
    Micella v. The State of Ohio.
    (Decided March 9, 1931.)
    
      Mr. L. E. Appleton, for plaintiff in error.
    
      Mr. Harold H. Burton, Mr. Norman A. Ryan and Mr. Stephen Gobozy, for defendant in error.
   Weygandt, J.

An affidavit was filed in the municipal court of the city of Cleveland, charging Joe Micella, the plaintiff in error, with a violation of Section 13031-13, General Code. He demanded a trial by jury, and was found guilty and sentenced under Section 13031~17(a), General Code.

The single ground of error upon which he relies for a reversal of this judgment is the refusal of the trial court to grant his request to include in its charge the definition of reasonable doubt contained in Section 13442-3, General Code. To this refusal an exception was duly saved.

The court based its refusal on the ground that the jury had already been given the following instruction: “For the benefit of those who have not yet sat in any criminal actions, but who have sat in civil cases, the court wishes to instruct you that the difference between the evidence that is required in criminal actions and that in a civil case, there must simply be a preponderance of the evidence; the weight of the evidence must be in favor of one side or the other in order to entitle the jury to bring in a verdict. In criminal actions, however, the evidence must be such as to satisfy you beyond a reasonable doubt as to the guilt or innocence of the defendant, and by a reasonable doubt I mean just exactly what the words imply. Not a captious doubt, not an arbitrary opinion of yours as to whether or not such and such is the case; but a doubt such as a reasonable man or woman would entertain after hearing certain stories. You have heard the stories from the witness stand. You have seen the witnesses. You must determine from their attitude, from their manner of testifying, and from anything that you have seen and heard, whether or not the witnesses were, telling the truth. You must determine from their demeanor whether they were telling the truth. The court will say that you can doubt any part of their story, you may doubt all of their story. It is a question for you to determine from their motive and testimony, from their demeanor and action on the stand, and the probability of their story, whether or not the witness is telling the truth. ’ ’

Section 13442-3, General Code, as enacted by the Eighty-Eighth General Assembly (113 Ohio Laws, 179), reads: “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.” Plaintiff in error contends that the language in the last sentence of this section is mandatory and imperative to a degree that requires a trial court in a criminal case to incorporate this definition in the charge, even if a different one has already been given, and even in the absence of a specific request by counsel. But he concedes that his request and exception make it unnecessary for this court to decide whether he is correct in his entire contention.

The prosecution insists that the section in question is merely directory, and calls attention to the omission of the word “shall” in the latter part of the last sentence.

No question is raised as to the correctness of the statutory definition, nor as to the power of the General Assembly to legislate on the subject. So far as the former is concerned, it would be difficult to conceive of a more satisfactory explanation of the term. Obviously it possesses the virtues of clarity and succinctness, and it has stood the test of years — at least since 1850, when it appeared in the opinion of Chief Justice Shaw in the famous case of Commonwealth v. Webster, 59 Mass. (5 Cush.), 295, at page 320, 52 Am. Dec., 711. The Supreme Court of Ohio cited, quoted, and approved it as early as the case of Morgan v. State, 48 Ohio St., 371, at page 377, 27 N. E., 710.

The Ohio Code indicates that the section in question was patterned after Sections 1096 and 1096a of the California Penal Code (Statutes of California, 1927, page 1039), which read as follows:

“1096. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs, and depending on 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 jurors in that condition that they can not say they feel an abiding conviction, to a moral certainty, of the truth of the charge. ’
‘ ‘ 1096a. In charging a jury, the court may read to the jury Section 1096 of this code, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.”

It is important to note that the Ohio Legislature struck out the word “may” and inserted “shall.” For this court to hold that the Legislature substituted the word “shall” for “may” with the intention that “shall” should nevertheless be read as “may’'’ would, in the absence of conflict or ambiguity in the context, seem clearly to require nothing less than judicial legislation.

It is further urged that, although the word “shall” appears in the first part of the sentence in question, it does not appear in the latter part. However, the structure of the sentence, and especially the use of the conjunctive form, make repetition of the word “shall” unnecessary. Obviously the two verbs are ‘ * shall state ’ ’ and ‘ ‘ shall read. ’ ’ This view is supported by the statement appearing in 12 Ohio Jurisprudence, 579, section 563, where the text-writers use this language: “The court is now required by statute to read the statutory definition of reasonable doubt.”

No reported case has been found in which the precise question is raised and decided. In the case of Davis v. State, 37 Ohio App., 30, 173 N. E., 300, in this court, the record shows that the trial court gave the statutory definition, as requested, but before so doing made the statement that the charge already given was a better one. It was contended that this was prejudicial error. The conviction was affirmed, and the Supreme Court overruled the motion to certify November 20, 1930.

The final contention of the prosecution is that the refusal of the trial court resulted in no prejudice to plaintiff in error, inasmuch as an instruction had already been given to the jury on the subject of reasonable doubt. A study of the court’s somewhat lengthy charge shows that it did not completely cover the entire substance of the brief statutory definition. Undoubtedly one of the things the Legislature had in mind was the distinct advantage of a carefully worded charge as brief and simple as consistent with accuracy. The greater the length of a charge, the greater the danger that it may be confusing rather than helpful to jurors. Then, too, it sometimes happens that a charge contains language by no means choice, but nevertheless not prejudicially erroneous. There is danger that such language may be mistakenly construed as highly satisfactory, and even used as a model charge, just because it has been tolerated by the reviewing courts. The General Assembly has rendered a distinct service by providing a definition sanctioned by both legislative enactment and judicial pronouncement. Since the Legislature has taken care to' confer upon a party the right to have this particular instruction given, the courts cannot say that there is no substantial error in a denial of the right.

The judgment is reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Levine, P. J., concurs.

Vickery, J., not participating.  