
    CORPUS DELICTI.
    Circuit Court of Hamilton County.
    Max Premack v. State of Ohio.
    Decided, July 18, 1908.
    
      Criminal Law — Corpus Delicti — Charge of the Court — Erroneous Assumption by the Court That a Grime Occurred — Province of the Jury Invaded.
    
    Where a defendant enters a plea of not guilty, he puts in issue all the material facts, including the corpus delicti, and a charge to the jury in such a case to the effect that the theft of the goods was not disputed or open to controversy is an evasion of the province of the jury and constitutes reversible error.
    
      Thomas H. Darby, Louis P. Pink and Eugene Adler, for plaintiff in error.
    
      Froome Morris, contra.
    Smith, J.; -Swing, P. J., and Giffen, J., concur.
   The grounds of error relied upon by the plaintiff in err-or are —first, the court erred in admitting testimony of a prior larceny; and second, the court erred in its charge -to the jury.

As to the first we do not think the testimony admitted by the trial court -and objected to by plaintiff in error disclosed a prior larceny -on the part of the defendant, but that it was properly admitted as tending to show guilty knowledge on the part of the plaintiff in error that -the property, for receiving which he was charged, was stolen. Besides the record does not disclose an objection and proper exception to the substance of the testimony, but rather to the time of its introduction by the state.

Second. We think there was error in the charge of the court in stating to the jury that “certain facts were not disputed and not open to controversy,” that is, “does not controvert nor open •to controversy that the goods or some of them set forth in the indictment were stolen at the time alleged from a freight car belonging to the Cleveland, Cincinnati, Chicago & St. Louis Railway Company.”

The -plea of not guilty of the defendant put in issue all material facts to be proven by the state, and one .of the facts thus to be proven was the corpus delicti. The defendant did not take the stand in his own behalf, and he did not by his testimony or otherwise as shown by the record admit the claim of the state as to the body of the crime. This was an -issue to be tried by the jury and not by the court. In substance the trial court -told the jury that the crime of larceny had been committed, and the statement -also would tend to fortify the evidence given by the accomplices in -the case who testified on behalf of the state -to the commission of the crime, where such evidence, -as the court properly instructed the jury, was to be.scrutinized with care. It is the province of the jury to determine whether or not a crime has been committed, and if it is has then the time and manner of it, as well as who are the perpetrators. Morgan v. State, 48 O. S., 371.

For the above err-or of the court the judgment will be reversed, and new trial granted.  