Miller v. State

17 Ohio Law. Abs. 456, 1934 Ohio App. LEXIS 461

Opinions

OPINION

By CROW, PJ.

None of these assignments of error is deemed of sufficient importance to deserve discussion, excepting that much testimony was introduced over the objection, of counsel for Miller, tending to prove his guilt- of offenses other than the crime charged in the indictment.

Under §13444-19, GC, most, if not all, of that testimony was admissible, the language of said section being as follows:

“In any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous vi'ith or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.”

Such, if any, of it as was not admissible under that section, was testified to by the defendant himself either directly or on cross-examination. Hence, Miller was not prejudiced by the 'admission of any such evidence as may have been improperly introduced by the state.

Thus far the court is unanimous in decision.

In the general charge, the court erred in a matter pertaining to one of the elements of second degree murder, which matter was not complained of in the brief in his behalf. Whether his counsel assumed that such error was not prejudicial, or for some other reason did • not see fit to claim anything for it, we do not know, but their well-known ability and experience are such that we cannot believe they overlooked the point.

Indeed the brief presents no ground of error at all pertaining to the correctness of the charge in its relation to the homicide as having been second degree murder.

At all events; it is the practice of this court to treat as waived, any claims of error which are not treated as provided in §12248, GC, which reads as follows:

“All errors assigned in the petition in error and pointed out by a brief, shall be passed upon by the court and in every case when a judgment or order is reversed and remanded for a new trial or hearing, in its mandate to the court below the Court of Appeals shall state the error or errors found in the record upon which the judgment of reversal is founded. Errors not specified by brief may be disregarded, but the court, in its discretion may consider and decide errors which are not assigned or specified.”

Plainly, it is, under that section, within the power of this court to go outside the brief for reasons to reverse a judgment, but it is not our duty to do so.

We deem it unnecessary to the proper disposal of this case, to decide, and therefore do not decide the error above mentioned which was not brought to our attention by the brief of plaintiff in error, to have been prejudicial nor do we decide that it was not, because the point was waived by the failure to insist on it in the brief.

We hold it to be the duty of a reviewing court such as a Court of Appeals in Ohio, to search for reasons to affirm a judgment but not to hunt for errors to reverse one.

Sec 12248, GC, which we have quoted above, is in substance no different than was the practice of reviewing courts from the beginning of procedure to obtain reversals • of judgments. That practice is a most salutory one in that it makes for the repose of the results of litigation in trial courts. • . -

■ It has always been the purpose of this court to follow that practice without exception, albeit on one occasion the majority of the court, Judges Crow and Klinger, may have inadvertently departed, although there might be some..ground for the contention that the treatment, of the point was such that it came within, the spirit of the rule requiring specification and argument of error.

In that case, Smethers, Executor v Railroad. Company, Number 437, Court of Appeals of Mercer County, decided June 1, 1933, the brief presented the point that there was error in that portion of the general charge which submitted the issue of contributory negligence, for the. reason that' it did not arise either on the pleadings or by the evidence. That specification of error was nipt sustained, but in submitting the issue, the court did err in requiring plaintiff to prove freedom from ■ contributory negligence as part of plaintiff’s case in chief. For that error the judgment was reversed.

Whether that constituted an exception or whether it did not, we repeat that so far as the writer of this opinion and Judge Klinger are concerned, it was not intended that the case be.an exception to the rule always theretofore, and since, observed by this, court.

-A very recent application of the rule the: court has steadily aimed to follow, is admirably stated in the opinion written by Judge Guernsey, in the case of Makley v State, Number 646, Court of Appeals of Allen County, Ohio, decided June 18, 1934, (17 Abs 305), as follows:

“In his-petition in error filed herein, the defendant makes seventy nine assignments of error, but in his brief filed in this court the errors. pointed out, which under the statute and rule of this court will be the only ones considered, are confined to fifteen particulars of error.”

• The majority of this court, Judges Crow and Klinger will continue to make no exception whatsoever to the rule that points of error not specified and argued in the brief will be ignored, excepting that if a case should. ever arise where the brief on its face would disclose either manifest incapability of counsel filing the brief, or. a purposeful disregard of duty, or the like, the brief should be ordered stricken from the files sua. sponte, and opportunity afforded plaintiff in. error . to obtain other counsel for preparation and filing of the brief.

And so, the judgment of the trial court in .this case will be. affirmed.

KLINGER, J, concurs. GUERNSEY, J, dissents.