State v. DeHass

• Decision Date: 31 May 1967
• Docket Number: No. 40384,40384
• Citation: State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, 39 O.O.2d 366 (Ohio 1967)
• Parties: , 39 O.O.2d 366 The STATE of Ohio, Appellant, v. DeHASS, Appellee.
• Court: Ohio Supreme Court

Page 230

10 Ohio St.2d 230

227 N.E.2d 212, 39 O.O.2d 366

The STATE of Ohio, Appellant, v.DeHASS, Appellee.

No. 40384.

Supreme Court of Ohio.

May 31, 1967.

Syllabus by the Court

1.On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.

2.A reviewing court may not reverse a judgment of conviction in a criminal case in a trial court, where the record shows that a verdict of guilty was returned by a jury on sufficient evidence and where no prejudicial error occurred in the actual trial of the case or in the instructions given the jury by the court.

The Grand Jury of Brown County, Ohio, returned a three-count indictment against John DeHass and James Craig.The first count charges that on or about November 28, 1964, in the county of Brown the accused persons committed assault and battery on one Frances Hite in violation of Section 2901.25, Revised Code.The second count charges that on the same date the accused forcibly raped Francis Hite in violation of Section 2905.01, Revised Code.The third count charges that on the same date the accused unlawfully kidnapped Frances Hite for the purpose of committing rape upon her person in violation of Section 2901.31, Revised Code.

Upon a jury trial in the Court of Common Pleas, both defendants, who were represented by counsel, were found guilty on all three counts and were sentenced by the court accordingly.

No appeal was taken by defendant Craig, but DeHass appealed to the Court of Appeals on questions of law, where, by a two-to-one vote of the judges, the judgment of conviction was reversed for prejudicial error occurring at the trial and the cause remanded to the Court of Common Pleas for a new trial.

The state's motion for leave to appeal was allowed by this court, and the cause is now here for decision on the merits.

Angus B. Wilson, Pros.Atty., and Charles H. Wilson, West Union, for appellant.

Dorothy Kennedy, Bethel, for appellee.

ZIMMERMAN, Judge.

In either a criminal or civil case the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.By the verdict rendered herein, it is apparent that the jury believed the testimony of the prosecuting witness and the corroborating evidence presented by the state, and an examination of the bill of exceptions demonstrates that such evidence was sufficient to support the verdict of guilty, as returned by the jury, and the judgment of the trial court.

Briefly, the bill of exceptions contains evidence that Frances Hite, a 49-year-old widow with three adult children and weighing less than 100 pounds, was forcibly removed at night by DeHass, 24 years old, and against her protests from the Pleasure Lake Tavern and Placed in a nearby automobile, owned and later driven by Craig, also 24; that, while the automobile was both in motion and stationary, DeHass and Craig had sexual intercourse with Mrs. Hite several times over her frantic but futile resistance; that both DeHass and Craig struck her, tore her clothing and otherwise brutalized her; that, after she left or escaped from the automobile, several persons observed her torn clothing, disheveled appearance, distraught condition and bruises on her face; and that, upon her examination by a physician at the Brown County General Hospital, male spermatozoa were found in her vaginal canal.The physician also observed her physical injuries and her emotional disturbance.'She had multiple bruises and contusions of the face and chest, the right ankle and the left hand.'She was hospitalized for nine days on account of her injuries and, at the time of the trial, had not been able to resume her regular employment.

DeHass admitted on the witness stand that he had sexual relations with Mrs. Hite once, and Craig testified that he did not touch her.Both the young men claimed that Mrs. Hite was a willing and co-operative companion, and that she was not struck or beaten while in their company.

From the majority opinion of the Court of Appeals, it is plain that two of the judges wished to reverse the judgment below as manifestly against the weight of the evidence.However, the third judge, in his dissenting opinion, stated that 'there was ample evidence upon which the jury could base its verdict.'He stated further that defendant had a fair trial, and that 'the verdict of guilty and the judgment of the trial court thereon should be affirmed,' citing Section 2945.83(E), Revised Code.

Of course, under Section 6, Article IV of the Constitution of Ohio, there could be no reversal on the weight of the evidence except by the concurrence of all three judges of the Court of Appeals.

Two of the appellate judges, patently determined upon a reversal of the judgment below, found that the trial judge committed error prejudicial to the rights of the defendant in three principal respects: (1) the misuse and overemphasis of the term, 'guilty,' in the charge and otherwise; (2) reversible error in the charge respecting the third count of the indictment by stating to the jury 'that no specific intent is required to constitute the offense of kidnapping with intent to commit rape,' which error confused and misled the jury; and (3) the compounding of such error when the court refused, upon request of counsel, to correct the erroneous charge and in repeating the erroneous charge verbatim when the jury, during the course of its deliberations, asked for...