
    Davis v. The State of Ohio.
    
      (Decided June 9, 1930.)
    
      Mr. L. E. Appleton, for plaintiff in error.
    
      Mr. Bay T. Miller, for defendant in error.
   Sullivan, J.

This cause is here on error from the common pleas court of Cuyahoga county. In the court below, plaintiff in error was tried and convicted of pocket picking, under the statute, as of November 7, 1929, and thereafter the court overruled a motion for new trial and a bill of exceptions was taken, raising as points of error that the conviction is clearly and manifestly against the weight of the evidence and that the court committed error with respect to the instructions to the jury on the subject of reasonable doubt.

As to the first question, upon an examination of the record we have come to the conclusion that we cannot disturb the verdict of the jury, for the reason that the facts were submitted fairly and impartially, and there appears from the facts as related in the record credible evidence to support the verdict, bringing into requisition the rules of evidence in criminal cases.

Whatever our opinion may be as to the strength or weakness of the evidence, it has no force as against the verdict of the jury, where there is credible evidence under the rules of criminal law to support the verdict, unless after a review of the entire evidence it appears that the verdict and judgment were clearly and manifestly against the weight of the evidence, and this we cannot say because of the positive and circumstantial evidence of a credible nature appearing in the record.

It is also claimed that the evidence is not sufficient, but it is impossible to discuss this question without applying the rules applicable to the question of the weight of the evidence, especially where it appears, as in the case at bar, that there is no legal deficiency in the record that would warrant the conclusion that the evidence was insufficient in law. Hence we come to the conclusion that, under the authority of Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683, we have no right upon review to disturb the verdict and judgment, and, while this authority cited is a civil case, yet the principle therein enunciated applies, when we keep in mind the rules of criminal law as to reasonable doubt.

It is argued that the court committed prejudicial error by not observing Section 13442-3, General Code of Ohio, which appears to make it mandatory upon the court to charge the question of reasonable doubt in the words of the statute. That statute reads (113 Ohio Laws, 179) as follows:

“A defendant in a criminal action is presumed to be innocent until he is proved guilty of the crime charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. But the effect of this presumption of innocence is only to place upon the state the burden of proving him guilty beyond reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt, because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. ’ In charging a jury the court shall state the meaning of presumption of innocence, and read the foregoing definition of reasonable doubt.”

The court had charged in the following language upon the subject of reasonable doubt, to which exception was taken:

“Now by reasonable doubt, ladies and gentlemen of the jury, is meant a doubt based upon reason. It is not a doubt based upon whim and conjection, or suspicion or prejudice. It means exactly what it says. If after considering all the evidence and weighing it you are not satisfied with the defendant’s guilt, then there is a reasonable doubt existing. On the other hand if, after considering, all the evidence and weighing it, your mind has an abiding conviction of the guilt of the defendant, then there is no reasonable doubt and you should return a verdict of guilty. And remember this, absolute certainty is all that is necessary, and you will exercise in all your deliberations the judgment of candid men and women.”

After the court delivered the above instructions, upon objection of counsel for plaintiff in error and the calling of the court’s attention to the section of the Code noted, the jury were reinstructed in the words of the section above set forth, and this we think corrected any error committed by the court in using his own language instead of that of the statute upon the question of reasonable doubt.

We have examined these charges of error, and it is our holding that they are not prejudicial to the rights of the plaintiff in error. Our holding is therefore that the judgment of the lower court must be affirmed.

Judgment affirmed.

Vickery, P. J., and Levine, J., concur.  