State v. Brown
| Decision Date | 02 April 1956 |
| Citation | 141 N.E.2d 686,102 Ohio App. 113 |
| Parties | , 2 O.O.2d 113 The STATE of Ohio, Appellee, v. BROWN, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. In a criminal action, the trial court may sustain a motion of defendant for a dismissal of the charge only where there is no evidence to establish all the essential elements of the crime charged; and where there is any substantial evidence that a crime has been committed by the defendant it becomes a question for the jury to determine his guilt or innocence.
2. It is permissible for a jury to use a series of facts or circumstances as a basis for ultimate findings and inferences.
3. In a criminal action, the defendant does not have the burden of proof to establish his alibi by a preponderance of the evidence, or beyond a reasonable doubt, and if proof of the alibi raises a reasonable doubt in the minds of the jury as to his guilt, such defendant should be acquitted.
William H. Brooks and John L. Francis, Columbus, for appellant.
Robert L. Perdue, Prosecuting Attorney, Chillicothe, for appellee.
This is an appeal on questions of law from a judgment of the Common Pleas Court of Ross County entered on a verdict of guilty of the crime of breaking and entering an inhabited dwelling in the night season with intent to commit a felony. In the nine assignments of error the defendant complains that the verdict is not sustained by sufficient evidence, that the verdict is against the manifest weight of the evidence, that the court erred in the admission and rejection of evidence, and that the court erred in instructing the jury on the subject of alibi.
The evidence discloses the following facts: That on july 25, 1955, Theda Schwemlein resided in a two-room apartment in the city of Chillicothe, Ohio, consisting of one large room downstairs and a bedroom and bathroom on the second floor; that Mrs. Schwemlein, who lived alone, retired about 10:30 on the evening of July 24, 1955; that when she retired the doors and windows to the apartment were closed and locked; and that Mrs. Schwemlein was awakened about 3 a.m. on July 25 by someone who had entered the apartment through a window on the ground floor, gone upstairs to the bedroom, leaped upon her in her bed, placed his hand over her mouth and said, 'don't do that again and nobody's going to get hurt.' The intruder then forcibly and against her will had sexual intercourse with Mrs. Schwemlein and left the apartment. Mrs. Schwemlein immediately called the police by telephone, and the police arrived at the apartment within a few minutes and found Mrs. Schwemlein screaming, disheveled and with four dark marks extending across her face.
Mrs. Schwemlein was taken to the Chillicothe City Hospital and given a vaginal examination by a doctor, which disclosed the fact that she had recently had sexual intercourse. The doctor removed a small pubic hair from the genital region of Mrs. Schwemlein and placed it on a microscopic slide. Within a few minutes after the police officers arrived at the apartment the defendant, who had previously been convicted of prowling in this same community, was placed under arrest and also taken to the city hospital, where the same doctor examined his external genital organs, retracted the foreskin of his penis and removed from the under side of the foreskin a small hair which was placed on a glass microscopic slide. The pants, socks and shoes of the defendant were impounded by the police officers for evidence. A sheet was removed from Mrs. Schwemlein's bed and an impression was made of footprints left by the intruder on a stove and on a cushion in a chair, made when he climbed through a window into the apartment. Later, all these objects were examined by the Bureau of Criminal Identification at London, Ohio, and it was found that the hair removed from the penis of the defendant was similar in color and texture to the hair removed from the genital region of Mrs. Schwemlein and that the soles of the defendant's shoes fitted the impression of the footprints with identical markings. It was also discovered that short...
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