Lorain Circuit Court.

down this building on the 10th day of the same mont. His moaca for a new trial was overruled and a bill of exceptions taken emoodying all the evidence and proceedings.

It is now claimed that this judgmant of convictton should be reversed for errors assigned upon the record.

1. Objection was made to the introduction of any evidence on the part of the state upon the ground that the indictment did not charge an offense. That there was a fatal misnomer or mis-description as to the ownership of the property. That there was and could be no such bocy corporate as "The Board of Education of Amherst Township," but that the only legal designation of that body was "The Board of Educa tion of the township district of Amherst.

What merit, if any, there might be in this contention, in the absence of any statutory direction, it is unnecessary to inquire. The statute of this state, section 7216, makes such defect unimportant, unless the court before which the trial is had, finds that such variance is material to the merits of the case, or may be prejudicial to the defendant.”

The trial court did not find such variance material or that the defendant might be prejudiced thereby.

We are of opinion that the ruling of the court in this regard was

correct.

2. The state was permitted to put in evidence the fact that ce tain tin cans, which had the smell of coal oil about them, and which had been used presumably in starting the fire ca the night of the 6th of October, were found in and about the building on the morning of October 7th.

It was and is contended that this was incompetent, inasmuch as the state had not shown and did not propose to show that the prisoner owned the cans or ever had any connection with them.

After all of the evidence was submitted, the court was requested to instruct the jury to disregard this evidence, unless they first found that the defendant was in some way connected with the ownership or possession of these cans.

We think there was no error in the admission of this evidence or in the refusal of the request.

The burden rested upon the state to prove that this fire was of incendiary origin; that this building was set on £re intentionally with the malicious purpose to destroy it; and in our opinion this evidence was proper and persuasive in the determination of that question.

3. Evidence was given by the state that the accused made certain declarations to the sheriff tending to show that he entertained hostile feelings towards the prosecuting attorney.

The indictment in this case was found at the May term, 1896, and these declarations were made during the preceding February term.

The

Prior thereto there were rumors afloat imputing to the accused the destruction of this building, and he had employed a detective from Cleveland to assist him in ascertaining who had put such rumors in circulation, with the view of prosecuting civil actions for slander. detective obtained statements and affidavits from various parties, and visited the prosecuting attorney and by false pretenses obtained from nis office some tin cans and other articles which had been left there by persons who suspected the accused of this crime.

At the February term 1896, the conduct of the detective was investigated before the grand jury, and a subpoena duces tecum was served upon

Gawn v. The State of Ohio.

the accused, requiring him to attend as a witness and bring with him the said articles obtained by the detective, as well as the statements and affidavits taken by him. It was during these proceedings before the grand jury, or soon thereafter, and in relation thereto that the declarations were made.

The sheriff testified to two conversations. The material part of the first, which was excepted to, is as follows:

Q. "What did he say at the time, if anything, about the prosecuting attorney?" Objected to by defendant.

The court: "If it has reference to this case now on trial he may state it; if it has reference to some other matter I do not think it is competent."

Mr. Thomas: "It has reference to this matter."

A. "Is it necessary to use the language?" 2. "Yes, sir." Exception by defendant. A. "Must I use the exact language" Q. "Yes, sir." A. "He said, 'If the son of a bitch of a prosecutor does not keep his hands off from me, I will land him in the penitentiary.'"

The material part of the second conversation excepted to is as follows: 2. "I will ask you where that conversation was?" A "On the other side of this room." Q. "What did he say at that time?" jected to by defendant.

Ob

The court: "If it is in the line I have indicated he may answer."
Mr. Thomas: "It is." Exception by defendant.

A. "I do not think I can recollect the entire conversation. It was in relation to the arrest that had been made of a party in Cleveland. Without trying to use his exact words, because I do not recollect them exactly, the turn of the conversation was, that the prosecutor and the sheriff had used unfair methods toward him in securing his witnesses, they had tampered with him, and in some other conversation, that the prosecutor would find himself in a tight fix before he got through with this if he did not look out."

The motion of the defendant to exclude this answer was overruled and exception taken.

case.

This evidence was made to play a somewhat important part in the In his address to the jury the prosecuting attorney assumed that the accused was attempting, by these alleged threats, to intimidate the public prosecutcr and thereby prevent a prosecution of this cas. The jury were toid that the prosecuting attorney had fearlessly discharged his public duties in this matter, and would continue to do so regardless of personal consequences.

It is important to determine the precise ground upon which the admissibility of this class of evidence can be placed.

The only ground as we believe upon which it can stand is that the declarations were of such a character and made under such circumstances, as to indicate a consciousness of guilt in the mind of the accused, as a the charge under investigation. If a person suspected of crime undertakes to obstruct a full investigation as to his guilt by the destruction ɔ evidence, or attempts by intimidation to deter the public prosecutor from doing his full duty in the matter, the inference naturally arises that such conduct is to be attributed to a consciousness of guilt.

When we look to the circumstances under which these declarations were made we find that no prosecution was her peading and that the accused did not then anticipate that he was to be proserated; but, on the contrary, was making vigorous and perhaps unfortunate eforts to hunt

Lorain Circuit Court.

down the rumors against him with a view of having a public investigation as to their truth or falsity.

It does not appear that the prosecuting attorney had theretofore taken any active interest against the accused; but it does appear that he had, just prior to the making of these alleged threats, been attempting to procure an indictment against the detective, and for that purpose had caused the accused to bring before the grand jury the articles and documents procured by the detective.

It would seem to be reasonably certain from these circumstances as well as from the testimony of the sheriff, that the hostility expressed by the accused towards the prosecuting attorney, arose solely out of this attempt to indict the detective and the means used to accomplish that purpose; and that the accused did not contemplate by these alleged threats any obstruction of a prosecution against himself.

We are, therefore, of opinion that the evidence did not tend to show consciousness of guilt and was incompetent, and its admission prejudicial

error.

4. Exception is also taken to the charge of the court upon the question of alibi. The charge is as follows:

"Now, gentlemen of the jury, the defendant in this case, besides denying all the allegations of the indictment herein, says that even though you find from the evidence that a crime was committed as charged in the indictment, that he did not commit it."

"The defendant, besides denying the commission of the offense, says that at the time the building is alleged to have been set on fire he was at another and different place.'

"This defense in law is termed an alibi. I will now explain to you what is meant by an alibi, and instruct you upon the law in relation to the same."

"Alibi is a Latin word, signifying elsewhere, and in law means a defense interposed by the defendant by which he seeks to prove that at the time of the commission of the offense he was at some other place than where it was committed."

"It is obviously essential to the satisfactory proof of an alibi that it cover the whole of the time of the transaction in question, or so much thereof as to render it impossible that the defendant could have committed the act."

"An alibi is a legitimate and proper defense to make, and if satisfactorily made, is conclusive."

"It would be proper for you to consider in determining this case whether the parties who have testified to seeing the defendant in his office on the night of October 10, 1895, have fixed such a time as to preclude all possibility or probability of the defendant being at the place of the alleged burning of the building."

This charge is, in our opinion, misleading and erroneous. It is not in conformity with the decision of the supreme court in Walters v. The State, 39 O. S., 215. In that case the trial judge charged the jury, in substance, that the defendant had interposed the defense of alibi, but was not required to establish the same by proof beyond reasonable doubt, but only by a preponderance of the evidence, to entitle him to an acquittal.

Okey, Judge, in reviewing this charge, at page 217, says: "We hold this charge to be erroneous. It is, in effect, that evidence tending to show such alibi is not to be considered in favor of the defendant unless it outweighs all of the evidence in opposition to it. We think it was the

Gawn v. The State of Ohio.

duty of the trial judge to have said to the jury that they must consider all of the evidence in the case, including that relating to the alibi, and determine from the whole evidence whether it was shown beyond reasonable doubt that the defendant had committed the crime with which he was charged. The burden of proof was not changed when the defendant undertook to prove an alibi, and it, by reason of the evidence in relation to such alibi, the jury shouid doubt the defendant's guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi was fully proved."

In like manner and with greater clearness, the instructions in this case put upon the accused the burden of proving the alibi, and interen tially, at least, deprived him of all benefit arising from such proof unless this alleged defense was fuly and incontestably established.

The jury is instructed that the defendant interposes this defense and seeks thereby to prove that he was at some other place than the place of the crime at the time it was committed; that it is a proper defense to make and when satisfactorily made is conclusive; and that it is essential, to the satisfactory proof of such defense, that it cover the whole time of the transaction in question, or so much thereof, as to render it impossible that the defendant could have committed the act.

The court proceeded to make more specific application of the same rule when he charged the jury, to consider whether the parties who testified to seeing the defendant in his office on the night of October 10, 1895, fixed such a time as to preclude all possibility or probability of the defendant being at the place of the crime at the time it was committed.

These instructions gave the accused the benefit of such defense when it was proved satisfactorily or conclusively; and left the jury to infer that when it was not so proved the defense failed, and that the evidence tending to establish it was to be disregarded.

The theory of the State was that the accused set these fires with his own hand; no other suggestion is found in the record. It was, therefore, necessary for the state to prove, as part of its case, that the defendant was at the building at the times it was fired.

His whereabouts was not a matter of defense, and any proof of the accused that he was elsewhere at the time was competent and appropriate to weaken or destroy the force of the proof, which the State was bound to bring orward to sustain its case.

The defendant, in a criminal cause, is not required to prove his innocence; but would be so required if, as in this case, when the main issue in dispute was whether he was present at the crime, he was compelled to maintain that he was not, and by proof so conclusive as to render his presence improbable and impossible.

Though it may be said, with fair show of reason, that when the whole charge is considered,it did not necessarily deprive the defendant of the benefit of any doubt which might be produced by his evidence cín anti yet we are unable to rid oar minas of the con iction that its tendency and effect wer decidedly in that direction.

3. The misconduct of the jury is also assigned as error. The affidants presented by the defendant in support of his motion for a new trie show that the juror, Cooley, discussed the merits of the cas pretty reely during the progress of the trial. That he stated, among other angs, to one affiant, net the State was making a strong case, and to another, that ine State had made a strong case, and that the defendent was making a strong case. Had these facts been admitted a new trial

Lorain Circuit Court.

must necessarily have been granted, but the juror not only denied this by his affidavit, but other affidavits were presented by the State tending to corroborate the denial or the juror.

The only doubt about the question grows out of the admission of the juror himself in his affidavit, that he only said, "that the State was trying the case very close and the defendant was trying it very close." This comes very close to being an expression of "an opinion upon the subject of the trial"; but, in consideration of this conflict of evidence, and the impartial character of the admitted statement of the juror, we are unable to say that the motion for a new trial on this ground was improperly overruled.

6. Again, it is claimed that there was misconduct on the part of the prosecuting attorney and his assistant "by which the defendant was prevented from having a fair trial."

In support of the motion for a new trial on this ground, the affidavit of a stenographer is presented, setting out and verifying what is claimed. to be a verbatim report of a large portion of the address of the prosecuting attorney to the jury. It appears from this report that the prosecuting attorney bore testimony against the defendant most vigorously; that he repeatedly addressed his remarks to the prisoner and denounced him in no uncertain terms, saying to him, "you are a thief, you set fire to that building, you are a guilty man." That in conclusion he said to the jury: "Gentlemen, I nave never known a clearer case of circumstantial evidence, and if this man were a tramp it would be sufficient to hang him. It is as clear a case of ci.cumstances as you will ever find if you sit upon the jury from now 'till the crack of doom."

Affidavits were also presented showing that the attorney assisting in the prosecution, closed his address with substantially this statement "Gentlemen I want to say to you i. you let this man go acquit, then he will proceed to extract blood money from these witnesses and carry on these suits."

It was in evidence that suits for slander were then pending or in contemplation against some of the witnesses for the State.

If we were to dispose of this matter upon the proof made by the defendant and that only, we should be disposed to hold hat such conduct on the part of the prosecuting officers was prejudicial error. That its natural if not necessary effect, was to excite passion and prejudice and lead to a decision influenced by the prejudice so created, rather than one arrived at solely upon a careful and unbiased consideration of the real facts in evidence.

Many of these remarks were not objected to when made nor was the court asked to take any action in relation to them. This, we believe, is not always essential. When improper remarks are made to the jury, and it is apparent that an objection thereto would afford no redress, but cnly aggravate their injurious effect, the absence of objection at the time, under such circumstances, ought not to preclude their consideration upon a notion for a new trial.

Counsel for the state contend, however, that the affidavits offered by them tend to disprove their alleged misconduct.

The prosecuting attorney in his affidavit says that the remarks at tributed to him were materially qualified and modified in that portion of his address no reported by the stenographer, while his assistant in his affidavi motes at hnical denial of having used subsantrally the language mputed to him.