Petition for Writ of Certiorari — Tehan v. United States Ex Rel. Shott

FILED

FEB 4 1965

SUPREME COURT OF THE UNITED STATES

DAN TEHAN, SHERIFF OF HAMILTON COUNTY,

OHIO,

Petitioner,

Vv.

UNITED STATES OF AMERICA, EX REL.

EDGAR I. SHOTT, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO*THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MELVIN G. RUEGER

Prosecuting Attorney

CALVIN W. ?REM

Ass’t Prosecuting Attorney

HARRY C. SCHOETTMER

Ass’t Prosecuting Attorney

Room +420

Hamilton County Courthouse

Cincinnati, Ohio 45202

Attorneys for Petitioner

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COURT INDEX PRESS, INC. — Law Printers — 909 Walnut Street, Cincinnati, Ohio 45202

SUBJECT INDEX

Page

Opinion below ..........-.secceeececceerceseees ]

ns reer eee ee l

Question presented ............ 00 ce eeeeeeeeeeees 2

Statement Of the'Case ........ccccccccscescecvens 2

PI OE BO oo ecic nec ces cesveeseewivese 3

Reasons for Granting the Writ ............--+.00+. 4

IN ok bk bNa Sh Eee Tees vee vesrcveneauee 9

ROOT A ove recccccsvncnvesevscseengevis 10

DOE OE og i 5 i a ei ee neue ns wdes 12

PENS 5. os ccc c anid thane cterecesyceeiyeas 17

ARQOREE Donen cc ci vcccceveccvesceevesenpeaen 18

TABLE OF AUTHORITIES CITED

Cases

Fay v. Noia, 372 U.S. 391 at 440 .. 0... cee eee ee eee 4

Garrett v. Hansue, 53 O. S. 482, Syl.2 .............. 8

Gideon v. Wainwright, 372 U.S. 335 ......4.....+... 7

Griffin, Eddie Dean v. State of California, 202,

October Term, 1964 .............cceeseeeees 4, 5

Johnson v. Zerbst, 304 U. S. 458 .............-445 8

Malloy v. Hogan, 378 U. S. page 1 (1964) .......... 5

United States of America, ex rel. Edgar I. Shott,

Jr. v. Dan Tehan, Sheriff of Hamilton

County, Ohio, #15538 ........ 6.6... e eee eee 5, 6

Codes

Section 1707.44 (A) Revised Code of Ohio ........

Section 1707.44 (C) Revised Code of Ohio ........ 2

Section 2945.43 Revised Code of Ohio ............ 11

Constitutions

Ohio Constitution:

Pe FN is nk co 8 hppa he 4098 ORK 4,10

United States Constitution:

Fifth Amendment ...........+++++++5: ae ses

In the

Supreme Court of the United States

October Term, 1964

DAN TEHAN, SHERIFF OF HAMILTON COUNTY,

OHIO,

Petitioner,

v.

UNITED STATES OF AMERICA, EX REL.

EDGAR I. SHOTT, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the Sixth Circuit, entered in the above entitled case on

November 10, 1964.

OPINION BELOW

The decision and opinion of the United States Court of

Appeals for the Sixth Circuit is reported in 337 F. (2d) 990.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on November 10, 1964. The juris-

—_—_

ip

diction of this Court is invoked under 28 U. S. C., Section

1254 (1). |

QUESTION PRESENTED

Whether the protection against self incrimination under

the Fifth Amendment includes not only the right of

defendant not to take the stand as witness in his own be-

half, but also the right that such refusal shall not be com-

mented upon by counsel for the prosecution, where the

Ohio Constitution and statute specifically provide the

opportunity to comment?

STATEMENT OF THE CASE

On the twelfth day of May, 1961, an indictment against

Edgar I. Shott, Jr. was returned by the Grand Jury of

Hamilton County, Ohio, to the Court of Common Pleas.

In two separate counts in the indictment Shott was charged

with selling a security without a license in violation of

Section 1707.44 (A), Revised Code of Ohio, and selling a

non-registered security in violation of Section 1707.44 (C),

Revised Code of Ohio. Shott pleaded not guilty on arraign-

ment, and upon trial was found guilty by a jury of both

charges. The Court sentenced him to the Penitentiary for

a period of 1-5 years.

The Court of Appeals of the First District of Ohio, and

the Supreme Court of Ohio, subsequently affirmed the

judgment. An appeal to the United States Supreme Court

was dismissed, but was treated as an application for a writ

of certiorari, which was denied. A petition for re-hearing

was also denied.

The Supreme Court of Ohio issued a mandate to Dan

Tehan, Sheriff of Hamilton County, Ohio, to carry into

effect the sentence imposed by the Court of Common Pleas.

Shott filed a habeas corpus proceeding in the United States

District Court for the Southern District of Ohio, Western

Division. After oral argument the proceeding was dismissed

by the District Judge, from which order the petitioner

appealed to the United States Court of Appeals for the

Sixth District. The Court of Appeals set aside the order

of the District Court and remanded the case to the Dis-

trict Court for further proceedings.

STATEMENT OF FACTS

Patrick Sestito, a resident of Cincinnati, Ohio, in the

latter part of the Summer of 1960, heard about investment

opportunities with the defendant from certain car dealers

on Reading Road, Cincinnati, Ohio. (Re 27) On Septem-

ber 28, 1960, with $2,000.00 in his pocket, Sestito went to

the office of Edgar I. Shott, Jr., in the Atlas Bank Building,

Walnut Street, Cincinnati, Ohio. He had not been in

previous contact with the defendant concerning investments,

and had not been contacted by the defendant in any manner.

Mr. Sestito and the defendant had a discussion about in-

vesting the money of Mr. Sestito in buildings and financing.

(R. 18, 19). At the time Shott explained the workings of

the Shott Investment Company to Mr. Sestito and showed

him a draft of the progress of the Shott Investment Com-

pany from its inception. (R. 20, 21)..

Mr. Sestito was satisfied with the 12%% profit for a

period of 62 days offered by the defendant, and he en-

trusted his $2,000.00 to the defendant and received a

promissory note for the money. (R. 21). The note stated

that Mr. Shott would pay the sum of $2,250.00 to Patrick

Sestito on November 29, 1960.

On the due date the secretary of the defendant called

Mr. Sestito and asked him if he wanted to “let the note

4

ride,” or, in other words, to reinvest it. (R. 24). Mr. Sestito

decided against reinvestment with the Shott Investment

Company, went to the office of the defendant, and received

a check of the defendant in full payment of the amount

of the note. (R. 25).

The defendant was not licensed with the Division of

Securities of the State of Ohio (R. 12), and the security

had never been registered with the department of Securities

of the State of Ohio. (R. 13).

REASONS FOR GRANTING THE WRIT

The trial of the case of State of Ohio v. Edgar I Shott, Jr.

was so unique and so different from the usual presentation

of evidence to a jury that it must be considered an excep-

tion. As an exception to the usual presentment of fact it

necessarily follows that it is an exception to the usual appli-

cation of law. A basic tenet was recently stated by Justice

Brennan in Fay v. Noia, 372 U.S. 391, at page 440:

“Each case must stand on its facts.”

In this case we feel that the application of the concept

of the law which does not take the facts into consideration

would destroy our direction in the fulfillment of the law.

We are aware at this writing that the Supreme Court

of the United States has granted certiorari in Eddie Dean

Griffin, petitioner, v. State of California, 202, October

Term, 1964. In the general broad terms of law the first

question presented in the Griffin case is similar to the

question in the Shott case. The State of Ohio has a pro-

vision in its Constitution, Article I, Section 10, in part as

follows:

“* * * No person shall be compelled, in any crim-

inal case, to be a witness against himself; but his failure

to testify may be considered by the court and jury

and may be the subject of comment by counsel * * *”

5

Because Ohio’s constitutional provision is similar in

scope to the California Constitution’s Article I, Section 13,

in the trial of the Shott case, as well as the trial of the

Griffin case, counsel availed themselves of the opportunity

ted by their respective Constitutions to comment on

the failure of the respective defendants to take the stand

in his own behalf. Without recognizing a difference in

the facts of the trial it would appear that a broad legal

brush could cover both cases.

In Malloy v. Hogan, 378 U.S., page 1 (1964), the Su-

preme Court held that the Fifth Amendment privilege

against compulsory self incrimination is protected by the

Fourteenth Amendment against abridgment by the states.

The question in Griffin, which the Supreme Court must

decide, is whether comment by the prosecution on the

failure of the defendant to take the stand as a witness in

his own behalf is a violation of the privilege against com-

pulsory self incrimination.

The United States Court of Appeals for the Sixth Circuit,

in the case of United States of America ex rel. Edgar I.

Shott, Jr. v. Dan Tehan, Sheriff of Hamilton County, Ohio,

No. 15538, in an opinion filed November 10, 1964, decided

a similar issue. The Court found:

“* * * The protection against self incrimination

under the Fifth Amendment includes not only the

right to refuse to answer incriminating questions, but

also the right that such refusal shall not be commented

upon by counsel for the prosecution.”

The decision of the United States Court of Appeals for

the Sixth Circuit may very well be similar to the decision

of the United States Supreme Court in Griffin. Even in this

event we contend that the decision in the Shott case in the

Court of Appeals should be reversed. Of course, if the

Supreme Court in the Griffin case holds contrary to the

6

decision of the Court of Appeals in Shott, a reversal would

be in order.

Our main contention in requesting a reversal is that

Shott, by his admission of, and acquiescence in, the stipula-

tions, concessions and agreements made by counsel in open

court in his opening statement to the jury, and by Shott’s

acceptance of the comment made by his counsel in final

argument on his failure to take the stand, waived his con-

stitutional rights under the Fifth Amendment.

On the first day of trial, the defendant being present,

one of the defense counsel spoke to the jury as follows:

(R. 6)

“As you have been told, the defendant, Ed Shott, is

a lawyer, actively engaged in the practice of law in

his community. He is being tried for an alleged

violation of the Ohio Securities Law, better known

as the Blue Sky Law. If I seem to be reading a portion

of my opening statement, it is because the defense

believes that the whole, unmitigated truth, told accur-

ately and precisely, will establish the defendant’s inno-

cence. I am, therefore, not permitting myself that

margin of error which is inevitably inherent in any

extemporaneous statement, no matter how carefully

it may be prepared. * * *

The evidence will show that this defendant did not

have a license to sell securities, and we will agree that

he did not have a license. The evidence will show

that Mr. Shott never registered a security, or anything

which these prosecuting attorneys believe to be a

security, with the Division of Securities. We will

agree that he never so registered anything purporting

to be of that character.”

And shortly thereafter counsel on behalf of the defend-

ant, Shott, said further: (R. 8)

“*e *# #

note.

which we will admit constitutes a promissory

7

The Court: “I didn’t quite get that.”

Mr. Lloyd: “I say it was reduced to a writing,

which we will admit constitutes a promissory note.”

Counsel continued in his reading and said: (R. 8)

“Now, the defendant will admit and concede precisely

what his idea, what his scheme, plan and system was

in entering into this loan transaction with Pat Sestito.

It was simply this: The defendant was loaning money

to one Leslie D. Stickler, who was borrowing it reg-

ularly from him for the purpose, according to Stickler,

of enabling Stickler to make short-term, high-interest

loans to contractors. When Shott borrowed the money

from Sestito, it was his intention: that is, Shott’s in-

tention and plan to loan this money to Stickler, and

to pay Sestito for the use of his money; that is, Sestito’s

money, one-half of the amount which Stickler had

agreed to pay Shott for the use of Shott’s money.”

We wholeheartedly agree with the law laid down by the

Supreme Court in Gideon v. Wainwright, 372 U.S. 335,

that a person charged with a crime must be accorded coun-

sel in order for that person to receive the due process of

law. We contend that to that right is the responsibility

of being bound by the distinct and formal admissions of

fact made by counsel at the trial in open court. We con-

tend that in this case, in this formal and solemn atmosphere,

the defendant, Shott, himself a lawyer, rested, and by his

silence accepted and adopted the stipulations and admis-

sions of his lawyer. The relationship of these men was

such that the words and actions of the agent were those

of the principal. The defendant was in complete accord

with the words uttered, and at no time gave the slightest

indication of rebuke or rejection. The Court accepted these

stipulations as part of the Record of the case.

The United States District Court for the Southern Dis-

trict of Ohio, Western Division, in its memorandum opin-

8

ion and order filed July 9, 1963, was also impressed by

the admissions of the defendant, and stated as follows:

(page 4)

“Petitioner has argued that the charge of the Court

was tantamount to the direction of a verdict for the

State. To the extent that there is accuracy in this

contention, it resulted from the frank admission of

the petitioner of the factual situation involved; in fact,

the most damning case against him heard by the jury

was contained in his opening statement. His admis-

sions on the record resolved most issues, but at least

one important issue was presented to the jury. That

issue was whether or not there had been a direct or

indirect offering of the securities for sale to the

public. The record contains evidence on this point,

' and it was properly submitted to the jury without

depriving petitioner of his constitutional rights.”

There can be no doubt that a defendant has the power

to waive a constitutional right. Johnson v. Zerbst, 304 U.S.

458. It has long been a law of Ohio and elsewhere that

an attorney has the power to bind his client. In Syllabus 2

of Garrett v. Hansue, 53 O.S. 482, the Supreme Court

of Ohio held as follows:

“An attorney of record has power to do on behalf of

his client all acts, in or out of court, necessary or in-

cidental to the prosecution, defense or management

of the action, and which affect only the remedy and

not the right, and this includes the power to waive

objections to evidence and enter into stipulations for

the admission of facts on the trial.”

In normal sequence, the defendant being present, his

defense counsel addressed the jury in his final argument

and stated: (R. 54)

“Now, I would like to meet head-on his allegation that

the defendant did not take the stand in this case and

9

that he is indicating his guilt because he is not taking

the stand. I will tell you why the defendant did not

take the stand in this case. Because I refused to let

him take the stand * * *”

The State contends that the defendant testified in the

trial through the lips of his counsel, and thereby waived

his constitutional privilege to refuse to testify in his own

behalf. There can be no doubt that the presentment and

comment by counsel of the defendant was a well prepared

plan participated in by the defendant. Even though the

defendant did not perform the physical act of taking the

witness stand he cannot now be heard to say that he did

not present evidence to the jury in his own behalf.

In like manner, defendant and his counsel consumed

a full day to present the final argument to the jury in

behalf of the defendant. As the defendant sat by he per-

mitted his counsel to read from the prepared final argu-

ment, during which counsel attempted to explain the

reason that the defendant did not take the witness stand.

This action of the defendant and his counsel in so doing

waived the constitutional privilege of the defendant under

these circumstances.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

MELVIN G. RUEGER

Prosecuting Attorney

CALVIN W. PREM

Ass’t Prosecuting Attorney

HARRY C. SCHOETTMER

Ass’t Prosecuting Attorney

Attorneys for Petitioner

10

APPENDIX A

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Fifth Amendment, United States Constitution:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.”

Article I, Section 10, Ohio Constitution:

“Except in cases of impeachment, cases arising in the

army and navy, or in the militia when in actual service in

time of war or public danger, and cases involving offenses

for which the penalty provided is less than imprisonment

in the penitentiary, no person shall be held to answer for

a capital, or otherwise infamous, crime, unless on present-

ment or indictment of a grand jury; and the number of

persons necessary to constitute such grand jury and the

number thereof necessary to concur in finding such indict-

ment shall be determined by law. In any trial, in any

court, the party accused shall be allowed to appear and

defend in person and with counsel; to demand the nature

and cause of the accusation against him, and to have a copy

thereof; to meet the witnesses face to face, and to have

11

compulsory process te procure the attendance of witnesses

in his behalf, and a speedy public trial by an impartial jury

of the county in which the offense is alleged to have been

committed; but provision may be made by law for the

taking of the deposition by the accused or by the state, to

be used for or against the accused, of any witness whose

attendance can not be had at the trial, always securing to

the accused means and the opportunity to be present in

person and with counsel at the taking of such deposition,

and to examine the witness face to face as fully and in the

same manner as if in court. No person shall be compelled,

in any criminal case, to be a witness against himself; but

his failure to testify may be considered by the court and

jury and may be made the subject of comment by counsel.

No person shall be twice put in jeopardy for the same

offense.”

Section 2945.43, Revised Code of Ohio:

“On the trial of a criminal cause, a person charged with

an offense may, at his own request, be a witness, but not

otherwise. The failure of such person to testify may be

considered by the court and jury and may be made thé

subject of comment by counsel.”

12

APPENDIX B

In the

UNITED STATES DISTRICT COURT

For the Southern District of Ohio

Western Division

Civil Action No. 5376

UNITED STATES OF AMERICA, EX REL.

EDGAR I. SHOTT, JR.,

Relator,

v.

DAN TEHAN,

Sheriff of Hamilton County,

Respondent.

MEMORANDUM OPINION AND ORDER

(Filed July 9, 1963.)

Petitioner was named in a two-count indictment re-

turned by the grand jury of Hamilton County, Ohio and

after trial was found guilty by a petit jury under both

counts. Having exhausted his state remedies, and certiorari

having been denied by the Supreme Court of the United

States, petitioner has instituted this habeas corpus action

to test the constitutionality of the proceeding resulting in

his conviction. The indictment was returned under the

13

provisions of the Ohio Securities Act, more commonly re-

ferred to as the Blue Sky Law (Ohio Revised Code 1707.01

through 1707.45). The first count charges the petitioner

with having sold a security without having been licensed

to make such a sale, and the second charges the sale of an

unlicensed security. Both counts deal with one sale of

a single security, and the evidence was limited to that

transaction.

The entire factual presentation at trial was contained

in the testimony of two witnesses and three documentary

exhibits. The first witness and two of the exhibits dealt

with conceded matters, establishing for the record the

facts that petitioner was not licensed under the Ohio Securi-

ties Act to deal in securities, and that the instrument

forming the basis of the indictment was not a registered

security. The remaining exhibit was that instrument, a

promissory note payable to the order of one Patrick Sestito

and made by “Shott Investment Co., By: Edgar I Shott, Jr.

[the petitioner].” Patrick Sestito was the other witness,

and his testimony dealt with his past and present relation-

ship with petitioner and the circumstances of the trans-

action.

Referring to the promissory note, the trial court charged

the jury, “on its face it is a security . . .,” and were the

issue before us we would not hesitate to concur. However,

the question is purely one of statutory interpretation and

has been laid to rest in the appellate procedures which

preceded this action.

Petitioner complains vigorously that he was deprived of

a fair trial in violation of his constitutional rights by a

portion of the prosecuting attorney's closing argument re-

ferring generally to the probability that petitioner nego-

tiated similar promissory notes to other persons. These

statements consumed a dozen lines in sixteen pages of

summation in the printed record, and their exclusion might

14

have been prudent. However, the trial court acted within

the proper exercise of discretion in permitting this argu-

ment as being based upon inferences from the testimony,

and it cannot now be said that petitioner was thereby de-

prived of any constitutional right. Without detailed

elaboration, it is pointed out that the record establishes that

Sestito went to petitioner's office with $2,000 in his pocket,

where petitioner told him “that this money was being in-

vested on financing buildings, and so forth;” that Sestito

first said he thought he “could come up with a thousand,

and then it sounded so good, I mean I come up with two

thousand;” that asked what “sounded so good,” he replied,

“the percentage, twelve and a half per cent;” that he was

shown some kind of document dealing with the history

and condition of the Shott Investment Company; and that

the note was not made by petitioner individually, but by

an investment company. In this connection, the testimony

of Sestito of a telephone call received by him from peti-

tioner's secretary on the due date of the note is interesting.

Without objection, he was permitted to testify that she

called and asked whether Sestito wanted to “draw down”

his money or “parlay” it. He elected the former alternative,

and it is hard to reconcile this line of evidence with an

intention on Sestito’s part to make a personal loan to peti-

tioner, or, in fact, with any intention other than that of

making a productive investment. To the extent that any

issue on this point is before us in this habeas corpus pro-

ceeding we find the position taken by the trial court not

to have been improper.

Various other of petitioner’s complaints are intertwined

with those that have been reviewed and are not felt to

merit individual treatment. While at this moment in the

history of Federal jurisprudence we are unsure of the

extent to which such subjects are reviewable by a District

Court in habeas corpus, since we are not of a disposition

15

differing from the state trial court no problem is presented

in this area. We now turn, however, to an issue which is

felt to be squarely presented in this action.

That issue deals with the statutory presumption under

which after a showing by the state beyond a reasonable

doubt of a sale of a security, the burden shifts to the defend-

ant to show the exempt nature of the transaction or security

by a preponderance of the evidence. Anticipating an argu-

ment, in his brief petitioner recognized the validity of

kindred presumptions created upon the showing by the

prosecution of possession of morphin, of smoking opium, of

an unlicensed still and of policy slips. Without using the

phrases, petitioner seems to attempt to make a distinction

between things malum per se and malum prohibitum.

Whether he quite reaches this argument or not, petitioner

does undertake to establish a distinction by contending that

“the single Sestito loan transaction is itself neither unusual

nor sinister,” but we find the argument to be without validi-

ty. Specifically, we hold that the statutory presumption,

as here applied, was not unlawful as violative of the Four-

teenth Amendment to the Constitution, even when con-

sidered in the light of the tests laid down in Morrison v.

California, 291 U.S. 82 (1934).

Petitioner has argued that the charge of the court was

tantamount to the direction of a verdict for the state.

[To the extent that there is accuracy in this contention,

it resulted from the frank admission of the petitioner of the

factual situation involved; in fact, the most damning case

against him heard by the jury was contained in his opening

statement. His admissions on the record resolved most

issues, but at least one important issue was presented to the

jury. That issue was whether or not there had been a

direct or indirect offering of securities for sale to the public.

The record contains evidence on this point and it was prop-

16

erly submitted to the jury without depriving petitioner

of his constitutional rights. ]

Finally, we find nothing so vague or indefinite in the

provisions of the Ohio Securities Act found to have been

violated as to ‘cause petitioner's conviction to amount to a_

deprivation of due process of law, and therefore,

IT IS ORDERED that the petition herein should be and

it is hereby dismissed, with notation of petitioner's excep-

tion.

/s/ JOHN W. PECK, District Judge

17

APPENDIX C

JUDGMENT ENTRY OF UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

(Filed November 10, 1964.)

No. 15,538

(CAPTION OMITTED.)

Before: MILLER and CECIL, Circuit Judges, and FOX,

District Judge.

APPEAL from the United States District Court for the

Southern District of Ohio.

THIS CAUSE came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Ohio, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of the

said District Court in this cause be and the same is hereby

set aside and the case remanded to the District Court for

further proceedings consistent with the opinion.

It is further ordered that Relator-Appellant recover from

Respondent-Appellee the costs on appeal, as itemized below,

and that execution therefor issue out of said District Court.

_Entered by order of the Court.

CARL W. REUSS

Clerk

18

APPENDIX D

OPINION OF UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

(Decided November 10, 1964.)

No. 15,538

(CAPTION OMITTED.)

Before: MILLER and CECIL, Circuit Judges, and FOX,

District Judge.

MILLER, Circuit Judge. Appellant, Edgar I Shott, Jr.,

a member of the bar of the State of Ohio, was convicted in

the state court of a violation of the Ohio Securities Act, gen-

erally referred to as the Ohio Blue Sky Law. In the trial at

the close of the State’s case, appellant’s counsel, being of

the opinion that the State had not made out a case, did not

call appellant as a witness or introduce further evidence,

but moved for a directed verdict. The motion was over-

tuled and the case submitted to the jury, which returned a

verdict of guilty. Appellant received a sentence of one to

five years imprisonment in the state penitentiary.

The judgment was affirmed by both the Ohio Court of

Appeals and the Ohio Supreme Court. An appeal to the

United States Supreme Court was dismissed, but was

treated as an application for writ of certiorari, which was

denied. A petition for rehearing was also denied.

19

Appellant contended in the trial court and on the ap-

peals that the Ohio Blue Sky Law, under which he was con-

victed, was invalid under the due process clause of the

Fourteenth Amendment because it set no ascertainable

standard of conduct, required no specific intent, and was so

indefinite and vague as to be void. In addition to other

defenses, he charged misconduct on the part of the prose-

cutor in closing argument to the jury in improperly com-

menting upon the failure of the appellant to testify.

Following the exhaustion of his state remedies, appel-

lant filed the present habeas corpus proceeding in the

United States District Court, which, after oral argument,

was dismissed by the District Judge, from which order the

present appeal was taken. The District Judge entered the

necessary Certificate of Probable Cause required by Sec-

tion 2253, Title 28, United States Code.

The alleged improper comment of the state prosecutor in

his closing argument to the jury about appellant's failure to

testify raises a constitutional question under the Fifth and

Fourteenth Amendments to the United States Constitution,

to which we will first direct our attention. We are of the

opinion that this issue was properly raised by the present

habeas corpus proceeding. Sections 2241-2254, Title 28,

United States Code; Rogers v. Richmond, 365 U.S. 534,

540; Fay v. Noia, 372 U.S. 391, 420-424; Irvin v. Dowd,

366 US. 717.

Without reviewing the comment of the prosecuting at-

torney to the jury on appellant's failure to testify, it is

sufficient to state that if this case had been tried in the

United States District Court for an alleged federal offense,

it would have violated appellant’s constitutional rights

against self-incrimination under the Fifth Amendment to

the Constitution of the United States. The right contained

in the Fifth Amendment that the accused in a criminal trial

in the federal court shail not be compelled to be a witness

20

against himself includes both the right not to testify and the

right that such failure to testify shall not be subject of

comment by the attorney for the prosecution. Wilson v.

United States, 149 U.S. 60; Ing v. United States, 278 F(2)

362, 367, C.A. 9th; De Luna v. United States, 308 F(2)

140, 142-143, 154, C.A. 5th; United States v. Ragland, 306

F(2) 732; 736, C.A. 4th, cert. denied, 371 U.S. 949. See

also: Johnson v. United States, 318 U.S. 189, 196-197, re-

hearing denied, 318 U.S. 801; McKnight v. United States,

115 F. 972, 982, C.A. 6th.

At the time of the briefing by the parties of this case,

their contentions were as follows: Appellee contended that

the constitutional right against self-incrimination under

the Fifth Amendment is apvlicable only to trials in the

federal courts, and that it is not applicable to trials in

the state courts. It was so held in Adamson v. California,

332 U.S. 46, rehearing denied, 332 U.S. 784; and Twining

v. New Jersey, 211 US. 78.

Article I, Section 10 of the Constitution of Ohio, provides,

in part, as follows:

“No person shall be compelled, in any criminal case,

to be a witness against himself; but his failure to

testify may be considered by the court and jury and

may be made the subject of comment by counsel.”

Section 2945.43 of the Revised Code-of Ohio contains sub-

stantially the same wording.

Appellee relied upon the foregoing Supreme Court deci-

sions and the Ohio constitutional and statutory provisions

in support of the right of the State to comment upon the

failure of appellant to testify.

Appellant contended that although there is no specific

provision in the United States Constitution granting in

express words this right to the accused in a criminal trial

in a state court, the right is nevertheless guaranteed by

21

the Due Process Clause of Section 1 of the Fourteenth

Amendment. He conceded that the Supreme Court had held

that the Fourteenth Amendment does not automatically

protect against infringement by the State of the rights in-

cluded in the first eight amendments to the Constitution of

the United States, which are protected against infringement

by the federal government. Palko v. Connecticut, 302 U.S.

319, 323-324; Knapp v. Schweitzer, 357 U.S. 371, note

5 at p. 378, rehearing denied, 358 U.S. 860. It was also

recognized that the Supreme Court had specifically ruled

that the privilege against self-incrimination granted by

the Fifth Amendment was not safeguarded against state

action by the Fourteenth Amendment. Twining v. New

Jersey, supra, 211 U.S. 78; Adamson v. California, supra,

332 U.S. 46; Cohen v. Hurley, 366 U.S. 117, 127-128, re-

hearing denied, 374 U.S. 857; Knapp v. Schweitzer, supra,

357 U.S. 371, 374-375. Appellant’s argument was that re-

cent decisions of the Supreme Court indicated that the

ruling with respect to self-incrimination would be recon-

sidered and that the Court would rule that the Fifth

Amendment’s exception from compulsory self-incrimina-

tion is also protected by the Fourteenth Amendment against

abridgment by the states.

On June 15, 1964, the day before the oral argument of

this appeal, the Supreme Court in Malloy v. Hogan, 378

U.S. 1, reconsidered its previous rulings and held that the

Fifth Amendment’s exception from self-incrimination is

also protected by the Fourteenth Amendment against

abridgment by the states.

Appellee points out in a supplemental brief that in the

Malloy case the accused was punished for contempt of

court for refusing to answer questions on the ground that it

might tend to incriminate him, while in the present case the

appellant was not called upon to testify or to answer any

questions. We find no merit in this factual distinction. As

22

pointed out hereinabove, the protection against self-incrim-

ination under the Fifth Amendment includes not only the

right to refuse to answer incriminating questions, but also

the right that such refusal shall not be commented upon

by counsel for the prosecution.

The ruling in the Malloy case is controlling. Bush v.

Orleans Parish School Board, 188 F. Pali 916, E.D. La.,

affirmed, 365 U.S. 569.

The order of the District Court is set aside and the case ‘

remanded to the District Court for further proceedings

consistent with the views expressed herein.