13 N.E.2d 909
No. 26752Supreme Court of Ohio.
Decided March 16, 1938.
Criminal law — Charge to jury prejudicial — Indictment states charges for defendant to disprove, if he can.
APPEAL from the Court of Appeals of Cuyahoga county.
In the Court of Common Pleas William Di Angelo and Nathan Augustino were jointly indicted, tried and convicted of the crime of robbery.
Upon appeal the Court of Appeals dismissed the appeal of Di Angelo, and affirmed the judgment as to Augustino.
The case is in this court by reason of the allowance of Augustino’s motion for leave to appeal.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Neil W. McGill, for appellee.
Mr. Harry F. Glick, for appellant.
BY THE COURT.
The one assignment of error requiring the attention of this court relates to the following charge of the trial court to the jury:
“The purpose of the indictment is to apprise the defendants of the nature of the charge against them. That is the purpose of the indictment, that they may be fully cognizant of what the state charges them with, so that they can disprove it if they can.”
The defendant’s complaint is predicated upon the language “so that they can disprove it if they can.” The state makes no contention that this constitutes a correct statement of the law. Rather it is urged that at the moment the questioned language was used the court was not charging the jury upon the burden of proof but was merely explaining the purpose of an
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indictment. Furthermore it is contended by the state that elsewhere in the charge the trial court gave a correct instruction as to the burden of proof. An examination of the record discloses that the charge did include a correct instruction on the subject. But does this fact render the incorrect language innocuous? Irrespective of the primary purpose of the court at the moment the questioned charge was given, the indictment was thereby accorded an unwarranted force which could not well be considered as eliminated by mere inference drawn from conflicting language.
Under the circumstances in this case this court is of the opinion that the natural and probable result of the erroneous instruction was to confuse the jury on this important subject. The judgment therefore must be reversed and the cause remanded for retrial.
Judgment reversed and cause remanded.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.
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