
    Hanus v. The State of Ohio.
    (Decided March 26, 1928.)
    
      Messrs. Bartholomew, Beeper & McGill, for plaintiff in error.
    
      Mr. 8. 0. Hirstius, for defendant in error.
   Sullivan, P. J.

This case is here on error from the criminal branch of the municipal court of the city of Cleveland, wherein, upon affidavit, the defendant was convicted for removing certain parts, enumerated in the general statute, belonging to an automobile, without the owner’s consent, and one of the points of error is that in law the affidavit was insufficient upon which to base a conviction, for the reason that the word “unlawful” was omitted from the affidavit.

We do not think this position is well taken, for the reason that the phrase, “without the consent of the owner,” is equivalent to the inclusion of the word “unlawful,” and especially where the phrase appears, “contrary to the statutes in such cases made and provided. ’ ’ Hence we think that there is ho error under this assignment.

We now come to review the evidence upon the question that, under the rules of criminal law, the conviction must be had beyond the existence of a reasonable doubt, which must appear reasonably from the record, and upon an examination of the same we have come to the conclusion that the evidence lacks that degree of probability and moral certainty which must characterize evidence in criminal cases, to the end that a verdict of guilty may be had, and be sustained by a reviewing court.

We find that the prosecuting witness was a brother of the defendant, and we naturally come to the conclusion by reason of this relationship that there must have been an unnatural state of feeling against the defendant on the part of the prosecuting witness, and for this reason we cannot give the evidence of the brother that degree of credence that should necessarily characterize a record in a reviewing court, the conviction below having been tinctured with a motive that must have at least partially existed because of the degree of antipathy that permeated the feelings of the prosecuting witness, in consequence of which the testimony which appears in the record from him lacks that credibility which we think ought to exist in the testimony that forms the basis of a conviction in a criminal case.

Our analysis of the evidence is based upon the reasoning in the case of Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683, the syllabus of which we quote iu support of our views:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.”

Thus holding, the judgment of the lower court is hereby reversed as contrary to the weight of the evidence and law, and plaintiff in error is discharged.

Judgment reversed.

Vickery and Levine, JJ., concur.  