Levine, J.
Charles F. Kahoun, as principal, and Frank Mazanec, as aider and abetter, were convicted of fraudulently writing into the Republican poll book the names of seventy persons alleged not to have voted in ward 13, precinct R, in the primary election held August 14, 1928, in Cuyahoga county. Error proceedings are prosecuted to this court seeking a reversal of such judgment of conviction.
Various assignments of error are set forth in the brief of counsel for the accused, which are specified as follows:
(1) The indictment did not lay a crime under the statute.
(2) There was gross misconduct of the attorney general in the
voir dire
examination.
(3) There is no evidence whatsoever to sustain the conviction of Frank Mazanec.
(4) The conviction of Charles F. Kahoun is clearly against the weight of the evidence, and venue was not proved.
(5) There was error in the court’s failure to charge the jury forthwith after argument, in its refusal to give defendants’ special request to charge, and in the general charge as given..
(6) Competent testimony offered by defendants was excluded.
(7) Tbe court erred in its refusal to continue or pass tbe case because of impossibility to obtain an impartial jury, in its failure to sustain defendant’s objection to trial in the new courthouse, and because it sustained tbe state’s exception to incorporation in tbe bill of exceptions of affidavits of jurors at a previous trial.
(8) There was misconduct of tbe attorney general at tbe conclusion of tbe case. Summarizing these specifications of error, there are two major assignments: (1) Errors of law; (2) that tbe conviction of these plaintiffs in error is not sustained by tbe evidence.
We shall first take up tbe assignment as to error of law.
Does tbe indictment lay a crime under tbe statute? This question arises both by virtue of tbe demurrer to. tbe indictment and by the objection to tbe introduction of any evidence. Tbe statute under which tbe indictment was returned is Section 13350, General Code, as follows:
“Whoever, from the time ballots are cast or voted until tbe time has expired for using them as evidence in a contest of election, wilfully and with fraudulent intent, inscribes, writes or causes to be inscribed or written in or upon a poll-book, tally-sheet or list, lawfully made or kept at an election, or in or upon a book or paper purporting to be such, or upon an election return, or upon a book or paper containing such return, tbe name of a person not entitled to vote at such election or not voting thereat, or a fictitious name, or, within such time, wrong
fully changes, alters, erases or tampers with a name, word or figure contained in such poll-book, tally-sheet, list-book or paper, or falsifies, marks or writes thereon with intent to defeat, hinder or prevent a fair expression of the will of the people at such election, shall be imprisoned in the penitentiary not less than one year nor more than three years.”
The pertinent portion of the indictment is:
“That on the fourteenth day of August, 1928, in the City of Cleveland, in the County of Cuyahoga aforesaid, a
primary election
was duly held, as authorized by the laws of the State of Ohio, and on said fourteenth day of August, 1928, after ballots had been cast and voted at said election,
Charles F. Kahoun
unlawfully, wilfully and with fraudulent intent, did write in and upon a poll-book, lawfully made and kept at an election, to-wit, the poll book of Precinct R>, Ward thirteen, in said city of Cleveland aforesaid, at such Primary Election aforesaid, the names of seventy (70) persons more or less, not voting thereat, with intent to defeat, hinder or prevent a fair expression of the will of the people at such election, contrary to the statute in such case made and provided and against the peace and dignity of the State of Ohio.” '
Prank Mazanee is charged with aiding and abetting Charles P. Kahoun in the commission of the crime set forth in the indictment. It is claimed by counsel for the accused that by the language of the statute time is made as of the essence of the crime; that the act must have been committed “from the time ballots are cast or voted, until the time has expired for using them as evidence in a contest of election.” It is therefore claimed that the indict
ment is fatally defective for failure to allege the commission of the crime within said time, citing Section 13581, General Code, which reads, in part:
“An indictment shall not be invalid, and the trial, judgment or other proceedings stayed, arrested or affected * * * for omitting to state the time at which the offense was committed, in a case in which time is not of the essence of the offense; * *
Also citing
Ellars
v.
State, 25
Ohio St., 385, 388:
“It is a well-settled rule of criminal pleading, that an
indictment must aver, with reasonable certainty, all the material facts which are necessary to be proven, to procure a conviction. ’ ’
The indictment in the present case charged that the crime was committed on August 14, 1928, and it is contended that this allegation is not a compliance with the requirement of the statute that time is a part of the definition of the crime of fraudulent writing on poll books or tally-sheets. The statute reads as follows: “Whoever, from the time ballots are east or voted until the time has expired for using them as evidence in a contest of election, * * Counsel for the accused contend that Section 13350, General Code, upon which the indictment was based, refers to general elections only, and that it does not refer to primary elections; that the statute contemplates that the crime set forth in said section can only be committed in an election in which there can be a contest; that, since there is no provision for the contest of primary elections, the crime defined in Section 13350, General Code, of fraudulent writing on poll books or tally sheets, cannot be made applicable to the primary elections. It is a sufficient answer to that contention that Section 13324, General Code, provides:
“All provisions and requirements of law to preserve and protect the purity of elections, and all penalties for the violation of such laws shall apply and be enforced as to all primary elections.”
The section under which the indictment was drawn, which makes it a crime to fraudulently write on poll books or tally-sheets, was undoubtedly passed to preserve and protect the purity of elections, and therefore, by virtue of the provisions of Section 13324, is made applicable to offenses relating to primary elections.
Was there gross misconduct of the attorney general in the
voir dire
examination? It appears that counsel for the accused questioned several prospective jurors as to whether or not they read in the newspapers of the disagreement of prior juries in the previous trials of the same case, and that, thereafter, the attorney general, in the presence of a full panel and numerous other jurors waiting in the room to be interrogated, asked the following question:
“Q. Mr. Wilhelm, you and others have just been asked by Mr. Minshall whether you read in the newspapers that there was a disagreement in the previous trial of this case.
I will ash you whether you read in the newspapers that the jury stood 11 to 1 for the state of Ohio?”
Objection was made to the question, which objection was overruled and an exception taken. Then follows a series of questions of counsel for the accused, and also of counsel for the state, as to how former juries stood in the former trials.
We are of the opinion that the entire inquiry as to how former juries stood on the question of the
guilt or innocence of the accused in former trials was wholly improper; that the trial court would have been justified had it forestalled any inquiry by either side relating to that subject. Counsel for the accused unquestionably opened up this inquiry on this wholly irrelevant subject. The attorney general, following in the wake of this inquiry, likewise engaged in interrogation which was entirely improper. In the case of
State
v.
Auerbach,
108 Ohio St., 96, 104, 140 N. E., 507, 510, the court said:
“Much reliance must be placed in the trial court to see that a fair trial is had and that no injustice is done either party. This is his highest duty, and only when he appears to have failed in this great trust will a reviewing court intervene. ’ ’
A short time after the statements and questions of counsel on this irrelevant subject, the trial court admonished the jury as follows:
“I want to say to you that remarks were made in your presence as to how former juries stood. I will say at this time that you are entirely and absolutely to banish from your minds the standing of other juries; and if you are accepted as jurors in this case you will decide this case from the law, and the evidence, as you may find the evidence to be, not considering whatever what may have been done in former cases, nor the number that stood one way or the number that stood another way.”
This action upon the part of the trial court in so admonishing the jury is, in our opinion, in compliance with the language of the Supreme Court in
State
v.
Auerbach, supra,
and, under the circumstances, precludes the question of error based on misconduct of counsel for the state.
Was there error in the failure of the court to charge the jury forthwith after argument? It is pointed out by counsel for the accused that the state’s opening argument was completed at 3:30 p. m., and that the defendant waived argument. Nevertheless, the court refused to charge the jury forthwith, but adjourned court until 9:15 a. m. the next day, at which time the charge was given. We are cited to Section 13675, General Code, which reads:
“After the jury is impaneled and sworn, the trial shall proceed in the following order: * * *
“7. The court, after the argument is concluded and before proceeding with other business, shall forthwith charge the jury; * *
Counsel for the accused contend that the mandatory requirement of this section was not complied with, because the trial court did not charge the jury forthwith at the conclusion of the argument. Had the statute read, “the court after the argument is concluded shall forthwith charge the jury,” the interpretation sought by counsel for the accused would be entirely correct, but it will be seen that the language of the statute is, “the court, after the argument is concluded and before proceeding with other business, shall forthwith charge the jury.” Construing the language as a whole it lends itself to the reasonable interpretation that, after the argument has been made, no new matter shall be taken up by the court. It is conceded, on the record, that no new matter was taken up by the court between the conclusion of the argument and the giving of the charge to the jury, and, in our opinion, the action of the court was in compliance with the requirements of the Code. Were we to sustain the contention of
counsel for the accused that the language of the section “and before proceeding with other business” must be entirely disregarded, and that the duty of the trial court is to charge the jury immediately upon the conclusion of the argument, we would place an impediment in the path of the trial court, as the court would be given no time for contemplation or preparation when it deemed the same necessary in order to give a proper charge to the jury.
Was there error in the court’s refusal to give defendants’ special request, and was there error in the general charge of the court as given? The special request which the court refused to give is as follows:
‘ ‘ The state must prove every element of the crime charged, including the element of fraudulent intent, beyond a reasonable doubt, against the defendants or either of them, before you can find the defendants, or either of them, guilty of the crime charged.”
The part of the general charge objected to is as follows:
“You are instructed that all provisions and requirements of law in relation to elections apply to primary elections as well as to a general election.”
It is well settled that the procedure in criminal cases with reference to requests to charge made at the conclusion of the evidence is different from the procedure in civil cases. Paragraph 5 of Section 13675, General Code, provides that “either party may request instructions to the jury * * * which shall be given or refused.” An interpretation of the meaning of the section is found in the case of
Wertenberger
v.
State,
99 Ohio St., 353, syllabus 1, 124 N. E., 243, which reads:
“Under Section 13675, General Code, the court is authorized but not required at the conclusion of the evidence, upon the request of the state or of the accused, to charge the jury before argument upon the points of law requested and pertinent to the case.”
Thus it will be seen that it is entirely discretionary with the trial court, and that a refusal to give special requests to charge will not be considered as an abuse of discretion on the part of the trial court. The claim that there was error in the charge of the court as given, as above set forth, involves the same question already discussed with reference to the sufficiency of the indictment, and holding, as we do, that the section of the Code under which the indictment was drawn applies to primary elections, as well as general elections, it follows that the charge of the court objected to was in compliance with our interpretation of the law.
"Was there error in the court’s refusal to continue or pass the case because of the claim of the accused that it was impossible for them to obtain an impartial jury? In support of the motion to continue or pass the case, counsel for the accused stated to the trial court that there was a continuous campaign waged by the newspapers, assisted by the Cleveland bar association, which was bound to affect the impartiality of jurors called upon to serve in the case at bar. Counsel call attention to a special report in the newspaper of a meeting of the Cleveland bar association, scheduled for and held Tuesday, March 5, 1929, which aired the question of “What’s wrong with the jury system of Cuyahoga county?” In the announcement of the meeting, it was stated that the
reason for the meeting was the current investigation of the election frauds. In this connection, counsel for the accused also objected to conducting the trial in the new courthouse, claiming that the transfer of the case from the old courthouse to the new courthouse would give the matter undue publicity.
Under the provisions of our Code, ample authority is found for the right of the accused to move for a change of venue, if the accused and his counsel feel that it is impossible to get a fair and impartial jury. Conditions no doubt may arise where, because of wide publicity and agitation by different organizations, a change of venue would be justified, but the record discloses no such motion for change of venue. In the
voir dire
examination, the prospective jurors who were finally chosen stated that they would not be influenced by anything except the evidence, and that they would be fair and impartial. The accused having chosen to proceed in spite of the unfavorable atmosphere claimed by them to have existed, instead of asking for a change of venue, cannot at this time be heard to complain because the trial court refused to continue or pass the case.
Counsel for the accused urge that there was error in the action of the court in excluding a whole class of people who were called as prospective jurors, when it appeared that they were acquainted with any election officials or precinct workers. The action of the trial court is based upon Section 11438, General Code, which provides that “Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, * * *. The validity of such challenge shall be determined by the court, and be sustained if the court has any doubt
as to the juror’s being entirely unbiased.” The trial court, it will be seen, is given wide latitude in excluding prospective jurors.
As to the assignment of error that the court erred in sustaining the state’s exception to incorporation in the bill of exceptions of affidavits of jurors at a previous trial, we fail to see how this action of the trial court can in any way affect the judgment of conviction which took place before these affidavits were presented in support of a motion for a new trial. If the trial court erroneously excluded these affidavits filed in support of a motion of the accused for a new trial, the reviewing court would have a right to consider these affidavits, if it holds that the trial court should have considered the same. We find it unnecessary at this time to decide whether these affidavits were properly or improperly excluded, for the reason that, in our opinion, the presence of these affidavits, had the trial court not excluded them, would not have made it mandatory on the part of the trial court to grant a new trial.
Was there error in the conduct of the attorney general at the conclusion of the .case? Counsel for the accused] points to the colloquy between court and counsel, as appears in the record, as follows: “The Court: You may now proceed in argument on behalf of the defendants.
“Mr. Minshall: The Court may charge the jury.
‘ ‘ The Court: Ladies and Gentlemen of the Jury—
“Mr. Bettman: Just a minute—
“Mr. Minshall: We object. Just a minute.
“Mr. Bettman:
No argument¶
“The Court: They waived argument.
“Mr. Minshall: We object to the remark.
“The Court: They waived their argument.
“Mr. Minshall: Exception.”
The remark objected to, and which is construed as misconduct, was the inquiry of the attorney general, “No argument?” In brief and argument of counsel for the accused, reference is made to this remark of the attorney general as an exclamation made in a loud voice, and that the same was intended to convey a prejudicial influence upon the minds of the jurors. In so far as the record is concerned, this remark of the attorney general appears as an ordinary remark. Whether it was made as an exclamation, or in a loud voice, with dramatic effect, the record does not disclose. The trial court, however, admonished the jury to pay no attention to the remark.
We have thus far considered errors of law, and the holding of this court is unanimous that no reversible errors of law occurred during the trial. We shall now direct our attention to the assignments of error: (a) That the conviction of Charles F. Kahoun is clearly against the weight of the evidence, and that venue was not proved; (b) that there is nc evidence whatsoever to sustain the conviction of Frank Mazanec.
It appears from the record that on August 14, 1928, a primary election was held in Cuyahoga county, at which the defendant Frank Mazanec, a Republican, acted as presiding judge, and the defendant Charles F. Kahoun acted as Republican clerk, in ward 13, precinct R. This Republican poll book, which is the State’s Exhibit 1, made and kept by the Republican clerk, Charles F. Kahoun, showed 112 names written in it. It further showed that the
first 42 of these names did not come in alphabetical order, that is, as to the letter with which the surname began, but that the names of the voters from 42 to 112 were in alphabetical order. About 46 of the people whose names appear between 42 and 112 were called by the state, and they testified that they did not vote in the primary election. One witness stated that she was in Michigan on that day. There was evidence that two of the names appearing upon the poll book as having voted were those of voters who had died prior to election day.
It is conceded that all these names as they appeared in alphabetical order in the Republican poll book were written in the handwriting of Charles F. Kahoun. In the Republican poll book, opposite the names of various candidates, appear erasures, which the state contends were made for the purpose of adding these 70 names following No. 42 to the total vote cast for these candidates. The ballot bag for ward 13, precinct R, when opened, revealed that there were contained therein 112 Republican ballots; that 42 of these ballots were marked by X marks before various candidates, without uniformity as to the different candidates for the different offices; that 32 of the remaining 70 were marked uniformly for the same candidates, except one ballot, which had an additional candidate; the 38 remaining ballots were blank ballots, containing no X marks whatever. The 42 ballots which were indiscriminately marked for different candidates all bore crease marks, indicating that they had been folded and placed in the ballot box, but the 32 ballots uniformly marked for the same candidates, and the 38 blank ballots, contained no crease marks whatsoever, showing that
they had not been folded. These 70 ballots, which represented 32 marked uniformly for the same candidates, and the 38 blank ballots, were found sandwiched in between the
42
ballots indiscriminately marked. There was evidence introduced by the state that the crosses on 17 of the 32 ballots uniformly marked for the same candidates were made by the same hand and with the same pencil; that the remaining 15 crosses were made by a different hand, but that “different” hand was on all 15 of the remaining ballots.
This evidence presented by "the state, to say the least, called for explanation. The evidence as introduced by the defense was, in substance, that at about 3 or 4 o’clock a precinct worker entered the booth, checked the list, and that thereafter a rush started in the number of voters.
Charles F. Kahoun testified that he never wrote in a name when no one was there; that he wrote in no names whatsoever after the polls closed; he also stated that at about 3 or 3:15 p. m. some one came in with a printed list, and that he and a Democratic worker checked off the list, and gave the list back to the man; that thereafter from 4:00 to 6:30 p. m., the heaviest voting occurred. He admits that he wrote the names in the poll book appearing from 43 to 112, and all the other names except Nos. 1,17, 18, 1.9 and 20; that he also wrote the names of the other officials to the certificates in the poll books, but asserts that it was all done in their presence and to facilitate the work; that he did not know any of the voters personally, nor did he know that 70 persons gave false names. In brief, the evidence of the defense is to the effect that a precinct party worker,
after checking off the lists about 3:00 p. m., was responsible for the rush, and that, even admitting that a great many whose names appear between Nos. 42 and 112 did not in fact vote, the fault does not lie with the election officials, but, instead, with the party worker, who caused a rush of illegitimate voters who gave the names of registered voters appearing on the alphabetical book. This, of course, does not explain the reason why the first 42 names appearing upon the poll book did not appear in alphabetical order, but the 70 names following, from No. 42 to No. 112, all appear in alphabetical order in the handwriting of Charles F. Kahoun. Added to that are the contents of the ballot bag, where it was found that between the 42 ballots indiscriminately marked for different candidates there were sandwiched in 32 ballots uniformly marked for the same candidates and ¡3'8 ballots which were not marked at all, none of which 70 ballots so sandwiched in were creased or folded, while the other 42 were creased and folded.
There is considerable conflict between counsel on the point made by the attorney general, namely, that there was evidence that as to the 32 uncreased, unfolded ballots, uniformly marked for the same candidates, 17 had upon them a cross-mark made in the same hand, while the remaining 15 crosses were made by a different hand, but by the same “different” hand. Counsel for the accused maintain that the handwriting expert on cross-examination was made to weaken in so far as his testimony relating to a cross-mark is concerned. While this may be true, yet, taking the evidence offered by the state as a whole, it calls for an explanation by the accused.
Whether or not the explanation made by Charles F. Kahoun was sufficient to overcome the inference of guilt which arose from the evidence introduced by the state is a matter within the exclusive province of the jury. The state unquestionably established one fact conclusively, that is, that more than a majority 'of the 70 names which appeared on the poll books in the handwriting of Charles F. Kahoun, from No. 42 to No. 112, as having voted at the primary election, did not in point of fact vote at all. It then became incumbent upon the accused to explain away this circumstance of guilt.
The jury apparently did not attach much credit to the explanation that a party precinct worker caused the late hour rush which is responsible for the additional 70 names. Counsel for the state was within his rights in pointing out to the jury the weakness of the explanation by referring to the alphabetical order in which these 70 names appear, which order was not observed in the first 42 names appearing upon the poll book, and also in referring to the contents of the ballot bag, which showed 70 ballots sandwiched in between the 42 ballots indiscriminately marked for different candidates, 32 of which were uniformly marked for the same candidates and 38 of which were blank, and all of which 70 ballots were never creased or folded.
It must be conceded that, in so far as Charles F. Kahoun is concerned, upon the showing made for the state, had Kahoun chosen to introduce no evidence whatsoever in his own defense, a verdict of guilty based upon the showing made by the state would have been entirely justified. Charles F. Kahoun, through his counsel, introduced evidence in his
own defense which, sought to explain away incriminating inferences which arose from the evidence offered by the state. The jury was entirely within its province in attaching whatever credit it chose to the testimony of any of the witnesses. By their verdict of guilty, the jurors have practically stated that they did not attach credit to the evidence offered by the defense. The reviewing court is powerless to interfere with the discretion of the jury in its right to believe or not to believe the testimony given by any witness offered at a trial.
Was there any evidence tending to show that Frank Mazanec aided and abetted Charles F. Kahoun in the commission of the unlawful act charged in the indictment? It is our opinion that the evidence which appears from the record is ample to show that Frank Mazanec was presiding judge of the precinct. As presiding judge, it became his duty to be present during the entire day of voting, and to preserve and secure the purity of the election. It was his part to examine the ballots, discover whether the ballots were legitimately east, whether the name could be legally voted, and to inspect each ballot before it was counted. At the conclusion of the state’s case, a motion was made by counsel for Frank Mazanec that a verdict of acquittal be directed in his favor, as there was no evidence that he was present at the election booth. The Republican poll book offered by the state as Exhibit 1 showed that he so acted. The pay roll sheet, offered as Exhibit 3, and Exhibit 6, a, b, c, the Republican summary statement, also showed that he acted in that capacity.
It is our opinion that there was some evidence showing that he was present, and, in addition, there
is the presumption that he performed the duty required of a presiding judge that arises from the fact, shown in evidence, that the poll book, and also the pay roll sheet, so disclosed.
Frank Mazanec thereafter took the witness stand in behalf of Charles F. Kahoun, and there is no question whatsoever, taking the record as a whole, that he was present at the election booth the entire voting day.
The jury found that Charles F. Kahoun fraudulently wrote in the names of the many persons who did not vote at the election. The jury had a right to infer that Charles F. Kahoun could not have accomplished that without the aid and encouragement of the presiding judge, who was present. As to the content of the ballot bag, while the deposit therein took place after the act of Charles F. Kahoun, it yet constitutes strong evidence from which the jury had a right to infer that the presiding judge sought to harmonize the ballots with the fraudulent entries in the poll book, which the jury found were made by Charles F. Kahoun.
After minutely examining the record and the various assignments of error, we are of the opinion that there is no reversible error which would justify the upsetting of the jury’s verdict.
The judgment of the common pleas court will therefore be affirmed.
Judgment affirmed.
Sullivan, J., concurs.