
    Sandoffsky v. The State of Ohio.
    
      (Decided September 17, 1928.)
    
      Mr. Henry Galen, for plaintiff in error.
    
      
      Mr. Edward C. Stanton, prosecuting attorney, for defendant in error.
   Sullivan, P. J.

The plaintiff in error, Herman Sandoffsky, was indicted for burglary and larceny under two counts by the grand jury of Cuyahoga county, and upon trial in the comm on pleas court the jury returned a verdict of guilty as-to the charge of burglary.'

The place burglarized was a hardware store located at 4485 Broadview road, Cleveland, Ohio. A motion for a new trial was heard and overruled and sentence under the law passed, and the case is here for review upon the question of the weight of the evidence, and the instructions of the court.

As to the weight of the evidence we have reviewed the record and have come to the conclusion that, while the evidence is conflicting, as in nearly all trials, it is of such a credible nature that under the rules of law guiding reviewing courts the, verdict cannot be disturbed, and this conclusion is reached having in mind the rules of criminal law with respect to evidence, that in its nature it must be beyond the existence of a reasonable doubt as to all material and essential 'elements of the crime.

The evidence to convict is not sufficient if a mere preponderance of proof sustaining conviction is supplied. The evidence must be of such a convincing character that the reviewing court can say that it reaches that requirement of the criminal law which demands that all reasonable doubt shall be removed. This does not mean that the reviewing court must be convinced beyond a reasonable doubt of the guilt of defendant below. The legal requirement is that the evidence to convict must be of such a nature that its very character is sufficient to satisfy reasonable minds of the guilt of the defendant. It is the province of the jury to determine the credibility of the witnesses. It may disbelieve, or believe, and this applies to any testimony which the defendant himself may give. The question of belief rests with the jury, and it is reversible error for a reviewing court to substitute its own opinion for that of the jury. The reviewing court must not invade the province of the jury as to the credibility of the witnesses, no matter how conflicting the evidence is, providing its weight is sufficient under the rules of criminal law to sustain the verdict of conviction. This is well settled in Painesville Utopia Theater v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683, in which it is held by direct and positive language that it is reversible error for the court to invade the province of the jury. It is the function of the jury, where the evidence is conflicting, to weigh, and, by so doing, to determine where the truth lies.

Able counsel for plaintiff in error argues strenuously that the court committed prejudicial error in instructing the jury on the question of conspiracy, for the reason that nothing appears in the record as to this offense.

The charge complained of is as follows:

“Did the parties act together in the commission of the offense charged in the indictment? Was the act done in pursuance of a common intent, and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the" law is that - all are alike guilty provided an offense was actually committed, during the existence and in the execution of the common purpose, whether in point of fact all were actually bodily present or not, and every act done by one of the conspirators in pursuance of the common purpose and design is the act of each of the others, and all are equally guilty of the crime committed.”

From an examination of the record we see no error in this charge, for the reason that the state offered the testimony of an accomplice, and from his evidence it appears that the defendant in the instant case, and the accomplice, were together at the time of the commission of the offense. This evidence in the case was sufficient, in our judgment, to warrant the court in giving to the jury the instruction to which there is objection, because the very circumstance of companionship would be some evidence tending to support the theory that there was a common design, and, while the court would not be justified in charging the jury upon the subject of conspiracy in the same manner as if that offense was the subject of the indictment, yet, as bearing upon the guilt or innocence of the defendant in this case it would have some bearing, inasmuch as the testimony of the accomplice indicated a common purpose between him and the defendant.

Evidence of conspiracy need not be based upon positive testimony. A mere circumstance may be the basis of determining whether two people apparently bent upon the same purpose were both guilty, or one guilty and the other innocent.

The companionship at the time of the commission of' the offense is a circumstance which we think formed a reasonable basis for the instruction given, and hence we see no prejudicial error therein.

Again, it is charged as error that, the defendant in an examination conducted by his own attorney having made an admission of a former conviction, the court had no right to comment upon the subject, inasmuch as the state did not offer such evidence.

It is a well-established fact that the court has a right to comment upon any fact in the record regardless of the source from which it proceeds. It may come from defendant, or from the state and the defendant. It is not whence it proceeds, but whether it exists, and if, as in the present case, the record shows a former conviction, it was not error, of a prejudicial nature at least, for the court to instruct the jury that its only proposition related to the credibility of the testimony given, by the defendant. Hence we think that there is no error here.

Again, it is charged that the court committed error in giving the following instruction:

“There has been testimony offered here by one of the persons, on behalf of the state, who it is claimed was implicated in this transaction, and has pleaded guilty to the charge. The court will say to you, the jury ought not to convict on the uncorroborated testimony, that is, the unsupported testimony, of an accomplice. However, it is for you to determine from all the facts and circumstances whether or not the testimony of the accomplice has been corroborated in any or all of these respects, and you are to determine what weight and credit you will give it. ’ ’

After an examination of this instruction, we find no ground for the complaint made, for the reason that the doctrine in Ohio as to the testimony of an accomplice is sufficiently and intelligently stated. The court told the jury that it was its province to determine from all the facts and circumstances in the case whether the testimony of the accomplice had been corroborated, after first stating that there ought not be a conviction on the uncorroborated or unsupported testimony of the accomplice. There is one condition, perhaps, that would make such an instruction reversible error, if it were prejudicial, and that is that there were no facts and circumstances corroborating the statement of the accomplice; but that cannot be said of the record in this case, as we view it.

We have examined the other assignments of error and we find no error which is prejudicial to the rights of plaintiff in error, and, holding these views, the judgment of the lower court is hereby sustained.

Judgment affirmed.

Vickery and Levine, JJ., concur.  