should obtain in criminal proceedings. Part 4th follows, which is entitled Penal, and embraces Crimes and Offenses, Criminal Procedure, Jails and the Penitentiary. Chapter 8 of Title II of this part includes sections 7336 to 7361, which make provision for cases in which error may be brought, and for the procedure thereunder. In all these provisions, applying as they do specially to criminal cases, no limit is placed on the filing of the petition in error. We are of opinion that it was not the intention of the general assembly to place a limit on such error proceedings, and, therefore, the objection of counsel is not well taken. This conclusion is supported by the holding in Blackburn v. The State, 22 Ohio St., 581, where the precise question was made, and it was there ruled that under the statutes as then existing the limit controlling civil actions and proceedings did not apply. We know of no change in the statutes in this particular since.

Coming to the grounds of error urged we find that two are serious. One relates to the conduct of the prosecuting attorney during his closing argument to the jury, and the other to the absence of the trial judge from the court room during a portion of that argument. The facts are fully set out in the statement, and it would needlessly encumber the record to repeat them here. It is apparent that the prosecuting attorney, in the course of his address to the jury, charged counsel for the prisoner with conduct in the highest degree unprofessional, if not indeed criminal, and made statements of alleged conduct of counsel extraneous to the inquiry before the jury, and not pretended to be supported by the evidence in the case on trial, and referred to other matters not in evidence, all which were in their nature calculated to work serious prejudice to the defendant. This was a distinct departure from the line of official duty. It is incumbent upon a prosecuting attorney to aid the administration of justice, and not to so conduct himself during a trial as to defeat the purpose of the law which accords to every person accused of crime a fair and impartial trial. And this is no less a duty where the prosecutor believes the offender guilty. The evident effect of this misconduct was in no wise removed or modified by any action of the court, if indeed it could have been, but was left to work inevitable mischief and prejudice in the minds of the jurors. That this error should have been corrected by granting the motion for a new trial needs no argument in its support. The general subject as to conduct of counsel is fully treated in Hayes v. Smith, 62 Ohio St., 161, and in C. P. Ry. Co. v. Pritschau, 69 Ohio St., 438, which decisions afford abundant authority for the conclusion above stated. Had the wholesome doctrine of those cases been heeded it is probable that ground for this error proceeding would not have arisen.

The absence of the trial judge from the court room during a portion of the argument referred to we regard also as error. It was stated by the present chief justice on another occasion that “the trial judge is not merely a part of the court, an important part of the court, the controlling part of the court, but he is an essential part of the court. While he is present the court is in session until adjournment; but his absence from the court room at any time disintegrates the court. * * * It would be reversible error if anything detrimental to the losing party should occur during such absence. He must be where he can instantly exert his authority where it is required.” We are of the opinion that this correctly states the law. It may be that this presence of the judge does not imply that he must be every moment absolutely within the court room, but, as held in a Texas case, he should be at least within sight and hearing of the proceedings so that he will retain control of all that transpires during the trial, and if it become necessary for him to be absent so that he cannot instantly exercise his control, he should suspend the proceeding until his return. To the same effect is a Connecticut case where it is held “that it is the duty of the presiding judge at criminal trials and especially where life is involved to be visibly present every moment of their actual progress, so that he can both see and hear all that is being done. This is a right decreed to the accused by the law of the land of which he cannot be deprived.” These conclusions are abundantly sustained by authorities other than those referred to, many of which will be found cited by the diligent counsel.

It is suggested that the judge was in an adjoining room preparing his charge to the jury. This fact, if it is such, cannot excuse the omission. It is manifest that the judge was too far away to have any oversight over the trial, for it is inconceivable that any self-respecting judge of the court of common pleas, had he ■ observed what was passing before the jury, could have failed to promptly and vigorously repress it.

Attention is called by counsel for the state to the fact that on the return of the judge to the court room he ordered a recess of ten minutes to enable counsel for the defendant to put their exceptions in writing so that he could pass upon them, which opportunity was not improved by counsel. We do not perceive that this can alter the case. Ten minutes would hardly suffice to acquaint the court with all the grounds of exception. But whether so or not the mischief had been done.

Attention is also called by counsel to tbe fact that tbe claim of misconduct is not supported by affi-. davits conformably to section 7352, Revised Statutes. This provisión is not exclusive of all other modes of proof.' It appears by the bill of exceptions that the trial judge ordered the official stenographer to furnish to defendant’s counsel a transcript of the proceedings as well as of the evidence, and the proceedings hereinbefore recited are incorporated as part of the bill of exceptions allowed and signed by the trial judge officially, and this we hold to be evidence of what actually occurred during the trial at least as of as high character as would, be the affidavits of witnesses.

This court has uniformly refused to set aside judgments of conviction except in cases- where the grounds of error were clear and the error manifestly prejudicial. The court is fully aware of the inconvenience and necessary expense incident to another trial of this case, but these considerations lose force where it appears that the accused has not had such a trial as the-constitution guarantees to Mm and which it is the duty of the trial court to accord.

The motion is sustained. The judgments below will be reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Reversed.

Davis, C. J., Shauck, Price, Crew and Summers, JJ., concur.  