
    Fink v. The State of Ohio.
    
      (Decided October 12, 1931.)
    
      Messrs. Hawley & Gilson and Mr. Milton Friedman, for plaintiff in error.
    
      Mr. Ray T. Miller, prosecuting attorney, and Mr. Thomas A. Burke, Jr., for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county to reverse a judgment of conyiction under an indictment for carrying concealed weapons.

We have read the record, the briefs, and heard the arguments of counsel, and have come to the conclusion that there is no error in this record that would warrant us in reversing the judgment of conviction.

From the record we learn that the plaintiff in error, Leo Fink, had aroused the suspicions of the police officers of the city of Cleveland because of the manner in which he had parked his automobile on the wrong side of the street, and, upon searching the car and the plaintiff in error, they found upon him a loaded revolver. He was thereupon arrested, bound over to the court, and indicted. The defendant in the court below waived a jhry and was tried by his honor, Judge Corlett, sitting as a jury, and he was found guilty and sentenced to a year in the penitentiary.

During the course of the trial it was admitted by the defendant that he had in his possession a concealed loaded revolver, that he had received no permission to carry such a revolver; but as a matter of defense he pleaded the benefit of Section 13448-4, General Code, which reads as follows:

“Upon the trial of an indictment or information for carrying a concealed weapon, the jury shall acquit the defendant if it appear that he was at the time engaged in a lawful business, calling or employment, and that the circumstances in which he was placed justified a prudent man in carrying such weapon for the defense of his person, property or family. ’ ’

Now according to this statute the burden of proving the right under the circumstances to carry the revolver is upon the defendant, which his attorneys frankly admitted in court, and if he did not present a preponderance of evidence upon this question the state had proven him guilty. 'Then the question becomes one of the weight of the testimony. The court sitting as a jury could disregard his testimony and find him guilty,* that is, the court sitting as a jury did not have to believe the story that this man and his witnesses told, even though it was unrebutted.

Several errors are urged why this judgment should be reversed. One is an error of law, and it is argued that, inasmuch as this man’s testimony was to the effect that he thought himself in danger, had large sums of money about him, and had been held up a week before, and inasmuch as that was not rebutted by the state in testimony addressed to that proposition, he was entitled, as a matter of law, to his release and a verdict of not guilty should have been found for him.

We cannot quite accede to that proposition. In our judgment, the case simply comes down to a question of the weight of the testimony. It surely has been established in Ohio that a jury, or court sitting as a jury, can believe a part and disbelieve a part, or can disbelieve the entire testimony of a witness, or of a series of witnesses, and that, notwithstanding what they swear to, the jury can find against them. This is the law and it must be the law, and that simply means' that the argument in this court must be addressed to the weight of the testimony.

Now in this particular case it is argued that the court, sitting as a jury, went outside the record, in that a card which contained this man’s record was found in the court’s possession, which showed his previous record of convictions. Unfortunately for this argument the record shows that the defendant, when he was on the witness stand in chief, testified to his former record, and of how many times he had been convicted, and what time he had served; and there is nothing in the record to show that this card was before the judge, sitting as a jury prior to the finding of guilty, and, so far as we know, there is nothing in the card which was given to the judge afterwards or before which in any way goes farther than the evidence given in the case by the defendant himself. After the court found the defendant guilty, he called for the report of the probation officer, in order to go into the record more fully, and I presume when that record was furnished the court made it the basis for his final sentence.

All of the remarks which the court made were made after finding this defendant guilty under the evidence, and might have been properly said on a disposition of the case ultimately. The card does not appear to have affected his judgment in the least, so far as finding the defendant guilty. The story this man told, which he said he believed warranted him in carrying a revolver, might well have been discredited by any intelligent man. If the defendant was robbed of the amount of money he said he was, and under the circumstances which he related about the way the robbery occurred, he surely should have reported the robbery to the police. This he did not do. The police were not called there; they had no knowledge of such a robbery having taken place; and the reason the defendant gave why he did not report the robbery was that Dr. Beck, the physician who treated him, had been told by him to notify the police. That there was some sort of a scuffle'or fight in which this man was a participant probably is true, but that it occurred over a robbery, or holdup, which would -warrant him in carrying a revolver to protect himself, is a question of grave doubt, and the court might readily refuse to believe such a story under the circumstances, especially when Dr. Beck denied that, he was told to report the matter to the police and stated that he had no such conversation with the defendant when treated.

The statute says: “If it appear that he was at the time engaged in a lawful business, calling or employment, and that the circumstances in which he was placed justified a prudent man in carrying such weapon for the defense of his person, property or family.” So, if he carries a revolver under those circumstances, and the jury so finds, they shall acquit him. Now it must be a lawful business, and he must have a reason to carry a revolver because of the danger that he is involved in in his business. He said he was collecting for his brother, and that he had large sums of money about him. He did have large sums of money about him at the time of his arrest, but apparently the court, sitting as a jury, did not believe his story as to where he got this money. He might have been engaged in some other business that was not legitimate, that was not lawful.

Anyway, the whole story of the defendant is tinged with so many matters of doubt that a court, sitting as a jury, might well refuse to believe it. That he had a revolver is conceded; that it was concealed is conceded; that it was loaded is conceded; and if the court refused to believe the defendant’s testimony as to why he carried it, and the reason therefor, there is nothing in the record which would warrant a court in coming to any other conclusion than that this defendant was guilty of carrying concealed weapons.

We can only come to the conclusion that the only way in which this court could reverse the judgment would be upon the ground that the verdict was not supported by sufficient evidence, and that would take a unanimous court, and a reviewing court would not be justified in coming to that conclusion from this record.

Now we have treated this case as though the record, the bill of exceptions, was properly signed. As a matter of fact, the trial judge did not sign the bill of exceptions or certify as to its correctness, but he signed only at the place where he receipted when the bill was put in his possession; but he corrected it throughout with his own handwriting, and therefore it is fair to presume that he did have the bill of exceptions, and that he simply overlooked signing it, and that error could probably .be corrected. So we have disposed of this case as though the bill had been properly signed; and, after having the whole record before us, and finding that the court did not learn of the former record of this defendant before finding him guilty, other than from the testimony which defendant himself introduced, we can see no error of the court in finding this man guilty; nor any error in the language which the court used, after he had announced the verdict of guilty, as to what disposition he would make of the case, and had announced that he would get the report of the probation officer as to this man’s character and reputation, which he apparently did. And from that reputation, as it was furnished to him, one cannot say that he committed any error in sentencing this defendant to the penitentiary.

The judgment of the court below will therefore be affirmed.

Judgment affirmed.

Levine, P. J., and Weygandt, J., concur.  