State v. Orth , 106 Ohio App. 35 ( 1957 )

The necessity for my dissent from the opinion of the other members of this court arises solely from my inability to feel that the case of Duvall v. State, 111 Ohio St. 657,146 N.E. 90, requires an affirmance of the finding of guilty and judgment in the court below.

The main assignment of error involved here is the action of the trial court in overruling defendant's motion for leave to plead the defense of res judicata. If res judicata is a defense to a criminal prosecution, then the trial court was in error in overruling the motion, and the denying to the accused of the right to make such a plea would, in my opinion, be an abuse of discretion requiring a reversal.

"A comprehensive definition of res judicata is as follows: `The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.' 30 American Jurisprudence, 908, Section 161." Norwood v. McDonald et al., Admrs., 142 Ohio St. 299,52 N.E.2d 67.

A pertinent observation is made in Harris v. State,193 Ga. 109, 120, 17 S.E.2d 573, 147 A. L. R., 980, as follows:

"* * * It is interesting to note that one of the earliest formulations of essential principles of res judicata was made in a criminal case, the celebrated English case of Rex v.Duchess of Kingston, 20 Howell's State Trials, 538 (2 Smith's Leading Cases, part 2, 8th ed., 734 [784])."

The Supreme Court of the United States has applied resjudicata to a criminal prosecution and in Sealfon v. UnitedStates (1948), 332 U.S. 575, 578, 92 L. Ed., 180,68 S. Ct., 237, says:

"But res judicata may be a defense in a second prosecution. That doctrine applies to criminal as well as civil proceedings [citations] * * * and operates to conclude those matters in issue which the verdict determined though the offense be different."

However, our concern here is whether res judicata operates in criminal proceedings in Ohio. The unequivocal statement is made in 15 Ohio Jurisprudence (2d), 442, Section 259, as follows:

"The doctrine of res judicata, by which a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties, is applicable to judgments in criminal prosecutions."

So far as I have been able to ascertain, the doctrine has never been affirmatively recognized or applied by the courts of Ohio, although in the Duvall case, supra (111 Ohio St. 657), upon which the majority of this court bases its decision herein, the Supreme Court apparently recognizes the doctrine but holds that under the facts of that case it is inapplicable, when it says, page 669:

"* * * It may be said, therefore, that the doctrine of resadjudicata is not applicable where one is being tried for one of the substantive offenses embraced in a conspiracy to do an unlawful act, and the former trial was for another offense committed in pursuance of the same conspiracy. * * *

"We are of opinion that the offense of murder in attempting to perpetrate a robbery and the offense of robbery are separate and distinct offenses, and a general verdict of not guilty returned by the jury under the former charge, to-wit, murder in attempting to perpetrate a robbery, is not necessarily an adjudication of the fact of the guilt or innocence of the defendant in the commission of the robbery; that they are not the same offense, and that the plea of former jeopardy or resadjudicata does not apply."

Let us examine this holding further. It is apparent at the outset that the Duvall case attempts to examine the doctrine ofres judicata in connection with the constitutional prohibition against double jeapardy which is provided for in Section 10, Article I of the Ohio Constitution, as follows: "* * * No person shall be twice put in jeopardy for the same offense." Of course,res judicata cannot be successfully pegged to double jeopardy. The doctrines are separate and distinct. Double jeopardy applies only to the same offense. Res judicata applies equally to separate and distinct causes of action or offenses. Double jeopardy is a narrow or specific provision contained in the Bill of Rights of the Constitution as a safeguard or protection against a specific abuse or violation of an inherent right.Res judicata is a rule of law. It "may be said to inhere in the legal systems of all civilized nations as an obvious rule of expediency, public policy, public tranquillity, and natural justice, which do not favor a multiplicity of actions, and which require that litigation shall not be interminable. To hold otherwise might be dangerous, often oppressive, and would open an endless avenue to contention and vexation. Without this fundamental doctrine in full force and effect it is declared that the proper enforcement of law would be quite impossible, as it would unsettle all the determinations of law." 23 Ohio Jurisprudence, 962, Section 731.

Res judicata is, therefore, not dependent for its existence upon any constitutional provision. If the doctrine is to apply in criminal jurisprudence it must stand on its own feet. The square peg of res judicata cannot be fitted in the round hole of double jeopardy. If the doctrine is to be emasculated by being limited to the same offense, it should be abandoned entirely, as double jeopardy is ample protection against subsequent prosecutions for the same offense.

That the Supreme Court is aware that the applicability of resjudicata, or estoppel by previous judgment, has not been definitely settled in Ohio, is illustrated by the recent case (1951) of State v. Martin, 154 Ohio St. 539,96 N.E.2d 776. In that case, Martin, the driver of a motor vehicle was charged with manslaughter after his motor vehicle hit a motorcycle upon which two men were riding and both were instantly killed in the collision. He was indicted under two separate indictments, each charging the unintentional killing of one man. He was tried on the first indictment for the killing of one John Police and found not guilty. Upon his second trial, for killing John Batori, he plead former jeopardy, claiming his offense was the alleged unlawful operation of his motor vehicle at the time of the collision, and that whether one or two persons were killed at that time was immaterial, as it occurred as the result of one act which had previously, in the Police case, been declared not unlawful by his acquittal. However, the court held that the indictments were not for the unlawful operation of his motor vehicle but were for manslaughter of the two individuals; that they were therefore separate offenses — not the same — and that double jeopardy was not a good plea. In that case Martin did not plead res judicata, nor was it included in the assignment of errors nor argued in the briefs, but it was commented on at the time of oral arguments, and the court, exercising the prerogative of reviewing courts, did not consider the question of resjudicata, since it had neither been assigned as error nor argued in the briefs. In his concurring opinion, Judge Taft says, at page 545 (154 Ohio St.):

"* * * Therefore, I concur in the apparent decision of the majority that they should not exercise their discretion to consider that question [the so-called doctrine of estoppel by judgment against the state in a criminal proceeding] * * * since this decision will not prevent a full consideration of that question if it is properly raised and argued in some later case."

I am of the opinion that in overruling the defendant's motion for leave to plead res judicata and in denying him that right, the trial court erred prejudicially to the defendant. The entry overruling the motion shows that the court considered the entire proceedings in the murder case. As a matter of fact, the same judge who overruled the motion sat in the murder case itself and was thoroughly familiar with that record. Although that record was not made a part of the record in this appeal, the defendant in his brief claims — and it is not denied by the appellee — that in the opening statement counsel stated to the jury that the evidence would show that the defendant Orth was at home at the time of the robbery and therefore did not participate in it and that throughout the trial no other issue in the murder case was in dispute. Therefore the defendant admitted that a robbery of the G G Cafe took place at the time and place the state claimed and that during the course of the holdup and in connection therewith a man was killed.

Upon these facts and the admissions made, the only issue for the jury to decide in the murder case was: "Has the state proven by evidence beyond a reasonable doubt that Orth was present and participated in the robbery?" If so, he was automatically guilty of murder. This was the exact issue presented to the jury in the present robbery case. Thus, the core of the prosecutor's case was, in each case, the same. In my opinion the evidence required to support a conviction upon one of these charges would have been sufficient to warrant a conviction on the other and, under the third paragraph of the syllabus of the Duvall case, supra (111 Ohio St. 657), the doctrine of res judicata is applicable.

The appellee — the state — claims in its brief that the not guilty verdict in the murder case does not prove that the jury decided that the defendant was not present or participated in the robbery, and says: "The state may have failed to prove any other element of the crime beyond a reasonable doubt and that would then be the basis of the verdict by the jury." What other elements did the state have to prove? In murder in the perpetration of a robbery the state does not need to prove that the killing was wilful. It does not need to prove that the killing was premeditated or done after deliberation. All the state had to prove was that Orth was present and participated in the robbery in which John Mooney was killed. It did not need to prove that Orth had a gun. It did not need to prove that Orth pulled the trigger. It did not need to prove that the robbery occurred in Allen County, Ohio; that the robbers met at a certain place in Marion or drove a certain make of automobile of a certain color to Lima and parked it in a certain place; that so many dollars were taken from the cash register; that the pocketbooks of so many patrons were taken; that after the robbery the money was divided between the robbers; or that the guns used were afterwards thrown in a lake and subsequently recovered by the police. These facts were either admitted by the defendant or were entirely immaterial as far as the issue in the murder case was concerned.

It is true that a defense of alibi does not need to be proved conclusively to a jury. It is sufficient if it creates a reasonable doubt in the mind of the jury as to the defendant's guilt. Therefore, whether we accept the defendant's contention that the acquittal in the murder case definitely established the fact that the defendant was not present or participating in the robbery, or whether we accept the state's contention — which is the only other alternative — that the defense of alibi merely created a reasonable doubt in the mind of the jury, the fact remains that a vital issue has been decided on the merits, between the state of Ohio and the defendant Orth, by a duly empaneled jury, in a court of competent jurisdiction, upon which issue the court entered judgment from which no appeal was taken and which has all the attributes of finality. A verdict of not guilty because of reasonable doubt is just as effective and final and legal as a verdict of not guilty founded upon any other defense, and in my opinion it makes no difference whether the not guilty verdict was returned by the jury because in its opinion the alibi was established or whether it was returned because of reasonable doubt. The issue has been decided, no matter what the reason for the verdict may have been.

In my opinion, therefore, the judgment of the lower court should be reversed and, the defense of res judicata being good as a matter of law, the defendant should be discharged.