
    No. 957
    STATE v. DAWSON In Re Exceptions of the Prosecuting Attorney of Muskingum County
    No. 19356.
    Supreme Court
    Motion for leave to file bill of exceptions. Dock.
    Sept. 30, 1925;
    3 Abs. 595.
    1235. VERDICT—Can court direct verdict for defendant in a criminal case, if there is not entire failure of proof as to any essential element of the crime.
   E. T. Dawson purchased a Dodge automobile from the A. D. Gorrell Motor Co. The value and agreed price was $575 of which $50 was paid in cash, to which sum of $575, 10% was added for insurance, etc., with a note given for $582 secured by chattel mortgage, signed, delivered, filed and recorded according to law.

Dawson afterwards removed the car to Chicago-, Illinois; and upon discovering his whereabouts, the Company notified him that he had removed a mortgaged automobile without the consent of the mortgag-ee. Dawson wrote, promising to return it within a few days. The automobile was not returned and a warrant was issued for Dawson’s arrest, but he could not be found. He was finally located in West Virginia, arrested and returned to Zanesville, about Apr. 15, 1925.

Dawson was charged with having removed mortgaged personal property from Ohio, without consent of the owner with intent to defraud. The case was instituted in the Mus-kingum Common Pleas, and upon close of the State’s case, Dawson moved that the court arrest testimony from the jury and direct the jury to return a verdict for him.

The court in granting the motion held:

“There is no necessity for this court letting this case go to this jury because under the evidence the state itself has produced here; and if you should or would, but I don’t think you would, so render a verdict of guilty, I could not let such a verdict stand. There is absolutely no evidence here under the State’s testimony that could or would convict this man. There ought never to have been any indictment of this man. Prepare a verdict of ‘Not Guilty’ and I direct you as a jury to go to your room and sign that verdict.”

The case was taken to the Supreme Court on motion for leave to file a bill of exceptions and it was claimed that: “A party is entitled to the opinion of the jury upon facts tending to prove his case if there is some evidence tending to prove each of the material averments of the petition, even though the evidence is so slight that the court would feel called upon to set aside the verdict rendered upon such insufficient evidence.” 38 OS. 389, 393.

It is further contended that “In criminal cases, a question for the jury must be left for the jury. Unless there is an entire failure of proof as to any essential element of the crime, the court is not authorized to direct a verdict for the defendant.” State v. Gross, 91 OS. 161.  