State v. Sheppard (100 Ohio App. 345, 1955)

Skeel, J.

This appeal comes to this court on questions oi law from a judgment of the Common Pleas Court of Cuyahoga County, entered on a verdict of a jury finding the defendant guilty of murder in the second degree.

The defendant was indicted by the Grand Jury of Cuyahoga County for the crime of murder in the first degree, r being charged that on the 4th day of July, 1954, he purposely and of deliberate and premeditated malice lulled Marilyn Rees< Sheppard. Marilyn Reese Sheppard, who was the wife of de fendant, was found to have been murdered while in bed at he residence at 28924 West Lake Road, Bay Village, Ohio. Th< report of her death was first made by the defendant in a telephone call to the mayor of Bay Village, J. Spencer Houk, a close friend of the defendant and the deceased, shortly before 6 a. m., July 4, 1954. Thereafter, the police and firemen of Bay Village, members of the homicide sqnad of the police department of the city of Cleveland, deputy sheriffs from the sheriff’s office of Cuyahoga County and the county coroner and members of his staff, were called to the defendant’s home and an examination of the premises was conducted. The defendant was removed to Bay View Hospital, where he was questioned by the coroner, a deputy sheriff and a police officer, and, at some time thereafter he made a written statement of his knowledge of and the circumstances surrounding the death of his wife.

From the first time notice of the death of Marilyn Sheppard came to the attention of the press, radio and television stations, they immediately began to devote a great amount of space in publicizing every conceivable phase of the case. Every step of the way, the announcement of the death of Marilyn Reese Sheppard by force and violence, the investigation of the crime, the inquest, the indictment and every step of the trial was headlined, and on many occasions editorial comment was indulged in.

The trial was protracted over a period from October 18 to December 17, 1954. The jury deliberated on its verdict from December 17 to December 21, 1954, including December 19, which was a Sunday. The jury, consisting of seven men and five women, were quartered in the Carter Hotel in Cleveland, Ohio, under the care of two male bailiffs during their deliberations.

Before the trial began on October 17, 1954, the defendant filed a motion for a change of venue, which motion was renewed from time to time before and during the trial. The defendant also moved to continue the case on the ground that there had been so much publicity that a fair trial could not be had. These motions were overruled and the trial had, resulting in a verdict of not guilty of murder in the first degree, but guilty of murder in the second degree. After the overruling of defendant’s motion for new trial, the defendant was sentenced to life imprisonment as provided by law.

The defendant claims the following errors:

“1. The court erred in denying the defendant-appellant’s application for bail.

“2. The court erred in denying the defendant-appellant’s motion for a change of venue, which motion was repeated from time to time during the progress of the trial and repeatedly overruled.

“3. The court erred in denying defendant-appellant’s application for a continuance, which was repeated during the progress of the trial and repeatedly overruled.

“4. The court erred in compelling the defendant-appellant to exercise peremptory challenges when the court should have allowed the challenges for cause.

“5. The court erred in denying defendant-appellant’s motions for withdrawal of a juror and continuation of the case.

“6. For irregularities occurring during the trial and which reoccurred from time to time and to which the defendant-appellant objected and which objections were repeatedly overruled.

“7. The court erred in the dismissal from the jury, after the jury was accepted and sworn, of juror William Manning, and substituting in his place, over the objection of the defendant-appellant, juror Jack Hanson.

“8. The court erred in not permitting the defendant-appellant to exercise a peremptory challenge after such substitution.

“9. There was irregularity in the proceedings of the court.

‘ ‘ 10. There was irregularity in the proceedings of the jury.

“11. There was irregularity on the part of the prosecuting attorney.

“12. There was irregularity on the part of witnesses for the state of Ohio.

“13. There was error in the orders of the court by which the defendant-appellant was denied the benefit afforded him by the Constitution of Ohio and the Constitution of the United States of America, including the amendments thereto.

“14. There was abuse of discretion by the court, by reason of which the defendant-appellant was prevented from having a fair trial.

“15. There was misconduct on the part of the prosecuting attorney.

‘ ‘ 16. There was misconduct on the part of witnesses for the state of Ohio.

“17. The verdict is not sustained by sufficient evidence.

‘ ‘ 18. The verdict is contrary to law.

“19. Errors of law occurring at the trial, prejudicial to the defendant-appellant.

“20. Evidence prejudicial to the defendant-appellant was admitted over his objection.

“21. Evidence excluded from the consideration of the jury which was proffered by the defendant-appellant and which should have been admitted in evidence.

“22. There were errors by the court in its charge to the jury which were prejudicial to the defendant-appellant.

“23. There were errors by the court in refusing to give special instructions to the jury prior to argument, as requested by the defendant-appellant, and which were afterwards not included in his general charge.

“24. There was error by the court in overruling the defendant-appellant’s motion for a directed verdict of ‘not guilty’ at the close of the state’s evidence in chief.

“25. There was error by the court in overruling the defendant-appellant’s motion for a directed verdict of ‘not guilty’ at the close of all the evidence.

“26. There was error by the court in denying the motions made by the defendant-appellant both at the close of the state’s case and at the close of the defendant-appellant’s case.

“27. There was error by the court in not removing from the consideration of the jury the count of first degree murder.

“28. There was error by the court in not removing from the consideration of the jury the count of second degree murder.

“29. There was error by the court in not removing from the consideration of the jury the count of manslaughter.

“30. Other errors apparent on the face of the record to the prejudice of the defendant-appellant, and by reason of which he was prevented from having a fair trial, as affirmatively appears from the record.

“31. The indictment by the grand jury was the result of pressure exerted on the grand jury.

“32. The concept of presumption of innocence as established in the law was disregarded by the jury, who in their deliberations substituted for it a presumption of guilt.

“33. That the judge in this case several days before the day of the trial met with newspaper reporters, newspaper photographers, television personnel and radio commentators and arranged the courtroom in such a manner that the representatives of the press, radio and. television were given preference to the space in the courtroom. He also caused to be built and erected inside the bar a long table, which extended across the courtroom, and approximately twenty newspaper reporters were assigned seats at this table. One end of the table was within three feet of the jury box. Outside the bar there are four rows of benches which are for the use of the public during trials. Each of these benches will seat about twenty persons. The court assigned the first three rows to the personnel of the press, radio and television and in advance of the trial caused printed slips to be made with the names of such personnel printed thereon, and said printed slips were pasted at regular intervals along said row of benches so that said personnel referred to would know which place was assigned to him or her. The last row was reserved for members of the defendant’s family and members of the family of the deceased Marilyn Sheppard. The court established a rule that the admission of other persons to the courtroom was to be by card. The court also assigned to said newspaper, radio and television personnel all the rooms on the courthouse floor, including the assignment room, where cases are assigned to other court rooms for trial. In these rooms said radio, television and newspaper personnel had private telephone lines installed and other necessary equipment to carry on their work. Space in the assignment room was set over for the Chicago Tribune, Chicago Sun, The New York Herald Tribune, the Akron Beacon Journal, The New York Journal American, The Associated Press, The Pittsburgh Post Dispatch, the New York Post, The New York Daily News, The International News Service and the United Press.

“There was also erected in that room special telephone! booths and telegraph equipment which was used to forward with dispatch the reports of the trial.

“Rooms were also assigned to radio commentators on the third floor of the courthouse. This is the floor on which the jury deliberating rooms are located. One such room located next door to the jury that was impanelled in this case, was used by radio station WSRS and broadcasting continued from that room throughout the trial and during the time that the jury was in the room next door and during recess and during the deliberation of the jury.

“During' the entire time of the trial a great number of photographers, both television and newspaper, stood on the steps of the courthouse, on the stairs that lead from the ground floor of the courthouse to the second floor and along the corridor on the second floor from the top of the stairs to the entrance of the court room. When the members of the jury came to court, when they arrived for lunch or retired at the end of the trial day, they passed along the way above outlined and were photographed and televised many times, all with the knowledge of the court.

‘ ‘ On a number of occasions, it was necessary for counsel to confer privately with the court in chambers on points that were in issue in the trial. On such occasions when said conferences were held behind the closed door of the judge’s chambers, there would be a great rush of photographers, reporters, radio and television personnel into the room which adjoined the judge’s chambers. So great was the number that crowded into the room that it was necessary on such occasions for counsel to push their way out so that they could again regain their place in the courtroom. After counsel had secured their exit, then a great number of such persons as described would crowd into the judge’s chambers to inquire as to the purpose of the meeting.

“Each morning the defendant-appellant was brought into the courtroom approximately ten minutes before the trial opened, at which time he was surrounded by photographers and television operators and was photographed and televised many times.

“Many times during the trial there was constant moving in the part of the courtroom occupied by said reporters, radio and television personnel. They kept going in and out and changing places and relieving one another.

“Pictures of the jurors were printed in the newspapers and were shown on television in the evening. Newspaper pictures were taken in the home of one juror by a Cleveland Press photographer and printed in that paper along with an account of how the juror’s family fared while the juror was in court. The fact was called to the attention of the court but no action was taken.

“The court permitted photographers to come into the courtroom and take pictures of the jury panel. The court permitted photographers to go into the jury room and take individual pictures of the members of the jury. These pictures were printed in the newspapers.

“Television cameras were set up inside the courthouse with the knowledge and consent of the court. During the trial the court was part of a television program that took place on the steps of the courthouse in the morning at a time when the jurors were arriving. This program was arranged by a reporter named Fabian, a representative of the Scripps-Howard newspapers. The court stood across the street and watched until he received a signal and then walked over to the Courthouse steps, mounted the steps and had a conversation with said Fabian while the television cameras operated.

“On one day while the jury was leaving the courthouse, a man appeared on the courthouse steps carrying a sign referring to the case of Sam H. Sheppard. Counsel for the defendant-appellant took this man and the sign before the Court and requested that he be charged with contempt. Several days later when counsel was not present, this person was released.

“For months prior to the trial, news in the Cleveland newspapers were slanted against the defendant. A front page editorial appeared in the Cleveland Press demanding his arrest and urged he be subjected to the third degree. Day after day the public and jurors were treated to opinion-shaping headlines, such as ‘Quit Stalling and Bring Him In’ — ‘Sam Declined July 4th Lie Test’ — ‘Says Dr. Sam Talked Divorce.’ — ‘Testifies Sam Changed Stories’ — ‘Charges Sam Faked Injuries’— ‘Says Marilyn Called Sam a Jekyll-Hyde.’

“Statements were made by the chief of police, inspector of detectives, head of the homicide squad, members of the prosecuting attorney’s office, which were adverse and condemnatory of the defendant. Affiant says that none of said persons testified in the case.

“The defendant in his testimony stated facts bearing upon his questioning by Cleveland detectives. That evening the following headline appeared in the Cleveland News: ‘Kerr Called Dr. Sam a Bare Faced Liar.’ The ‘Kerr’ referred to is Captain David Kerr, head of the Cleveland Homicide Squad. Again, affiant says that said Kerr did not testify in this case.

“The jurors in their voir dire examination testified they read Cleveland newspapers and most of them had a Cleveland newspaper delivered into their homes.

“The jurors received the case at 10:30 a. m. Friday, December 17th and deliberated until 4:30 p. m. Tuesday, December 21st. This included deliberation on Sunday, December 19th, from approximately 10:30 a. m. to 6:00 p. m.

“During the deliberations the jury was ordered sequestered and placed in charge of two male officers of the court. During the period of deliberation, the jurors were taken by the officers to their meals and at night were lodged in the Carter Hotel. During the time the jury was allowed to separate and no female officer of the court was appointed to supervise the female members of the jury.

‘ ‘ On one occasion the jury was separated and photographs taken of such separated groups. One photograph was taken of the women members of the jury in one group and another photograph showed the male members of the jury in another group. The photographs of the groups as separated were printed in the newspapers, and in order to arrange such groupings, communications were made with the jury. Other photographs were taken of the jury while at their meals, coming to the courthouse and leaving the courthouse.

“That during the five days of deliberation and during deliberations the jury was in a room that was one flight of about twenty stairs from the courtroom; that the door from the court room to this flight of stairs was generally open; that during the deliberations the court room and the corridor outside was filled with curious onlookers, reporters, television, radio commentators and photographers. During this time card games were in progress in the courtroom, groups were visiting, a great number of people milled inside and outside of the court room, and the court room and corridors resounded with laughter, loud talk and noises. The floors of the court room and corridor became stained and dirty, and strewn about with papers, cigarette butts, empty paper cups and various litter; that the atmosphere that existed during the trial and during the deliberation of the jury was not conducive to profound and undisturbed deliberations.

“34. The court erred in overruling the request of juror Eleanor Borke to put a question to the defendant-appellant.

“35. The jury consisted of seven men and five women. When the case was submitted to the jury the court appointed two male bailiffs but no female bailiff, and after the commencement of deliberations the jury separated at night and the female members of the jury were not in charge of a female bailiff and were not supervised by an officer of the court; that at the hotel where the jury was quartered, the members of the jury had free access to telephone and did communicate during such time by telephone to various individuals.

“36. The defendant appellant was deprived of his liberty without due process of law and was denied trial by an impartía' jury by reason of the widespread publicity and misinformation disseminated through the newspapers, radio and television stations, both before and during the trial; that during the trial the jury was subjected to opinion-forming headlines and editorials, with resultant mass hysteria and the creation of an atmosphere of public opinion which made a fair and impartial trial by jury impossible, all within the knowledge of the court and all contrary to the provisions of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States of America and contrary to the provisions of Article I, Section 10 of the Constitution of the State of Ohio.

“37. There was error by the court in overruling the motion by the defendant-appellant for a new trial.”

The first claim of error based on the failure of the court to admit the defendant to bail must be overruled. This was a question resting in the exercise of the sound discretion of the trial court. The evidence produced at the hearing of defendant’s request for bail has not been brought into the record before us. In any event, such ruling can not now be raised after trial and conviction.

The second, third, sixth, ninth, tenth, thirtieth, thirty-first, thirty-third and thirty-sixth claims of error are concerned with denying defendant’s motion for change of venue and a continu-anee because of the manner in which the case was publicized. The record shows that the case, from the date of Marilyn Sheppard’s death until after the verdict was returned and the motions for new trial were filed and heard, received unusual coverage by the press, radio and television. No case in this community ever attracted such public interest or received so much attention by news disseminating agencies. Some of such publicity unquestionably was intended to spur on the investigation and was highly critical of the defendant and went so far in some instances as to have been designated by other newspapers as an attempt to try the case in the public press before the defendant was indicted. All this is argued by the defendant as establishing that the court committed an abuse of discretion in refusing to continue the case to a later date or to order a change of venue.

The legal questions presented by these assignments of error are not to be decided by a consideration of the publicity and the tendencies it might have in influencing the public mind generally with regard to their judgment of whether the defendant was guilty of the crime charged against him. The legal question is whether or not the defendant would be accorded a fair, constitutional trial by an impartial jury who would decide the issues of fact entirely by considering only the evidence submitted to them in open court, without the slightest outside influence, when considered in the light of the law as given them by the court. The best test as to whether or not a fair and impartial jury can be secured is the examination of jurors summoned as provided by law, on the voir dire examination.

In the case of Townsend v. State, 17 C. C. (N. S.), 380, 25 C. D., 408, the court said, in the first paragraph of the syllabus:

“The examination of jurors on their voir dire affords the best test as to whether or not prejudice exists in the community against the defendant; and where it appears that the opinions as to the guilt of the defendant of those called for examination for jurors are based on newspaper articles, and that the opinions as formed are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue.” (Affirmed in 88 Ohio St., 584, 106 N. E., 1083, without opinion.)

In the case of Hawkins v. State, 27 Ohio App., 297, 161 N. E., 284, the indictment was for a violation of the Crabbe Act. The plaintiff in error had attempted to organize the citizens of Lorain County against certain public officials of the county, calling for a special grand jury to investigate the killing of an insane citizen by a public official. While engaged in such activities, the plaintiff in error was indicted under the Crabbe Act, resulting in a great deal of newspaper comment both for and against him by the newspapers and also some members of the public. During the impanelling of the jury, five veniremen were excused for cause after statements that they had fixed opinions regarding the guilt or innocence of the plaintiff in error that would require evidence to remove. The trial court overruled plaintiff in error’s motion for change of venue. The court held:

“1. Unless it be shown that a fair and impartial trial cannot be had in the county where an indictment originates, a criminal trial must be tried there.

“2. One accused of crime has right to fair and impartial trial, and, if impartial jury cannot be impanelled in county in which indictment was found, trial court must grant motion foi change of venue.

“3. Whether or not an order granting change of venue in criminal case should be made rests largely within the sound discretion of the trial court.

“4. Appellate court should not disturb trial court’s ruling on motion for change of venue in criminal case unless it be clearly shown that trial court has abused its discretion.

“5. Denying change of venue for local prejudice of tria for transporting intoxicating liquor in violation of Crabbe Ac' (Sections 6212-13 to 6212-20, General Code) held not abuse oi discretion, notwithstanding that affidavits filed in support o: motion alleged that defendant had been criticized and denounced for activities in circulating petitions calling for removal of certain county officials from office and upon occasions of previous arrests on various criminal charges.”

In the case of Richards v. State, 43 Ohio App., 212, 183 N. E., 36, the court held:

“2. That trial court denied change of venue without prejudice until it could be determined whether fair and impartial jury could be impanelled held not abuse of discretion. (Section 13427-1, General Code [113 Ohio Laws, 132]; Article I, Section 10, Constitution).”

Other Ohio authorities are: 12 Ohio Jurisprudence, 128, Section 97; 12 Ohio Jurisprudence, 844, Section 853; State v. Stemen, 90 Ohio App., 309, 106 N. E. (2d), 662; Dorger v. State, 40 Ohio App., 415, 179 N. E., 143; Johnson v. State, 6 Ohio Law Abs., 707; State v. Deem, 154 Ohio St., 576, 97 N. E. (2d), 13.

From the foregoing authorities, the law of Ohio is clear that the best test of whether a defendant can have a constitutional trial in the county in which the indictment is returned is to be determined upon the impanelling of the jury. Citizens summoned for jury service represent a cross-section of the community. Their answers to questions directed to them in the process of impanelling a jury give a clear-cut picture of their state of mind; their answers, indicating whether they will be guided by the evidence alone in reaching conclusions of fact, must be given great weight in considering the question presented by a motion for change of venue. When the great majority of the prospective jurors called or summoned as provided by law to be impanelled in a criminal case state they are not and will not be subject to outside influence if accepted on the jury, a trial judge who overrules a motion for change of venue under such circumstances is not guilty of an abuse of discretion. The pery foundation of the jury system is founded upon the inherent honesty of our citizens in performing courageously such public service without fear or favor.

The law of Ohio on this subject is in complete accord with ;he great weight of authority as shown by the opinions of a *reat majority of the courts of last resort.

In the case of Viereck v. United States, 130 F. (2d), 945, which was a prosecution for violation of the “Propaganda Agency Act” where a change of venue was asked because widespread newspaper stories had aroused the community against the defendant, the court held that the overruling of such motion did not constitute an abuse of discretion where the record revealed that the jury was chosen very carefully and both sides accepted the jury which was eventually sworn.

In the case of People v. Broady, 195 Misc., 349, 90 N. Y. Supp. (2d), 864, which was a wire-tapping prosecution, the court held that newspaper comment alone, even though extensive, does not establish that a defendant can not be afforded a fair trial in the county where the indictment was returned and the overruling of a request for a change of venue did not constitute prejudicial error.

Likewise, in the case of People v. Sandgren, 190 Misc., 810, 75 N. Y. Supp. (2d), 753, the defendant was charged with second-degree manslaughter resulting from the killing of an eleven year old boy by defendant’s dogs wherein it was charged that defendant permitted such dogs to run at large notwithstanding their dangerous propensities of which defendant had full knowledge. In this case there was extensive newspaper coverage including direct declarations of defendant’s guilt and that he knowingly kept savage, vicious, killer dogs. The court, in overruling a motion for change of venue, held that widespread publication of belief or opinion by the press, of defendant’s guilt, does not show serious doubt whether defendant will receive a fair trial so as to warrant change of venue since the press is entitled to publish news with fair comment.

See also: People v. Connors, 251 Mich., 99, 230 N. W., 931; People v. Swift, 172 Mich., 473, 138 N. W., 662; People v. Broady, supra, State v. Burns, 79 R. I., 130, 84 A. (2d), 801: State v. Cooper, 10 N. J., 532, 92 A. (2d), 786; Jones v. State, 156 Tex Cr. R., 248, 240 S. W. (2d), 771; People v. Walker, 112 Cal. App. (2d), 462, 246 P. (2d), 1009; Winingar v. State, 97 Okla. Cr. Rep., 64, 257 P. (2d), 526; Wetzel v. State (Miss.), 76 So. (2d), 188; State v. Loveless (W. Va.), 80 S. E. (2d), 442; Terrance v. Commonwealth (Ky.), 265 S. W. (2d), 40; State v. Williams, 245 Iowa, 494, 62 N. W. (2d), 742; State v. Godwin, 216 N. C., 49, 3 S. E. (2d), 347.

In the case of State v. Bird, 31 Wash. (2d), 777, 198 P. (2d), 978, the Supreme Court affirmed the overruling of a motion for change of venue in a homicide case where there had been many newspaper accounts, the crime being one of great brutality, and held that a denial of such motion based on claimed local prejudice was not error in the absence of a showing that a situation had been created which would prevent defendant from receiving a fair trial before an impartial jury. It was likewise held in the case of Terrance v. Commonwealth, supra, that a defendant in a homicide case was not prejudiced by the denial of a motion for change of venue and it was not an abuse of discretion to overrule such motion despite newspaper and radio publicity in a county of approximately 500,000 people, where there was a large reservoir of qualified jurors. Also, the Supreme Court of Georgia, in the case of Morgan v. State, 211 Ga., 172, 84 S. E. (2d), 365, in which defendant had been charged with murder, it was shown that newspapers had carried news items and editorial comment to the effect that defendant had confessed the crime for which he had been indicted and also articles had been published about the defendant of an inflammatory nature. It was held that such facts were not sufficient in themselves to establish that a fair and impartial trial sould not be had in the county in which such newspapers were published in the absence of further allegations and proof that jurors who had been summoned to try the case had read the articles and publicity and had formed fixed opinions as to the yuilt or innocence from such newspaper articles.

As shown by the foregoing authorities, a refusal to continue a case because of adverse publicity is to be decided by the same rules as are applicable in considering a motion for change of renue. Snook v. State, 34 Ohio App., 60, 170 N. E., 444. Annotation to Delaney v. United States [199 F. (2d), 107], in 39 A. L. R. (2d), 1300, 1314, paragraph 4, page 1321.

The record in this case discloses that a special venire was ialled for the trial of this defendant as provided by Section «945.18, Revised Code. Seventy-five names were drawn from the jury box. Of this number eleven were immediately excused for justifiable reasons, or were not found and could not be summoned (three in number) by the sheriff. Of the remaining sixty-four, thirteen were excused because they had formed a firm opinion as to the guilt or innocence of the accused and ten were likewise excused because they were opposed to capital punishment. Sixteen others were excused for cause.

The state used four peremptory challenges and the defendant five. As is provided by Section 2945.21, Revised Code, the state in a homicide case where there is but one defendant is entitled to six such peremptory challenges and the defendant a like number, so that when the jury was sworn the defendant left the right to one peremptory challenge unused. From the foregoing analysis of the venire of 75 electors called in this case, four of those called were not needed in empanelling a jury of twelve. Such jury was selected as provided by law and sworn and accepted by the defendant to well and truly try, and true deliverance make between the state and the defendant.

The parties agreed to select two alternate jurors as provided by Section 2313.37, Revised Code. The four remaining jurors of the original list, together with an additional venire of 24 summoned as provided by law, were used for this purpose. Oi the 24 summoned, eight were called and questioned together with the four from the original venire in impanelling the twc alternate jurors. Of those examined, three were excused foi holding a firm opinion of the guilt or innocence of the ac cused, four were excused as being against capital punishment one was excused on challenge for cause, and each side used om peremptory challenge. (Each side had the right to excuse tw< prospective alternate jurors peremptorily under the provision of Section 2313.37, Revised Code.)

The analysis of the empanelling of the jury in this casi where but 16 prospective jurors out of 72 examined could no sit because they had prejudged the guilt or innocence of the ac cused, clearly shows that there was no difficulty whatever i: impanelling a fair and impartial jury.

The jury having been impanelled as provided by law an sworn to afford the defendant a fair and impartial trial and t come to its verdict by a consideration of the evidence submi ted in open court without any outside influence or consideration, and where there is no claim of misconduct on the part of any member of such jury during the trial, there can be no ground to claim a mistrial because of continued publicity, publicizing the events of the trial, and other related matters.

Claims of error Nos. 2, 3, 6, 9, 10, 13, 14, 31, 33 and 36 are, therefore, overruled.

The defendant has grouped assignments of error numbers 4, 5, 6, 7, 8, 9 and 14 under the general topic of “Errors in impanelling the Jury.”

The first complaint of the defendant has to do with the iourt sustaining objections of the state to questions propound-id to a prospective juror (Yerlinger) concerning what effect :he defendant’s affairs with other women would have on him, ;hat is, “would that prejudice you against him, or create in you i sense of ill-will toward him so that you would disregard the moof necessary to convict him of first degree murder?” The ivident purpose of this question was to find out what effect ¡vidence of extra-marital activities of the defendant, if shown, vould have on the juror’s consideration of other evidence. In he form in which the question was ashed, it was objectionable n that it asked the juror what his conclusions' would be upon onsidering such testimony. The question as framed was very lifficult to understand. The meaning ascribed to the question iy the defendant in argument would have been' proper. After he objection was sustained the defendant reframed the ques-ion and the court, over the objection of the state, allowed it to e answered. We do not find that the defendant was prejudiced y the court’s sustaining the state’s objection when considered a the light of the complete examination of all of the jurors by oth the state and the defendant on the subject. The question a a modified form was asked of all but three of the jurors (who rere sworn and served in the case) and answered without obiction. The cases cited by defendant are not directly in point, ’hey deal with the question of prejudice against a defendant imself because of race or other associations or conduct.

As to the juror Borke a question much like the one proounded to juror Yerlinger, above considered, was asked, and ie state’s objection thereto sustained. It does not appear that defendant refrained the question and the subject was not pursued further. As to the jurors who were excused peremptorily by the defendant, three were permitted to answer a question on the subject of the same tenor as was answered by the nine jurors selected to try the case, as to prejudice because of marital infidelity of defendant, and two were not interrogated on the subject.

After the jury was sworn and the agreement to empanel the two alternate jurors was had, it came to the attention of the court upon information received from an outside source, that juror Manning had not told the truth in answer to a question as to whether or not he had been a witness in a criminal case. The juror’s answer had been “No.” The information that then came to the court and parties was that this juror had been arrested on a morals charge and, upon conviction, had been sentenced to the workhouse, the sentence being suspended This took place in 1943.

The court, after knowledge that the state was going to object to juror Manning although then sworn as a juror, proceeded to empanel the alternate jurors. After the alternate jurors were sworn, juror Manning was then asked if he had testifiec in the 1943 incident, to which he answered, “I believe I did, sir I don’t know, yes, I did.” He also stated he had gotten inte an emotional state of mind by having this past experience giver such publicity. He stated that since the happening of such even he had lived an honorable life and was the father of a family The defendant entered an objection to juror Manning beim dismissed from the jury. After the alternate jurors wer< sworn, juror Manning stated, in part, in open court :

“I tried to be absolutely unbiased and unprejudiced h talking to other people, even in speaking outside the jury. Bu after what has happened, I would not be able to sit in the bo: with the other jurors, be able to sit in this case and be unbiased unprejudiced or unemotional is what I am trying to drive a mostly. If this keeps up, if I am kept on the jury, I think will be a sub-headlines as long as the trial goes on. I will defi nitely have a nervous breakdown in a very short time and, i: fact, I feel I am just about ready for one right now. ’ ’

The court excused juror Manning in the exercise of it sound discretion, under the authority of Section 2945.29, Revised Code, which provides:

“If, before the conclusion of the trial, a juror becomes sick, or for other reason is unable to perform his duty, the court may order him to be discharged. In that case, if alternate jurors have been selected, one of them shall be designated to take the place of the juror so discharged. # * *”

The defendant entered his exception to the procedure used by the court in discharging juror Manning and demanded the right to exercise his remaining peremptory challenge when the first alternate juror was seated in the panel after Manning was discharged, which request was refused.

After a jury is sworn and charged with the delivery of the defendant, the trial is commenced, and unused peremptory challenges can not thereafter be used; and, where an alternate juror has been selected and sworn as provided by law, he must be seated in the place of the discharged juror by order of the court.

One other error is claimed in the impanelling of the jury. The court granted the state’s challenge for cause as to juror Richter who was called to be impanelled as the second alternate juror. The evidence shows that this prospective juror had met both the defendant and his wife and had played golf with Mrs. Sheppard. Under oath, however, she stated that her “acquaintance with them was so slight that I don’t think — I know it would not interfere with my opinion.” After she again answered “yes” to the question of whether she could be a fair and impartial juror in the case, keeping in mind that she had known both the defendant and deceased, the court granted the state’s I motion challenging her for cause. Section 2945.25, Revised Code, does not include acquaintance as a ground of a challenge for cause and when a prospective juror under oath states that such acquaintance will in no way prejudice her and that she can act fairly and impartially as a juror, it constitutes error to grant a motion to discharge such juror for cause. Such error, however, was not prejudicial to the rights of defendant for two reasons. First, the second alternate juror empanelled after Richter was dismissed, did not become a member of the panel that was finally charged with the deliverance of the defendant at the conclusion of the trial. At the conclusion of the trial the second alternate juror was dismissed and took no part in deliberating upon- the verdict. And second, the state did not use up its peremptory challenges in empanelling the alternate jurors and it is therefore quite probable that it would have excused juror Richter peremptorily had the motion to dismiss her for cause been overruled.

Assignments of error Nos. 4, 5, 6, 7, 8, 9 and 14 are, therefore, overruled.

Assignments of error Nos. 17, 18, 24, 25, 26, 27, 28 and 29 are treated together in defendant’s brief under the heading: ‘ ‘ The court erred in denying the motions for directed verdict or for dismissal of the indictment.” This heading is divided into three sections:

“1. The staté has the burden of proof to establish defendant’s guilt beyond a reasonable doubt.

“2. In the absence of substantial evidence on all the elements of the crime charged against the defendant, it is the dutj of the court to direct a verdict.

“3. That there is no substantial evidence of defendant’s guilt but [the evidence] rather supports defendant’s story anc is inconsistent with his guilt. ’ ’

The elements of the crime of murder in the first degree as here charged against defendant and as defined by Sectioi 2901.01, Revised Code, are that defendant purposely killer Marilyn Sheppard of deliberate and premeditated malice. Then is no question that the venue of the crime charged is ii Cuyahoga County, Ohio. Likewise, the death of Marilyn Shep pard is not in question. That she was the victim of a bruta murder is not in dispute. The defendant in his brief on pag 267 says:

“It is true that an intent by someone to kill the deceden and that there was malice on the part of whoever did the killing may be inferred from the nature of the wounds and from th brutal and vicious attack that was made. ’ ’

And on page 12 of his brief defendant says :

“Marilyn Reese Sheppard, aged 30 years, was murdere in the bedroom of her home some time between midnight an 5:30 a. m. on Sunday July 4th, 1954.”

The murder is described in the closing arguments of the state “as one of the most brutal and vicious murders in the history of crime.” The evidence of the pathologist of the coroner’s office, and county coroner, giving opinion evidence of the cause of death, supported by pictures, portrays in all its horrible detail the scene in Marilyn Sheppard’s bedroom on the morning of July 4, 1954. The evidence of Marilyn Sheppard’s lying in a blood-soaked bed with 35 separate wounds, evidently resulting from blows of a blunt instrument, about her head and hands, in some instances of sufficient force to cause fractures of the skull, is unquestionably sufficient for the jury to find that the person who inflicted such wounds upon the person of the deceased, acted with a purpose to kill. The only questions left for consideration of the jury, which fact must be shown beyond reasonable doubt, that the defendant was the person who committed the acts causing the death, and if established by that degree of proof then to determine the degree of murder as defined by the statutes.

We go, therefore, directly to an examination of the evidence dealing with this question. It must be remembered that on appeal the court does not retry the issues of fact but is concerned only with whether there is sufficient and ample evidence to require a submission of the ease to the jury, and, where a verdict has been returned, whether there is substantial evidence (without weighing such evidence) to justify the verdict.

It is the claim of the state that the defendant, and the defendant alone, caused the death of his wife. It is the contention of the defendant that a third person was, or third persons were in defendant’s house on the morning of July 4th, and were responsible for her death. This, of course, is not by way of establishing a defense, because the defendant has' no such burden. It is enough if, when weighing such evidence when fairly considered with all the other evidence in the case, the jury does not find the existence of the essential facts necessary to establish the defendant guilty beyond a reasonable doubt. It is the contention of the state that only three people were in the Sheppard house after midnight of the beginning of July 4th, that is, the 7 year old son of the parties, the decedent, and the defendant, and that all the circumstances as shown by the evidence point directly to defendant as the one who perpetrated the crime. Also, the claim of defendant’s account of his encounters with the supposed intruder or intruders and his descriptions of him or them is so unbelievable as to give weight to the state’s circumstantial case. On direct examination in his own defense the defendant testified in part as follows:

“A. The first thing that I can recall was hearing Marilyn cry out my name once or twice, which was followed by moans, loud moans and noises of some sort. I was awakened by her cries and in my drowsy recollection, stimulated to go to Marilyn, which I did as soon as I could navigate.

“Q. Now, just one question here. Did you have a thought in your mind at that time as to what caused Marilyn to cry out? A. My subconscious feeling was that Marilyn was experiencing one of the convulsions that she had experienced earlier in her pregnancy and I ascended the stairway. As I went upstairs and into the room I felt that I could visualize a form of some type with a light top. As I tried to go to Marilyn I was intercepted or grappled. As I tried to shake loose or strike, I felt that I was struck from behind and my recollection was cut off. The next thing I remember was coming to a very vague sensation in a sitting position right next to Marilyn’s bed, facing the hallway, facing south. I recall vaguely recognizing my wallet.

“Q. Now, just a moment. At that point have you any way or can you determine — is there any way of determining the length of time between the time you were knocked out and when you came to this sitting position? A. No, sir, no way that I know of.

“Q. Now, I am handing you state’s exhibit 27 and defendant’s exhibit T. Is that your wallet? A. Yes, sir, it is.

“Q. When was the last time you had it in your hand before I handed it to you this morning? A. It must have been that morning.

“Q. That morning. Now, you say — what? A. I may have had it in my hand at the inquest. I’m not sure whether Doctor Danaceau handed it to me or just held it.

“Q. I see, but — A. Mr. Danaceau — excuse me.

C C # # #

'4 Q. Now, I have come to the point where you had awakened and saw the faint glow of yonr badge on the floor. Do you remember? A. Yes, sir.

“Q. Was there a light in the house anywhere? A. Yes, sir, there was.

“Q. That you remember? A. There was a light.

“Q. And where was that light? A. I cannot say for sure, of my own knowledge.

“Q. There was some kind of light? A. Yes, sir.

“Q. Now, then, after you awakened or came to consciousness repeat, as best as you can, in your own words, to this jury what you saw and what you did. A. Well, I realized that I had been hurt and as I came to some sort of consciousness, I looked at my wife.

“Q. What did you see? A. She was in very bad condition. She had been — she had been badly beaten. I felt that she was gone. And I was immediately fearful for Chip. I went into Chip’s room and in some way evaluated that he was all right. I don’t know how I did it. I, at this time or shortly thereafter, heard a noise downstairs.

“Q. And what did you do when you heard the noise downstairs? A. And I — I can’t explain my emotion, hut I was stimulated to chase or get whoever or whatever was responsible for what had happened. I went down the stairs, went into the living room, over toward the east portion of the living room and visualized a form.

“Q. Now, where was that form when you first visualized him? A. Between the front door of the house and the yard somewhere.

“Q. Now, are you able to tell the jury what your mental condition was when you came out of this — awoke from this attack? A. I was very confused. It might be called punchy, in Language that we use as slang. I was stimulated or driven to try to chase this person, which I did. My—

“Q. And when you saw the form, what did you do? A. Well, [ tried to pursue it as well as I could under the circumstances.

“Q. And where did you pursue it? A. Toward the steps to ;he beach at which time I lost visualization of this form.

“Q. Was it dark? A. Beg pardon?

“Q. Was it dark? Dark? A. Yes, sir, it was dark but there vas enough light from somewhere that I could see this form.

“Q. Yes, all right. A. I descended the stairway and to the landing and I visualized the form going down, or as he came on the beach. And it was at this time that I felt that I could visualize a silhouette that was describable. I—

“Q. What happened on the beach? A. I descended as rapidly as I could. I lunged or lurched and grasped this individual from behind. Whether I caught up with him or whether he awaited me, I can’t say. I felt as though I had grasped an immovable object of some type. I was conscious thereafter of only a choking or twisting type of sensation, and that is all that I can remember until I came to some sort of very vague sensation in the water, the water’s edge.

“Q. Were you able to determine anything about that person? A. Yes, sir.

“Q. And what? A. Well, I felt that it was a large, relatively large form; the clothing was dark from behind; there was evidence of a good sized head with a bushy appearance ai the top of the head — hair.

“Q. Now, then, when you came to the second time, jusl where were you? A. I don’t know exactly where I ivas. I was—

“Q. Were you on the beach? A. I was on the beach with—

“Q. Where was your head and where were your feet? A My feet were in the water and my head was directed to the see wall, toward the south, generally. I could have been slightlj askew. The waves were breaking over me and even moving m3 lower part of my body some.

“Q. What was the condition of light at that time? A Light ?

‘ ‘ Q. Light, yes. A. It was light enough to see at that time I could see Huntington Pier later when I came to enough sensa tion to see at all.

“Q. Day was breaking, is that right? A. I would say i had broken somewhat.

“Q. Day had broken. What was your mental and physica condition as you remember it now, that you were in at the tim< that you came to consciousness on the beach? A. My menta condition was that I was extremely confused. I didn’t 1mm where I was or how long I had been there, or my own name, fo that matter.

“Q. Do you know how long yon lied on the beach before you got up? A. No, sir, I don’t.

“Q. Well, you did get up to your feet? A. I finally did.

“Q. Do you know how you got up the steps? Do you have any recollection of that? A. I remember, as I finally came to enough sensation to get to my feet, I rather staggered up the stairway and as I was going up, or as I was recognizing that this was my house, I entered the house and came to the realization that I had been hurt and that I had been struck by an intruder and I was then fearful for Marilyn although I can’t say that I actually remembered of seeing her.

“Q. You remember what? A. I can’t say that at that time I remembered seeing her the previous time upstairs.

“Q. How was your mind working? Was there any blocking of your mental processes at that time? A. The best I can explain it is that my mind was working like a nightmare or a dream, very horrible dream.

‘ ‘ Q. And then what did you do when you got in the house ? A. I eventually went up the stairs. I’m not sure just exactly how rapidly I went upstairs but I did finally go upstairs and it was at that time that I re-examined Marilyn.

“Q. Was there enough light in her room then to see her? A. Yes, sir.

“Q. What did you see? A. I saw that she had been terribly beaten.

“Q. Did you determine she was dead? A. Yes, I thought that I did.

“Q. What was your feeling at that particular time, if you had any feeling, that you remember ? A. I was horrified. I was shaken beyond explanation, and I felt that maybe I’d wake up, maybe this was all a terrible nightmare or dream and I walked around, paced, I may have rechecked little Chip. Very likely .I did, but I can’t say specifically that I did, and I may have gone back in to see Marilyn. As I recall — I could have passed out again, I don’t remember but I was staggered. Finally I went down the stairs trying to come to some decision, something to do, where to turn. I must have paced and walked around downstairs trying to shake this thing off or come to a decision and [ thought of a number and called it.

“Q. What was the number you thought of? A. I thought that the number was that of Mr. fiouk’s.

“Q. Do you recall what you said to him over the phone? A. No, I don’t.

“Q. Where was the telephone? A. There are two phones downstairs. I’m not positive which one I used.

“ Q. And do you know how long it was, have you any recollection of the length of time between your telephone call and the appearance of Mr. and Mrs. Houk? A. It seemed like a long time, but it evidently was a relatively short time.

“Q. And do you know where you were or what you were doing between the time that you made the telephone call and the arrival of Mr. and Mrs. Houk? A. I was walking through the house again and trying to — trying to clear my mind, trying to remember what had happened, trying to remember a description of this individual that I had seen, trying to differentiate whether there were two people or one, in fact, almost thinking there were two. I, shortly before the Houks came, stopped in the kitchen and put my head on the table and that is the first time I recall realizing or recognizing that I had a very severe pain in the neck. Up to that time I may have been holding my neck but I don’t remember. And at that time I felt that my neck was injured.”

On July 4, at 11 a. m., the defendant made the following statement to officer Schottke of the Cleveland police department as shown by the police report created July 7,1954, which was received into evidence as “State’s Exhibit 49”:

‘ ‘ Sir:

“The following is the list of questions asked Dr. Sam Sheppard on the first time we questioned him on July 4, 1954:

“Q. Will you tell us everything that you know about this? A. He stated that the Aherns were visiting and that he fell asleep on the couch before they left. The thing he remembers is that he heard his wife screaming and he ran up the stairs and as he entered the room he thought he seen a form and at that time he heard someone working over his wife. He then was attacked and hit on the side of the head and knocked unconscious. When he regained conscious he heard a noise downstairs and! he ran downstairs and seen a form going out the door leading! to the porch. He ran after this form and chased him down the stairs and when he got to the boathouse landing he doesn’t remember if he jumped over the railing or if he ran down to the beach but he half tackled him and he struggled with him and was again knocked unconscious. "When he regained consciousness, he was on his stomach on the beach being wallowed back and forth by the waves. He then went up to the house and wandered around in a daze and went up and went up to his wife’s room and attempted to administer to her and felt that she was gone. He then went downstairs and wandered around in a daze and finally a telephone number came to his mind and he called this number and it was Mayor Houk. He said that Houk came to his house and also his brother Richard and he was then taken to the hospital.

“Q. Asked him to describe the screams. A. Stated that they were loud screams.

“Q. How long did the screams last? A. Stated all the while he was running up the stairs.

“Q. Asked him if the same person attacked him that he heard working over his wife. A. Stated no, as he was under the impression that he was attacked by someone else at the time he heard someone working over his wife.

“Q. Asked him how many times he was assaulted? A. Stated two or three times at the most.

“Q. "With what were you assaulted? A. He stated with fists.

“Q. Asked him if he could describe the person that went rat the door, if that person was white or colored? A. He stated ;he person must have been white because the dog always barks it colored people. This person was taller than he was, he was ibout 6'3" and was dressed in dark clothing and was a dark iomplected white man.

“Q. Asked him if he turned on any light at the time he ooked at his wife in the bedroom. A. He stated no.

“Q. Asked him if there were any lights on in the house. L He stated he does not remember, he does not recall.

“Q. Asked him how he could see to administer to his wife f he did not turn on any lights. A. He stated he was able to letermine there was nothing he could do for her and that she was gone.

“Q. Asked him a,s to the condition as to light and darkness at the time he regained consciousness on the beach. A. He stated it was a little lighter than dark.

“Q. Asked him if the doors were kept locked in the house. A. He stated the doors were never locked.

“Q. Asked bim if there was a great deal of money kept around the house. A. Stated no, only about $60 or $70.

“Q. Asked if any narcotics were kept in the house. A. Stated no, but there may be a few samples in my desk.

“Q. Asked him about Dr. Hoversten staying at his house and where he was at now. A. He stated Dr. Hoversten was staying at his house for a few days but that he had left yesterday afternoon to keep a golf date at Kent, Ohio.

“Q. Asked him if he had heard rumors to the effect that Dr. Hoversten was infatuated with his wife. A. He stated that he had heard those rumors but he did not think anything about it and the rumors might be true.

“Q. Asked him if he knew of any men that may have stopped at his home while he was at work. A. He stated thai several men have stopped but that his wife was faithful to him

“Q. Asked him if he could name any of them. A. Statec that he could not think of any names right now.

‘ ‘ Q. Asked him if he was running around with any women A. He stated no.

“Q. Asked him if his wife was running around with an] men. A. Stated no. ’ ’

Defendant talked with Coroner Gerber at the hospital a about 9 a. m. on July 4th. Dr. Gerber testified as to defend ant’s statement of the events of the morning of July 4th, a follows:

“Q. Did you have a conversation with him? A. Yes, sir.

“Q. Now will you please relate the conversation? A. asked him if he could tell' me what happened, that is, I aske Dr. Sam Sheppard if he could tell me what happened. He sai he would try to and his conversation was as follows:

‘ ‘ That he was sleeping on this couch or davenport and thi he thought he heard someone call him, ‘Sam.’ That he immi diately jumped off the couch and rushed upstairs. When he g( to the head of the stairs something clobbered him on the bac of the neck or head, and that he was rendered nnconscions. He doesn’t know how long, he stated, he didn’t know how long he was unconscious but when he came to he thought he heard a noise in the living room. That he rushed back down the stairs to the living room and that he was — he thought that he saw some form going out of the doors toward the stairs that lead to the beach. That he rushed after the form, and that when he got to the foot of the stairs that lead actually to the beach alongside of the boathouse or bath house, he got into a wrestling match or hassle with the form and that he was rendered unconscious again, and he woke up later and went back up to the house and then went into — up the stairs — went into the living room, up the stairs to the second floor and into his wife’s bedroom and felt of her pulse at the neck; realized that there was something wrong with her, something seriously wrong with her, that she was probably dead. That he came back downstairs and some time later called Mayor Houk. I asked him if he could see this form as he went up the stairs from the couch. He said, ‘No, it was too dark to see.’ He couldn’t see anything except a form.

“I asked him if he could see the form going down the stairs to the beach. He said, ‘No, just a form. Just an outline.’ I told him I wouldn’t ask him any more questions and left. At the time that I was — he was talking to me and I was asking these questions, Dr. Richard Sheppard came in and another doctor of the hospital came in and took — this doctor, other doctor, took Dr. Sam Sheppard’s blood pressure.”

He also stated:

“That he rushed after this form. He couldn’t tell definitely what this form was, couldn’t tell whether it was a human being or whether it was a man or a woman, whether or not it had a hat on, whether or not he could see any hair, whether or not it had a coat or trousers on.”

The foregoing was repeated at the inquest at Normandy School as shown on page 3101 of the record.

On the afternoon of July 4th at about 3 p. m., the defendant was again questioned by Officer Schottke at which time he stated in part, as testified to by Officer Schottke:

“We then told him that there was blood on the band and on the crystal of the wrist watch, asked him if he conld tell us how the blood got there. He stated that he remembered that at the time that he regained consciousness in the upstairs bedroom that he had felt his wife’s pulse at the neck and felt that she was gone and at that time he must have gotten the blood on the wrist watch and then he heard a noise downstairs and ran downstairs. ’ ’

On July 10th defendant went to the sheriff’s office at the request of the authorities, wher