
    Weitz v. The State of Ohio.
    (Decided May 31, 1934.)
    
      
      Messrs. Day & Day, for plaintiff in error.
    
      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Charles J. McNamee, for defendant in error.
   Ross, J.

This is a proceeding in error, brought to reverse a judgment of the Court of Common Pleas of Cuyahoga county, wherein the defendant in that court, Leonard E. Weitz, was sentenced upon conviction of a violation of Section 13190, General Code.

The first assignment of error is that upon the undisputed evidence in the record the plaintiff in error committed no violation of Section 13190, General Code. That section is as follows:

“Whoever, being a member of a board of directors of a building and loan association or savings association, as provided by law, certifies to, or makes a false entry on a book, report or statement of or to such association, with intent to deceive, injure or defraud it or another company, body politic or corporate or person, or to deceive any one appointed to examine the affairs of such association, shall be imprisoned not less than one year nor more than ten years.”

The indictment is as follows:

“The State of Ohio, Cuyahoga County, ss.:
“Of the term of January in the year of our Lord one thousand nine hundred and thirty-three:
“The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO,
“Do Find and Present, That Leonard E. Weitz, F. L. Yost, T. B. Llewellyn and Samuel Bernstein on the 31st day of December 1928 at the County aforesaid, being members of the Board of Directors of a building and loan association or savings association as provided by law, to-wit: The Commercial Savings and Loan Company, certified to and made a false report and statement of The' Commercial Savings and Loan Company with reference to its resources, assets and liabilities in an annual report of The Commercial Savings and Loan Company to the Department of Commerce, Division of Building and Loan Associations of the State of Ohio, with intent to deceive, injure or defraud persons in the City of Cleveland, the identity of said persons to this Grand Jury unknown, and with intent to deceive anyone appointed by the Department of Commerce, Division of Building and Loan Associations to examine the affairs of the said The Commercial Savings and Loan Company, the said report being false in the following particulars, to-wit: that the amount of cash on hand was Sixty-eight thousand Five Hundred One Dollars and Fifteen Cents ($68,501.15) instead of Ninety-eight Thousand Five Hundred and Twenty Dollars ($98,520.00) as set forth in said annual report, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The record shows that the false certificate was made by the plaintiff in error, not as a director, but as secretary. The conclusion of the Supreme Court in State v. Williams, 104 Ohio St., 232, 135 N. E., 651, is directly in point. The procedure in the Williams case was appropriate to the instant case. The secretary was there indicted for perjury, under the general statute. Section 13190, General Code, as held in the Williams ease, is not appropriate for an indictment of a secretary for a false report made by him as such.

The second assignment of error is that the prosecutor was guilty of gross misconduct, constituting prejudicial and reversible error. A statement of only part of what occurred is sufficient to justify this conclusion on our part.

The prosecutor said:

‘ ‘ Three defendants have been discharged, and I say to you honestly that I am very happy that they have been discharged; I never felt that they were guilty. One defendant remains, and I say to you just as honestly that I feel he should remain, and that he is guilty # *
Mr. Day: “Just a moment, please; I ask the court at this time to withdraw a juror and continue the trial of this case upon the ground that a statement by any prosecuting attorney that he believes any defendant is guilty is misconduct, and has been so held over and over again.”
Mr. McNamee: “I am going to support my reason for so stating; no misconduct in that statement.”
Mr. Day: “I want a ruling on the motion.”
The Court: “Do you care to be heard?”
Mr. Day: “No, I don’t care to be heard.”
Mr. McNamee: “I have a right to state my belief, your Honor, and while I think the motion is rather in the nature of a strategic move — ”
The Court: “Motion overruled.”
Mr. Day: “Exception.”

And, again:

“Why did he come here? I think Donald Schafer came here for two reasons; first, that being a man of some spirit, and some pride, he realized that when this trial went On if he weren’t here to tell his story that the defense would lay everything at the feet of Donald Schafer, and I think also that Donald Schafer, having in mind those thousands of people whose futures were wrecked by the failure of this company, brought about by — ”
Mr. Day: “Just a minute; I object on the ground that there is no evidence in this case that the future of thousands of people was wrecked by the failure of this company, and ask the Court at this time to withdraw a juror and postpone the trial of the case on the ground of the misconduct of the prosecuting attorney.”
The Court: “Overruled.”
Mr. Day: “Exception.”
Mr. McNamee: “I have a right to comment, having in mind who lost their life savings in the institution — ”
Mr. Day: “Same motion, Judge, on the same ground.”
The Court: “Overruled.”
Mr. Day: “Exception.”

A much milder expression was held prejudicial error in the case of State v. Thayer, 124 Ohio St., 1, 176 N. E., 656, 75 A. L. R., 48. The syllabus in that case is:

“The trial court, in a criminal case, appointed an able lawyer of high personal character and good reputation, well known to the jury, as special counsel to assist the prosecuting attorney in the trial of the case. That special counsel, in an address to the jury, said: ‘Now, I can say this to you, Ladies and Gentlemen of the Jury, as an attorney, I probably would in some cases, defend a man even though he were guilty, and do everything that I could to see that he got all his legal rights as a defendant, but I will also say, and I am saying it from the bottom of my heart, that unless the investigation that I would make before giving my consent to go into a case as special prosecutor, convinced me that I was justified in taking that side of the case, I would never — I would never accept the appointment to prosecute a man that I believed from the investigation was innocent of the charge.’ Counsel for the accused promptly objected and moved the court order a mistrial; thereupon the prosecuting attorney said: ‘We feel that it is entirely just in the light of the evidence.’ The court overruled the motion for mistrial and exception was saved.
“Held: The statement of special counsel to the jury was misconduct, highly prejudicial to the accused, and the action of the trial court in overruling the motion of accused for- a mistrial was prejudicial error which, necessitated a reversal of the judgment entered in that court. ”

A further assignment of error refers to the charge of the.court. The court charged:

“To constitute the offense charged, the intent to do the wrong or commit the crime, and the performance of the act or commission of the wrong in pursuance of the intent, must he established; and the intent and the act must occur in point of time. A man may form an intent to commit a crime long before it is actually committed, but this intent must exist at the time the crime was in fact committed, for no man can be criminally punished for an act in which his mind does not concur at the time the act was committed. Intent may be said to be a state of mind in respect of intelligent volition, that is, fixing the mind upon the act and thinking of it as an act to be performed at the time or at some future time.
“The law presumes that every sane person intends and contemplates the natural, ordinary and usual consequences of his own voluntary acts, unless the contrary appears from the evidence; or, to state the proposition differently, it is a well-settled rule of law that a man, a voluntary agent acting upon motives, must be presumed and held to intend and contemplate the natural and probable consequences of his own acts.”

In the case here the intent to defraud was a definite, integral part of the crime alleged in the indictment. It was not a question of general intent. It was a specific intent that must be proved. To permit such a presumption as that suggested by the court to prevail is to precipitate a collision of presumptions which can only bring confusion to the minds of the jurors. The defendant is at all times presumed to be innocent. This presumption applies to every necessary and specific element of the case of the state. To say, therefore, that having proved all the other elements of the crime a presumption of guilt as to the final element of intent exists, is to state a confusing contradiction which even in the minds of those skilled in the law would he an anomaly. See 1 Ruling Case Law, 65, Section 3; 8 Ruling Case Law, 61, Section 11; Crobaugh v. State, 45 Ohio App., 410, 417, 187 N. E., 243.

The charge was erroneous as applied to the facts of this case, and constituted error prejudicial to the rights of the plaintiff in error.

Our conclusion upon these assignments of error renders it unnecessary to consider other assignments.

The plaintiff in error is entitled to a discharge, and a judgment may he made accordingly.

Judgment reversed.

Hamilton, P. J., concurs.

Williams, J., concurs in judgment.

Hamilton, P. J., and Ross, J., of the First Appellate District, and Williams, J., of the Sixth Appellate District, sitting hy designation in the Eighth Appellate District.  