
    MICELLA v STATE
    Ohio Appeals, 6th Dist, Cuyahoga Co
    No. 11269.
    Decided March 9, 1931
    L. E. Appleton, Cleveland, for Micella.
    Harold H. Burton, Norman A. Ryan and Stephen Gobozy, all of Cleveland, for State.
   WEYGANDT, J.

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. 295 at 320. The Supreme Court of Ohio cited, quoted and approved it as early as the case of Morgan v State, 48 Oh St 370 at 377.

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

“Section 1096: A defendant in a c iminal action is presumed to be innocent until the contrary is proved, end in case of a reasonable doubt v hether 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 posr iblé ’ or imaginary doubt. It is that "fate of the -case, which, after the entire' comparison and consideration of r-.ll the evidence, leaving 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.’”
“Section 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 ilasonable 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 chat 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 contest, 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 573, where the text.writers use the following language:

“The court is now required by statute to read the statutory definition cf reasonable doubt.” '

No reported case has been found in which the precise question was raised and decided. In the case of Davis v State, No. 10,785 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.

Levine, PJ, concurs.

(Vickery, J, not participating).  