
    Lambert et al. v. The State of Ohio.
    
      Criminal law — Charge to jury — Value of circumstantial evidence —Hearsay evidence — Information of conspiracy to commit crime.
    
    1. A charge of the court, commenting upon and placing undue weight upon the credibility of circumstantial as compared with direct evidence, is error.
    2. Where the defendants have given direct testimony relating 10 and denying the crime charged, and the state relies on circumstantial evidence for conviction, a charge comparing the quality of such evidence, in the following language, “People lie on the stand or make mistakes, but when you find a circumstance that is proven to be a fact, then of course there is no getting away from the fact,’’ is erroneous.
    3. A witness for the state testified in chief, against objection, that he had information from another that a defendant had entered into a deal to commit the crime charged. This was purely hearsay evidence and its admission was error.
    (No. 17121
    Decided May 31, 1922.)
    Error to the Court of Appeals of Ross county.
    Plaintiffs in error were jointly indicted, tried and convicted of breaking into a railroad car with intent to steal certain personal property of the railway company. The judgment of conviction was affirmed by the court of appeals, whereupon error was prosecuted to this court.
    
      For conviction reliance was placed by the state on evidence wholly circumstantial, tending to show the appearance of the plaintiffs in error in the vicinity of the breaking. In its general charge to the jury, in treating that character of evidence, the court stated to the jury:
    “When people steal things or do acts, commit crimes, they don’t tell anybody of course. A person going out to break open a car or to steal cigarettes or anything else wouldn’t go and tell anybody to watch them, nor they wouldn’t take any band along or music, to let people know they were there, and that is the case with all crimes. People commit them in secret. That is the very reason why the law says that circumstantial evidence is proper evidence. And sometimes it is more convincing than any other evidence. Circumstances don’t lie. People lie on the stand, or make mistakes, but when you find a circumstance that is proven to be a fact, then of course there is no getting away from the fact * * * You judge people on the stand as you judge them in everyday life, and you should decide this case not simply as a juryman, don’t understand that while you are sitting here just simply as a juryman you are any different from what you are otherwise. You have your own individuality and you must carry it into the jury room and go in there and decide in there just as you would decide if you were on the street. You are no different as a juror than you are as a citizen.”
    In the course of the trial, to prove its case, the state offered F. C. Stewart as a witness. Stewart testified that he was an employe of the railway company and knew Conrad, one of the defendants; that Stewart had employed Conrad as a guard in the railroad yards at Columbus, and while so employed, some time prior to the crime charged, Conrad had stated to the witness that the defendant Lambert and another by the name of Grubb had approached him for the purpose of going in with them on a deal to steal cigarettes, and that about a couple of weeks later he discharged the defendant Conrad. In his examination in chief, when asked the reason for such discharge the following colloquy occurred:
    “Q. Why? A. Well, I had information that he was into this — ■
    “ (Mr. Tinker) We object.
    “ (By Court) Why do you think that is objectionable ?
    “(Mr. Tinker) A man can’t say he had information that a man being tried, information that he was guilty of some crime.
    
      “(By Court) He doesn’t say he was guilty of the crime. He says that is the reason he let him off. That is a different proposition. The objection is overruled. To which ruling of the court counsel for the defendants excepted.
    “Q; (By Mr. Phillips) Just state why you let him off? A. I had information that he was into this deal with Lambert and others that are not under trial for stealing these cigarettes.”
    Counsel for the defendants moved to rule out the answer, which motion the court overruled, to which ruling of the court counsel for the defendants excepted.
    “(Mr. Tinker) We make this motion on behalf of Conrad and also on behalf of Lambert.”
    Thereupon the court overruled the motion.
    
      
      Mr. Joseph McGhee; Mr. Louis D. Johnson; Mr. E. A. Tinker and Mr. Waldo McKenzie, for plaintiffs in error.
    
      Mr. John P. Phillips, Jr., prosecuting attorney, for defendant in error.
   Jones, J.

The state relied wholly upon circumstantial evidence to prove its case. It was so stated to the jury by the court in its charge treating the feature of circumstantial evidence, as quoted in the statement of facts. The charge of the court is more thap a comment upon the character of circumstantial evidence. It is argumentative and resembles rather the plea of an advocate who seeks conviction on behalf of the state. Bearing in mind that these persons were charged with breaking into a car and stealing cigarettes therefrom, observe that the court said to the jury: “A person going out to break open a car or to steal cigarettes or anything else wouldn’t go and tell anybody to watch them.” This assumes not only that the car was broken open, but that the cigarettes were stolen, and, spoken in connection with the balance of the charge quoted, clearly intimated to the jury that the circumstantial evidence introduced against the defendants was strongly probative, and undoubtedly influenced the jury in its verdict. The court had properly charged the jury that if the circumstantial evidence excluded every reasonable hypothesis other than guilt that it was entitled to the same weight as direct testimony, and that if such circumstances could be reasonably reconciled with innocence the defendant might be acquitted. It is proper to charge the jury that a criminal act may be shown by circumstantial evidence, but it is wholly improper to place undue weight upon circumstantial evidence in a particular instance by comparing it with the value of direct evidence. The rule generally adhered to is stated in 16 Corpus Juris, 944, Section 2315, as follows:

“In those jurisdictions in which thé determination of the weight and credibility of evidence is committed solely to the jury, a charge which comments upon the weight or credibility of circumstantial evidence in comparison with direct evidence, * * * is improper as encroaching upon the province of the jury.”

In this connection the jurors were told that they might carry their own individuality into the jury room and “decide in there just as you would decide if you were on the street.” This portion of the charge was also erroneous, as it might have a tendency to absolve the jurors from the duties they were-to perform under their oath in passing upon the sworn evidence in the case. In another portion of the charge the court said to the jury: “When people steal things or do acts, commit crimes, they do not tell anybody of course. A person going out to break open a car or to steal cigarettes or anything else wouldn’t go and tell anybody to watch them.”

Bearing in mind that these defendants were charged with breaking open a car and stealing the cigarettes in question, this charge was both erroneous and prejudicial. It contained an assumption connecting the defendants with the crime charged, and while it might be excusable, if used by counsel for the state, it is wholly unwarranted when used by the trial judge. The language used by the trial court in its charge to the jury was of such charaeter that a reviewing court cannot place its stamp of approval thereon, and its use was therefore prejudicial to the defendants who are on trial.

On the trial the state offered one F. C. Stewart as a witness', who testified in chief that he had information that Conrad with others had been in this deal to steal the cigarettes. Testimony in chief of a witness for the state that the witness had information that the defendant had engaged in a deal with others to steal the cigarettes which defendant was charged with stealing in the indictment is hearsay and incompetent. In its opinion the court of appeals found error in the admission of this testimony, but evidently thought it was not prejudicial.

In his brief the prosecuting attorney does not seem to controvert the fact that the testimony so admitted was erroneous, but insists that the question was not properly saved on the record in that the objection made by the defendant came too late. The colloquy between the court and counsel, as shown in the statement of facts, discloses that the defendant made his objection in the first instance to the question asked, which brought about the erroneous statement of the witness, and later moved the court to expunge the answer of the witness.

The judgment of the court of appeals is reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Judgment reversed.

Johnson, Hough, Robinson and Matthias, JJ., concur.

Marshall, C. J., took no part in the consideration or decision of the case.  