
    CLARK v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3103.
    Decided July 18, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    225. CHARGE OF COURT — While single phrase taken from charge may be prejudicial when standing alone, if, when considered in connection with balance of charge, jury could not have been misled, such phrase will not constitute reversible erorr.
    Error to Common Pleas.
    Judgment affirmed.
    A. C. Frike and A. Lee Beaty, Cincinnati, for Clark.
    Charles P. Taft, II, Pros. Atty. and Edward Corcoran, Asst. Pros. Atty., Cincinnati, for State.
    Justice, J., of the Third District, sitting by designation.
   FULL TEXT.

HAMILTON, PJ..

Plaintiff in error, James Clark, was indicted for second degree murder, and at the trial was found guilty of manslaughter hy the jury.

Two specifications of error are presented by the plaintiff in error, and argued to -the Court: First: The Court abused its discretion in the denial of a continuance of the trial of the cause on the application of Clark. Second: That the Court erred in its charge defining reasonable doubt.

On the question of the abuse of discretion in denying the continuance of the trial, the bill of exceptions contains a complete record of what occurred, and, on the record, the Coiirt did not abuse its discretion in refusing the continuance, but properly protected the interests of Clark, in securing him a fair trial in so far as the continuance was' concerned.

Plaintiff 'in error takes from the charge of the Court, .the following, phrase from a paragraph, ‘ defining' reasonable doubt: “If they can not so say a resisanabte doubt, exists, and it would be” your duty "tó convict the defendant.” Plaintiff in .error claims ..this .is equivalent to charging the jury that if a reasonable, doubt exists, it is the duty of the jury to convict. The phrase is awkwardly stated, and if, standing alone," would be sufficient upon which, to predicate reversible error. While the phrase-undoubtedly is awkward, and does not properly convey to the’jury the law, yet, when considered in connection with the rest of the charge, the jury could not have been misled, and were clearly given the law in the following, which immediately follows the phrase above quoted: ‘ '.‘But if you can say that you feel a firm conviction to an. honest certainty of the truth of thécharge, and that the state-has estáblished all the elements necessary to-make out the offense, there would not bé a reasonable doubt, and it would be your duty-under those circumstances to find the defendant guilty. You will not, however, be justified in convicting the defendant on suspicion or on probabilities; neither is a preponderance of the evidence sufficient to convict the defendant, but the proof must be such as -to create a clear and undoubted conviction in your minds of the guilt of the defendant; and if the evidence leaves in your minds such a doubt as to the guilt of the defendant as -to deter a reasonable man to be controlled by it, such a doubt would be a reasonable one, and the defendant could not properly be convicted, for the law is too humane to demand a conviction while a reasonable doubt remains in the minds; of the jury. You will be justified and required to consider a reasonable doubt as existing, if the material facts without which guilt could not be established could be fairly reconciled with innocence.”

This quotation completes the full paragraph-on the question of reasonable doubt, and is presented-so clearly, that, notwithstanding the awkwardness of the phrase quoted, the jury could not have heen misled.

We find no prejudicial error in the record,, and the judgment is affirmed.

(Cushing, J., and Justice, J., concur.)  