
    Clark v. The State of Ohio.
    (Decided July 18, 1927.)
    
      Mr. A. C. Fricke and Mr. A. Lee Beatty, for plaintiff in error.
    
      Mr. Charles P. Taft, II, prosecuting attorney, and Mr. Edward Corcoran, for defendant in error.
    
   Hamilton, P. J.

Plaintiff in error, James Clark, was indicted for second degree murder, and at the trial was found guilty of manslaughter by the jury.

Two specifications of error are presented by the plaintiff in error, and argued to the court: First, the court abused its discretion in the denial of a continuance of the trial of the cause on the application of Clark; second, the court erred in its charge defining reasonable doubt.

On the question of the abuse of discretion in denying the continuance of the trial, the bill of exceptions contains a complete record of what occurred, and, on the record, the court did not abuse its discretion in refusing the continuance, but properly protected the interests of Clark in securing him a fair trial in so far as the continuance was concerned,

Plaintiff in error takes from the charge of the. court the following phrase from a paragraph defining reasonable doubt:

“If they cannot so say a reasonable doubt exists, and it would be your duty to convict the defendant.”

Plaintiff in error claims this is equivalent to charging the jury that if a reasonable doubt exists, it is the duty of the jury to convict. The phrase is awkwardly stated, and if standing alone would be sufficient upon which to predicate, reversible error. While the phrase undoubtedly is awkward, and does not properly convey to the jury the law, yet, when considered in connection with the rest of the charge, the jury could not have been misled, and were clearly given the law in the' following, which immediately follows the phrase above quoted:

“But if you can say that you feel a firm conviction to an honest certainty of the truth of the charge, and that the state has established all the elements necessary to make out the offense, there would not be a reasonable doubt, and it would be your duty under those circumstances to find the defendant guilty. You will not, however, be justified in convicting the defendant on suspicion or on probabilities; neither is a preponderance of the evidence sufficient to convict, the defendant, but the proof must be such as to create a clear and undoubted conviction in your minds of the guilt of the defendant;' and if the evidence leaves in your minds such a doubt as to the guilt of the defendant as to deter a reasonable man to be controlled by it, such a doubt would be a reasonable one, and the defendant could not properly be convicted, for the law is too humane to demand a conviction while a reasonable doubt remains in the minds of the jury. You will be justified and required to consider a reasonable doubt as existing, if' the material facts, without which guilt could not be established, could be fairly reconciled with innocence.”

This quotation completes the full paragraph on the question of reasonable doubt, and is presented so clearly that, notwithstanding the awkwardness of the phrase quoted, the jury could not have been misled.

We find no prejudicial error in the record, and the judgment is affirmed.

Judgment affirmed.

Cushing and Justice, JJ., the latter of th,e Third Appellate District, sitting by designation, concur.  