Opposition Brief — Joseph v. Ohio

INDEX.

a a en |

Denes SOROMTOG 2. cw eee oe ee

(1) Trial judge ate dinner with jury at hotel rs 3

(2) Divorce decree admitted in evidence... 11

(3) Court limited argument of petitioner’s counsel 13

RI ena 2 Gore as nak Sine Ties ot ae

Text Cited.

14 Am. Jur., 891, Sec. 179.......... Ter eer ne Ge

Cases Cited.

Ayrhart v. Wilhelmy, 135 Lowa, 290

Baker v. Hudspeth, 129 Fed. (2d), 779

Baker v. Hunter, 317 U. S., 681...

Barrington v. Missouri, 205 U. S., 483...

Bridge v. Hoboken, 1 Wall., 116, 143

Brooks v. State, 187 Tenn., 67.

Brooks v. Tenn., 71 United States Sup. Ct., ae

Capinola v. United States, 61 Fed. (2d), 5

Cases v. United States, 131 Fed. (2d), 916

Cox v. Commonwealth, 215 Ky., 585

a a ee i

SFr Ore OH wh oc -)

i

Decker v. State, 113 O. S., 512, 523. re ey

Dishmaker vy. Heck, 159 Wise., 572......... eee nahin

Dodge v. United States, 258 Fed., 300... ....

Dodge v. United States, 250 U. S., 660

Dreyer v. Illinois, 187 U.S., 71.............

Kmmert v. State, 127 O. S., 2385............

Fay v. N. Y., 332 U. S., 261

Gaines v. Washington, 277 U.S., 81

Gandolfo v. State, 11 O. S., 114.

Gonzales v. Ross, 120 U. S., 605. .

Hebert v. Louisiana, 272 U. S., 312, 316 ;

Kay v. United States, 306 U.S., 660................

Malinski v. N. Y., 324 U.S., 401 ba Sa ael: eater

Montana, ex rel. Haire, v. Rice, Treas., 204 U.S., 291. .

MeNabb v. United States, 318 U. S., 332

New York v. Kleinert, 264 U. S., 646, 650

People v. Kelly, 94 N. Y., 526

People v. Bradbury, 155 Cal., 808

People v. Reitz, 261 Pae., 526

Perkins v. Cranor, 338 U. S., 862

Phillips v. Commonwealth, 19 Gratt., 485, 60 Va., 485

Ray v. U.S., 114 Fed. (2d), 507

Snyder v. Mass., 291 U.S., 97...

State v. Perkins, 204 P. (2d), 207 rants

State v. Brayden, 56 O. A., 19.. Ee AR

State v. Huffman, 138 O. S., 28..............

State v. Hobbs, 134 0. S., 56........ Brier iwuel gee

State v. Adams, 141 O. S., 423.................. i

State v. Parker, 12 S. W. (2d), 428, 321 Mo., 553...

Thomas v. Iowa, 209 U. S., 258, 263.

ii

United States v. Kay, 101 Fed., 270 m3 15

Velazques v. United States, 319 U.S.,770............ 16

Voorhees v. Jackson, 10 Pet., 449....... re 5

Waldron v. Waldron, 156 U. S., 361... ... 13

Wagenman v. United States, 269 Fed., 568. 15

Wagenman v. United States, 255 U. S., 572 16

Walsh v. United States, 287 U. S., 671 14

Weaver v. State, 24 O. S., 584... 14

Wood County Commissioners v. Shinnew, et al., 10 O.

C.C. (N.S.), 54 (affrm. 80 O. S., 712) 5

Statute Cited.

NEE. oa. kaw kaa dane Ps yews ~ eae

ili

IN THE

Supreme Court of the United States

é

No. 672.

THOMAS A. JOSEPH,

Petitioner,

vs.

THE STATE OF OHIO,

Respondent.

BRIEF OPPOSED TO PETITION FOR WRIT OF

CERTIORARI.

INTRODUCTORY STATEMENT.

The record shows that in the state courts the only time

the petitioner indicated a question was involved under the

Federal Constitution, was in the notice of appeal filed in

the Supreme Court of Ohio (R., 3) stating “This appeal is

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taken to this court on questions of law and is filed on the

following grounds, to-wit: (1) In a ease involving a con-—

stitutional question under the Constitution of the state of

Ohio, and under the Constitution of the United States”; |

and in the excerpts from appellant's brief in the Supreme —

Court of Ohio (R., 5) wherein it is stated: “Appellant says

there is a constitutional question involved in this ease.”

That appellant files this case as a matter of right and

avers that his conviction on Count No. 9 of the indictment

which was affirmed by the Court of Appeals violates his

rights under Article 1, Seetion 10, of the Ohio Constitution, |

and the Sixth Amendment of the Constitution of the

United States. * * *”

At no other time throughout the proceedings in the state

courts is any reference made to a question under the Con-

stitution of the United States. The prohibitions contained

in the Sixth Amendment of the Constitution of the United

States do not apply to proceedings in state courts, but to

the procedure in the federal courts alone. 14 Am. Jur,

page 891, See. 179; Snyder v. Massachusetts, 291 U. S., 97;

State v. Perkins, 204 P. (2d), 207 (Wash.), certiorari

denied, Perkins v. Cranor, 338 U. 8., 862.

In the case of New York v. Kleinert, 264 U. S., 646, 650,

it was stated that it is well settled that this court is with-

out jurisdiction to review the judgment of a state court

by reason of a federal question which was not raised be-

low or called to the attention of or decided by the state

court.

In Montana, ex rel. Haire, v. Rice, Treas., 204 U. S., 291,

where the claim for the first time appears in the petition

for writ of error that the judgment of the state court im-

pairs the obligation of a contract, held, it comes too late to

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3

give jurisdiction over that question even though another

federal question has been properly raised and brought here,

by the same writ of error.

In Thomas v. Iowa, 209 U. S., 258, 263, it is stated that

a mere claim in the court below, that there has been a

denial of due process of law, does not of itself raise a fed-

eral question with sufficient distinctness to give us juris-

dietion to consider whether there has been a violation of

the Fourteenth Amendment of the Constitution.

In Bridge, Proprietor, v. Hoboken, 1 Wall., 116, 148, it

has been stated that:

“The true and rational rule is that the court must

be able to see clearly, from the whole record, that a

certain provision of the Constitution “ * "was

relied on by the party who brings the writ of error, and

that the right thus claimed by him was denied.”

Where it does not affirmatively appear from the record

that the accused was prejudiced by the alleged error or

was prevented from having a fair trial, the claimed error

does not constitute ground for a new trial or for the re-

versal of a conviction under See. 13449-5 G. C. (R., 20).

State v. Brayden, 56 0. A., 19. This section of the General

Code has been held to be constitutional. State v. Huffman,

138 O. S., 28, and State v. Hobbs, 134 O. S., 56.

QUESTIONS PRESENTED.

(1) The trial judge accompanied the jury and officers

designated by him to have charge of the jury, to the

Southern Hotel and ate dinner with them after the case had

been submitted for deliberation by the jury. Counsel for

the petitioner in urging this question in his petition for a

writ of certiorari (p. 4), for the first time undertakes to

4

place this question under the Fourteenth Amendment to

the Constitution of the United States; and in his brief (p,

7) in support of the petition says:

“The petition for writ of certiorari sets out in three

separate instances denials by the highest court of Ohio,

of privileges and immunities guaranteed petitioner by

the Constitution of the United States.”

This assignment of error was not included in the motion

for a new trial and was not noted in the record until after

the motion for a new trial was overruled and the petitioner

had been sentenced. In support of that statement the

respondent calls the attention of this court to the fact that

the record on page 37 showing the entry overruling the

motion for a new trial and sentencing the defendant to the

Ohio Penitentiary, is an excerpt from the bill of exceptions

page 1194; and that the record page 35 shows excerpts

from the bill of exceptions pages 1199 and 1200, in which

this question was stipulated for the first time. In other

words, the first reference to the trial judge eating with

the jury appears on page 1200 of the state record which

is six pages after the motion for a new trial was overruled

according to the state record; and it was not until the

petitioner had been sentenced to the penitentiary that an

attempt was made to show that such conduct of the trial

judge was prejudicial to the rights of the petitioner.

Under the rule in Ohio, on motion for new trial, the

petitioner had the full right to take affidavits or testimony

of jurors, if he believed he was prejudiced by the trial

judge eating dinner with the jury and the sworn officers in

charge of the jury. In State v. Adams, 141 O. S., 423, it

was held on motion for new trial, affidavits or testimony

of jurors may be received to show that unlawful com-

4)

munications were made by the court officer to the jury dur-

ing their deliberations. To the same effect, Emmert v.

State, 127 O. S., 235.

However, the verdict of the jury cannot be assailed by

mere suspicion and surmise. Baker v. Hudspeth, Warden,

129 Fed. (2d), 779 (where jurors improperly communicated

with female deputy sheriffs), certiorari denied, Baker v.

Hunter (suecessor to Hudspeth), Warden, 317 U. S., 681.

In People v. Kelly, 94 New York, 526, the court answered

a written communication of the jury and the record did

not disclose what the communication was. The court im-

plied that the harmful nature of such communication must

be shown, saying that the presumption is that there was no

violation of duty on the part of the court. No officer, with-

out procf, will be presumed to have violated his duty.

Gonzales v. Ross, 120 U. S., 605. There is no principle of

law better settled than that every act of a court of com-

petent jurisdiction shall be presumed to have been rightly

done till the contrary appears. Voorhees v. Jackson, 10

Pet., 449.

In the ease of Wood County Commissioners v. Shinnew,

et al., 10 0. C. C. (N.S.), 54, the court had some communi-

cation with the jury. The agreed statement of counsel is

that the jury wanted further instruction and that he said

he had given them all the instructions upon the law which

he was able to give and that he had nothing more to say

in addition to the charge delivered. It was held that such

action by the judge cannot be successfully attacked in a

reviewing court on the ground that it amounted to error

or misconduct prejudicial to the rights of either party.

This holding was affirmed by the Supreme Court without

opinion in 80 O. S., 712.

=

6

In the case of Gandolfo v. State, 11 O. S., 114, the trial

judge in a murder case sent to the jury on their request, in

the absence of the prisoner, a copy of the statutes of the

state, calling their attention to the three sections relating

to homicide: held, that it was an exercise of discretion on

the part of the judge which did not prejudice the prisoner,

and furnished no ground for the reversal of the judgment.

Judge Gholson in delivering the opinion of the Supreme

Court places their decision on the ground that many mat-

ters must rest in the discretion of the trial court, and if

the matter complained of infringes upon no rule of law

and merely affects the mode or manner of arriving at a

determination, and not the right or merits to be decided,

it is generally considered a matter of practice within the

discretion of the court, with which it would not be proper

for a court of error to interfere. Also that it must appear

that there has been an abuse of discretion resulting in in-

justice. <A difference of opinion as to the proper course of

proceeding would not be sufficient; the appellate court must

be able to say that the course pursued was not only im-

proper, but that it operated unjustly and injuriously to

the parties.

In the case of Dishmaker v. Heck, 159 Wise., 572, the

jury after retiring, were unable to decipher a word in the

special verdict, the foreman returned into open court and

asked the meaning of the word, to which the trial judge

replied “punitive, by way of punishment”; and it was held

there was no prejudicial error. C. J. Winslow called

attention to the strictness of the Wisconsin courts on

communications between the court and jury but stated

that it was a “little less than absurd to hold because the

trial court correctly told a juryman what a given word in

.

7

the special verdict was and what it meant there should be

a new trial of the case. Such a holding would seem to be

almost an affront to good sense.”

In the case of State v. Parker, 12 S. W. (2d), 428, 321

Mo., 553, it was held in a murder case that the court had

not committed error in discussing with the jury in a hotel

dining room, where conversation relative to additional in-

structions and giving jury “raking” could not be taken

seriously by jurors as an attempt to coerce them. It was

said by P. J. White of that court:

“That conversation with the juror was plainly a

little badinage and hurt no one.”

In the case of Ayrhart v. Wilhelmy, 185 Iowa, 290, it was

held that neither misconduct of court nor jury can be

predicated on the fact that during the deliberations of a

jury the judge was called to the jury room and questioned

by a member of the panel, when the nature of the inter-

rogatories is not disclosed and it appears they were un-

answered.

In the case of Phillips v. Commonwealth, 19 Gratt., 485,

60 Va., 485, it was held that:

“The authority of a judge who presides at a criminal

trial extends over the jury not only during the day

whilst they are in court, but after the adjournment for

the day; and it is not illegal or improper for the judge

to take charge of a juror in the temporary absence of

the sheriffs to whom the jury has been committed.”

Judge Rives, in delivering the opinion of the court, says:

“If it were possible to hold a continuous session,

there would be no necessity of confiding the jury to

anyone but the judge. Tle is the high and responsible

functionary entrusted with the conduct of criminal

trials, and bound to preserve the purity of jury trial

8

and place it beyond suspicion of all improper inter-

ference. It would be well for the protection of pris-

oners and the behaviour of juries if it were possible

for the judge to keep them. Instead of its being said,

he is the last man who should have charge of a jury,

he is the first and best, and the very one to whom the

charge is confided by law * * * But it is not pos-

sible for him to discharge the functions at all times;

hence, has grown up the custom of committing the

jury on the adjournment of the court for the day, to

the sheriff sworn to ‘keep’ them, and neither speak to

them nor suffer any other person to speak to them

touching any matter relative to the trial until they

return into court. * * *. From this theory of his

office in jury trials, it can searcely be that his over-

sight and superintendence are suspended by the ad-

journment of the court. He has many legitimate

modes while in session, through instructions and

charges to influence their finding, but no semblance

of authority to approach them corruptly; so in his re-

cess, he can have his eye upon them and exert a super-

intendence over them and their custodians so as to

maintain the purity of the trial and the sanctity of

their deliberations. Far distant be the evil day, when

corruption shall have so soiled the bench and tainted

the streams of justice as that the accidental or neces-

sary presence of the judge with a juror shall not be

received as a fair presumption that no wrong was done

or permitted, but on the contrary, shall be accepted as

proof of tampering. When that state of opinion shall

prevail, all respect for the courts, all confidence in the

administration of justice, all reverence for authority

will have forsaken that department of the publie serv-

ice, usually deemed the last and best bulwark of public

virtue and morals.”

In Dodge v. United States, 258 Fed., 300, it was held the

trial court’s improper action in privately advising the jury

that they might convict under a certain count is not re- |

9

yersible error, where no information was given which was

not contained in the original charge. The court said it is

evident that no possible harm resulted or could result

therefrom. A writ of certiorari was denied in Dodge v.

United States, 250 U. S., 660.

In the case of Snyder v. Massachusetts, 291 U. S., 97,

this court held the state may regulate procedure of its

courts in accordance with its own conception of policy and

fairness unless it offends some principle of justice ranked

as fundamental; that trial by jury may be abolished con-

sistently with the Fourteenth Amendment; and that this

amendment does not assume defendant the privilege to be

present at a bare inspection by the jury, as the view by

the jury is not a “trial” nor any part of a trial in the sense

in which a trial was understood at common law. To same

effect see Perkins v. Cranor, Supt., 338 U. S., 862, where

certiorari was denied. In the case of Snyder v. Massa-

chusetts, supra, this court further held that the constitu-

tional rights of the defendant charged with murder are

not impaired by the judge telling the jury that the view,

from which the defendant excluded, was a part of the

evidence; and that the presence of the defendant is a con-

dition of due process under the Fourteenth Amendment to

the extent that a fair and just hearing would be thwarted

by his absence and to that extent only.

In the ease of Gaines v. Washington, 277 U. S., 81, the

petitioner had been sentenced to death for murder, he ob-

jected that he did not have a public trial; and it was held

hy this court that the Sixth Amendment (on public trial)

does not apply to a state criminal prosecution; and that

the exclusion of the public as against due process, is not

presented by a record showing only an oral announcement

10

of the trial judge that the public would be excluded which

was not carried out; and it was further held by this court

that in criminal cases brought from the state courts on

frivolous objections, the mandate will be ordered issued

forthwith on denial of certiorari.

In Ray v. U.S., 114 Fed. (2d), 507, after the defendant

had been found guilty, the jury inquired if a leniency

recommendation were proper and the judge sent word by

the deputy marshal that it would not be improper, the de-

fendant was not present, this court held, if there was any

evidence of a substantial nature that the communication

influenced the jury or in any respect was prejudicial to the

appellant, there should be a reversal, but that the record

in this ease convinees us that the incident was harmless.

Certiorari was denied in Ray v. U.S., 311 U.S., 709.

In Fay v. N. Y., 332 U. S., 261, a statute was involved

which authorized the selection of special or so-called “Blue

Ribbon Juries” in certain cases, and this court held, these

are local matters with which the local authority must and

does have considerable latitude to cope, for they affect the

administration of justice which is a loeal responsibility;

such statute does not violate the due process clause of the

Fourteenth Amendment; that the commandments ef the.

Sixth and Seventh amendments, which require jury trial

in criminal cases, are not made applicable to the states by

the due process clause of the Fourteenth Amendment; and

that the funetion of this court under the Fourteenth

Amendment with reference to state juries is not to pre-

scribe procedures but is essentially to protect the integrity

of the trial process by whatever method the states see fit

to employ; and beyond requiring conformity to standards

of fundamental fairness that has won legal recognition,

11

this court adheres to a policy of self restraint in interpret-

ing the Fourteenth Amendment and will not use that

amendment to impose uniform procedure upon the several

states whose legal systems stem from divers sources of law

and reflect different historical influences.

In Dreyer v. Illinois, 187 U. 8., 71, in a criminal ease the

jury retired to consider its verdict but the bailiff in charge

was not sworn as required by statute, and objection was

first raised on the motion for a new trial, it was held by

this court, that the objection was not in time, and pre-

sented no question of a federal nature, but was an adjudi-.

cation simply of a question of criminal and local law, and

did not impair the constitutional guarantee that no state

shall deprive any person of liberty without due process

of law.

(2) The second question presented by the petitioner, is

the claim that he was denied his right to be confronted by

witnesses against him, because the divorcee decree in the

case of Wehr v. Wehr was admitted in evidence. Said

decree recited in substance that on the evidence the court

found the plaintiff at the time of filing her petition “was

a bona fide resident of Franklin county” and the petitioner

was being tried in a criminal case on a charge of subor-

nation of perjury in the Wehr divorce case. Thus for the

first time counsel for the petitioner undertakes to be more

specifie than just referring to the Sixth Amendment to the

Constitution of the United States. “The provision of the

Federal Constitution (Sixth Amendment on the right to

confront witnesses) does not apply to proceedings in the

state courts, but to the procedure in the federal courts

alone. Nor does due process of law as guaranteed under

the Fourteenth Amendment to the Federal Constitution

12

require that the right to confront witnesses, which is ex-

pressed in the Sixth Amendment be accorded to defendant

in a state court.” 14 Am. Jur., page 891, See. 179.

Exhibit K-2, which is in question is shown on page 39

of the record and discloses that the petitioner, Thomas A.

Joseph, was attorney for the plaintiff, Pearl Wehr, in that

divorcee case. It must therefore not be overlooked that

this divorce decree was the handy work of the defendant

himself. He not only prepared it but secured the approval

of the court and filed it as a part of the record in that case.

The usual objection raised is that the defendant on trial

for perjury was not a party to the proceeding in which the

divorce decree was entered. Certainly, this reason has no

application to the instant case where petitioner himself

prepared the entry that he now complains of as being

prejudicial to him when it was admitted in evidence. In

any event such divorcee decrees are admissible not to es-

tablish the falsity of the testimony, but as showing the

ceiving of the testimony and its materiality. People v.

Bradbury, 155 Cal., 808 and People v. Reitz, 261 Pac., 526.

In the case of Barrington v. Missouri, 205 U. S., 483, the

state offered in evidence the statement made by the de-

fendant following his arrest, over objection by the defend-

ant, and in a rehearing before the Supreme Court of Mis-

souri, defendant asserted the admission of such evidence

violated Amendment V of the Constitution of the United

States, as it compelled the defendant to become a witness

against himself, and this court held, in a criminal case,

rulings of the state courts in regard to admission of evi-

dence afford no basis for holding the defendant was not

awarded due process of law; and that Article V of the

amendment to the Constitution does not operate as a re-

13

striction on the powers of the state but solely upon federal

government. See to same effect, Malinski v. N. Y., 324

U. S., 401.

Counsel for the petitioner cite the case of Waldron v.

Waldron, 156 U. S., 361; but that case is not controlling

in the instant case, as the Waldron case originated in a

Cireuit Court of the United States and the United States

Supreme Court has much more control over proceedings

from a federal court than it does over criminal cases in

tlie state courts, Malinski v. New York, 324 U.S., 401. In

MeNabb v. United States, 318 U. S., 352, it was held that

the United States Supreme Court in the exercise of its

authority over the administration of justice in the federal

courts has formulated applicable rules of evidence; but it

ix recognized that the power of this court to undo convic-

tions in state courts is limited to the enforcement of those

“fundamental principles of liberty and justice,” Herbert y.

Louisiana, 272 U. S., 312, 516 and Malinski v. New York,

324 U. S., 401.

(3) The third question presented by the petitioner is

that he was prejudicial and prevented from having a fair

trial since his counsel asked for two hours for argument

and the court only granted them one hour and a half.

The record discloses that this alleged error was pre-

sented to the trial court after the motion for a new trial

had been overruled and the petitioner sentenced to the

Ohio Penitentiary, and consequently was not one of the as-

signments of error set up in the motion for a new trial.

This is borne out by the fact that the record discloses on

page 87 that the entry overruling the motion for a new

trial and sentencing the petitioner is an excerpt from the

hill of exceptions, page 1194, while page 55 of the record

14

discloses that the stipulation as to the time limitation for

argument appeared on page 1199 of the bill of exceptions,

In other words, the alleged error involving limitation of

argument is set up on page 1199 of the bill of exceptions

in the state court while the entry overruling the motion for

a new trial and the sentence of the court appears on page

1194 or six pages before the alleged error was inserted in

the record.

The record further discloses that no objection was taken

at the time the limitation on argument was made by the }

court, and the record fails to disclose that at any later

time counsel for the petitioner requested further time from

the court if they felt that more time had been found nee-

essary. The alleged error on limitation of argument hav-

ing not been made a part of the motion for a new trial,

plainly discloses that this was merely an afterthought fol-

lowing the sentence of the petitioner to the Ohio Peni-

tentiary.

Counsel may not apparently agree or acquiesce by fail-

ure to object, in the allotment of time for argument and ©

afterward complain that the time was too short, Capinola

v. United States, 61 Fed. (2d), 5, certiorari denied in Walsh

v. United States, 287 U. S., 671.

Accused is entitled to only a reasonable time for the

argument of his cause—not a reasonable time for every

attorney he might wish to defend him, Cox v. Common-

wealth, 215 Ky., 585.

In the case of Weaver v. State, 24 O. S., 584, Judge

White says:

“Full time should be allowed for the fair discussion

and presentation of the case. What might be reason-

able in one case would be unreasonable in another. In

the present case the action of the court below shows

no just ground for our interference.”

15

It is objected in the instant case that there were numer-

ous exhibits to be considered, but it can readily be seen by

Exhibit K-2 (R., 39) that these exhibits would all be pretty

much of the same pattern, such as the divorce case file,

the petition and the decree, both of the latter having been

prepared by the defendant himself; and this case involved

the testimony of the various divorce clients of the peti-

tioner, and centered around testimony as to their pre-

tended residence in Franklin county. In the case of Decker

v. State, 113 O. S., page 512, 525, Judge Allen states:

“These authorities lay down the rule that in the

absence of statute the trial court in its sound disecre-

tion may properly limit the time consumed by counsel

in argument, and that this diseretion will not be inter-

fered with by the appellate court, unless the time of

argument in trial was made so short as manifestly to

deprive counsel from presenting the case fully and

fairly.”

In the case of United States v. Kay, 101 Fed., 270, in-

volving twenty-five counts in an indictment, error was as-

signed on restricting counsel’s time in summation, and it

was held, this is always a matter to be disposed of by the

exercise of a sound discretion in the course of a trial. Cer-

tiorari was denied in Kay v. United States, 306 U.S., 660.

In Wagenman vy. United States, 269 Fed., 568, the trial

court limited argument to the jury to fifteen minutes on

each side, and when defense counsel complained this time

Was insufficient, the court observed: “You have been too

long putting it (the case) in.” Held: While it may well

he that a somewhat longer allowance would have been

better, the court was not convineed that the defendant was

prejudiced by this limitation. There is much to be said in

favor of the court’s action. We are unable to say that the

PEN AS ae Y keen ALR, IPERS VATE YEE NIL CK I 2S LENIN B A SERIF Bel a MM Aa Mane EP FT

16

court abused its diseretion. Certiorari was denied in

Wagenman v. United States, 255 U. §., 972.

In Brooks vy. State, 187 Tenn., 67, the trial court allowed

fifteen minutes on each side for argument, held by the

Supreme Court of Tennessee that it could not say record

shows abuse of discretion by trial court. Certiorari denied

in Brooks v. Tenn., 71 United States Supreme Court, 21.

In Cases v. United States, 131 Fed. (2d), 916, in-

volving a trial in Puerto Rico on violating the Federal Fire-

arms Act, and twenty minutes for oral argument was al-

lowed, held, not an abuse of discretion by the trial court.

Certiorari denied in Velazques v. United States, 319 U.S,

770.

CONCLUSION.

Counsel for the respondent respectfully submits to the

court that this being a criminal case brought from the

Supreme Court of Ohio, on objections that are without

substantial merit, certiorari should be denied and the man-

date ordered issued forthwith.

Respectfully submitted, ;

RALPH J. BARTLETT,

Proseeuting Attorney, Franklin County, Ohio,

Court House, Columbus 15, Ohio,

Attorney for Respondent.