
    The State of Ohio, Appellant, v. Stuttler, Appellee.
    (No. 36684
    Decided June 14, 1961.)
    
      Mr. G. William BroTcaw, prosecuting attorney, for appellant.
    
      Mr. Alvin J. Savmell, for appellee.
   Bell, J.

The finding of the Court of Appeals has necessitated a complete review of the evidence offered at the trial of this cause.

Well over half of the testimony offered by both the state and the defendant was concerned with the finding of a fingerprint at the scene of the breaking and entering and with a dissertation on fingerprinting and identification therefrom in general, and there was conflicting evidence as to the identification of the fingerprint as that of the defendant. This fingerprint, along with a palm print, was found on the north wall of the second floor of the store, eight to ten feet above the level of the floor and just below a skylight through which entry had apparently been made by breaking a pane of glass.

From the rest of the testimony the following uncontradicted facts appear: (1) The hardware store in question was closed from approximately noon on one day until approximately 8 a. m. on the following morning; (2) neither the owner nor any employee of the store was in the store between those hours; (3) upon reopening the store in the morning a skylight was found to be broken; (4) certain of the hardware store inventory was discovered to be missing; (5) the skylight found to have been broken was plainly visible from the higher placed windows of an adjoining office building; and (6) on June 9, the day of the breaking and entering, the defendant performed his régularly assigned cruiser duty between 8 a. m. and 4 p. m.

The trial judge carefully and properly charged on the night-season element of the crime as follows:

“Further, the. state must prove to you by the same degree of evidence, that is, beyond a reasonable doubt, that the defendant forcibly broke and entered said building as has been said, in the night season. By the term ‘night season’ is meant that period of ■ time intervening between the • termination of daylight in the evening to the earliest dawn of the following morning; that period of time from the setting of the sun in the evening to the rising of the sun in the morning, when the face of man is no longer discernible.”

He likewise carefully and properly charged on circumstantial evidence as follows:

“In any case the evidence may be either direct or circumstantial or both. If a witness testifies from his own observation to the commission of an act or to the existence of a fact, that is direct evidence. But it is not always possible to ascertain the truth by evidence of this character and, hence, the law permits the introduction of what is called circumstantial evidence. By ‘circumstantial evidence’ is meant proof of certain facts and circumstances by direct evidence from which a jury may infer other connected facts, which usually and reasonably follow according to the common experience of mankind. U# * *

‘ ‘ Circumstantial evidence alone, when it satisfies the minds of the jury beyond a reasonable doubt, is sufficient to warrant a conviction; but to justify a conviction on circumstantial evidence alone, the circumstances should not only be consistent with the defendant’s guilt, but they must be inconsistent with any other reasonable conclusion and such as to leave no reasonable doubt in the minds of the jury of the defendant’s guilt.

“It is not necessary, however, that each of such circumstances standing alone be sufficient to warrant conviction. If there be a number of different circumstances which, taken together, cannot be explained on any reasonable hypothesis other than the defendant’s guilt, and if, in view of all the circumstances, the jury is convinced beyond a reasonable doubt of his guilt, then you would be justified in finding him guilty.”

Was the trial court justified in permitting the jury, guided by these instructions, to draw, not only from the established facts and circumstances surrounding the offense but also from the common experience of mankind, an inference that the breaking and entering occurred in the night season? The majority of this court believes the answer should be in the affirmative.

Only the most crass of those bent on crime would intentionally commit an illegal act at a time when and in a place where detection would be almost inevitable. And one bent on burglary requires time not only to effectuate an entrance and carry out his activities in the building, but he needs also time in which to assure his departure from the scene without being observed and apprehended. A jury has the right to apply this common experience of mankind to the determination of the time when the breaking and entering was committed. It was within the province of the jury here to conclude that the defendant worked under the cover of darkness, and the facts developed and circumstances surrounding the commission of the offense were such that it could logically conclude that the defendant did so operate. See State v. Butler, 57 Ohio Law Abs., 385, 94 N. E. (2d), 457; State v. Richards, 29 Utah, 310, 81 P., 142.

Having concluded that there was sufficient evidence to support the finding of guilty by the jury of breaking and entering in the night season, it is unnecessary to discuss the question of whether breaking and entering in the day season is an included offense in breaking and entering in the night season.

The judgment of the Court of Appeals is, therefore, reversed, and that of the Court of Common Pleas is affirmed.

Judgment reversed.

Weygandt, C. J., Taet, Radclife and O’Neill, JJ., concur.

Zimmerman and Matthias, JJ., dissent.

Radclife, J., of the Fourth Appellate District, sitting by designation in the place and stead of Herbert, J.

Zimmerman, J.,

dissenting. Defendant was indicted under Section 2907.10, Revised Code, for maliciously and forcefully breaking into a hardware store in the night season. At his trial, the state proved, at most, that the burglary was by forceful entry and took place sometime between noon of one day and eight o’clock on the morning of the following day, and that a fingerprint of defendant was found on a wall of the burglarized store above the second-floor level. Defendant was found guilty as charged and sentenced to an indeterminate period of from one to 15 years in the Ohio Penitentiary.

An appeal on questions of law was taken to the Court of Appeals where the judgment of conviction was reversed and the defendant discharged. In its judgment entry that court stated:

“Upon consideration, the court finds that the state failed to prove beyond the existence of a reasonable doubt that the offense occurred in the night season; the court further finds that the offense of burglary in the night season of an uninhabited dwelling is a separate and distinct offense from breaking and entering in the daytime, and that breaking and entering in the daytime is not an included offense to burglary in the night season.

“It is therefore ordered that the judgment and verdict of the jury in the Court of Comm on Pleas be, and the same hereby is, reversed, and that the appellant herein be discharged.”

In my opinion, such determination is correct. The offense of burglary in the night season is defined in Section 2907.10, Revised Code, and the offense of burglary in the daytime is defined in Section 2907.15, Revised Code. The two offenses are separate and distinct, and violation of the former carries a different and greater penalty than violation of the latter.

To warrant a verdict of guilty and a judgment of conviction under the indictment as laid, it was incumbent on the state to prove beyond a reasonable doubt not only that the defendant committed the burglary but that it took place in the night season as charged, and this the state failed to do.

There is respectable and persuasive authority for this conclusion. In the case of State v. Behee, 17 Kan., 402, it was held that burglary in the nighttime as defined by one section of the Kansas act relating to crimes and punishments does not include burglary in the daytime as defined by another section of the same act, and that, where an accused is specifically charged with burglary in the nighttime, a conviction of the lesser offense of burglary in the daytime can not stand. In the opinion at page 406, the court said: “It is only where the lesser offense is included in the greater, that a verdict can be for the lesser under an indictment or information for the greater. Burglary in the nighttime, as charged under said Section 63, does not include burglary in the daytime as defined by Section 69 of said crimes act. One may be guilty of the latter, and not of the former; and of the former and not of the latter.”

In Bromley v. People, 150 Ill., 297, 37 N. E., 209, the court held that, under a section of the Illinois Criminal Code which imposed different penalties for a day burglary and a night burglary, proof of a burglary in the daytime would not sustain a conviction where the indictment charged burglary at night.

In the opinion in the Bromley case the flat statement is made that “the prosecution having charged that the burglary was committed in the nighttime, was required to prove it.”

Again, in State v. Copenhaver, 35 Mont., 342, 89 P., 61, the holding was that an indictment charging a nighttime burglary under one section of the Penal Code will not support conviction of a daytime burglary under another section of the code, since daytime burglary is not an included offense in nighttime burglary.

Finally, in the case of State v. Fitzpatrick, 125 Mont., 448, 239 P. (2d), 529, the court reversed the conviction and ordered the defendant discharged upon the basis that an information specifically charging a burglary committed in the nighttime does not include a charge of burglary in the daytime and a conviction under such information requires proof that the burglary was committed between sunset and sunrise. And further, where the evidence introduced fails to establish a nighttime burglary, the defendant is entitled to discharge. There are other cases to the same effect.

That the crime occurred in the nighttime must be established by direct evidence; the jury may not be permitted to speculate as to the matter.

As was said in the case of In re McVey, 50 Neb., 481, 483, 70 N. W., 51, 52: “He [an accused] is entitled to know the nature and cause of the accusation * * * so that he may be enabled to prepare and make his defense, if any he has. The statement of the time as to the crime of burglary is an averment of a material element thereof and must be specifically proved as laid.”

All crimes in Ohio are based on statute or on a duly enacted municipal ordinance, and no behavior, however atrocious, may be punished criminally except in accordance with the provisions of a valid statute or ordinance. 15 Ohio Jurisprudence (2d), 244, 245, Section 7. So, if one is specifically charged by indictment with burglary in the night season under Section 2907.10, Revised Code, he must be proved guilty beyond a reasonable doubt of that particular offense. That he may be guilty under the evidence of some other separate and distinct offense not included in the one charged, even though akin to it, is beside the point.

Therefore, I agree with the judgment of the Court of Appeals herein and would affirm it.  