State v. Lippi

The defendant in this case was charged by affidavit in the Municipal Court of Van Wert with the violation of Section4511.251, Revised Code, on the 9th day of June 1961. This section, so far as pertinent to the charge here filed, is as follows:

"(A) Drag racing is defined as the operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to out-distance each other * * *. The operation of two or more vehicles side by side either at speeds in excess of prima facie lawful speeds established * * * or rapidly accelerating from a common starting point to a speed in excess of such prima facie lawful speeds shall be prima facie evidence of drag racing."

The case was tried to the court without the intervention of a jury. The defendant was found guilty and the maximum sentence for such violation, a fine of $500 and imprisonment for six months, was imposed. From this finding of guilty this appeal arises.

The record discloses that a state highway patrolman, while traveling west on U.S. Route No. 30, a short distance west of the city of Van Wert, was following a car subsequently identified as that being driven by the defendant, and that the defendant passed a large truck and trailer at a speed which the patrolman felt was too fast. Whereupon, the patrolman passed the truck and followed the defendant a short distance west to Richey Road, where the defendant turned to his right, or north. The patrolman turned his car to the left, or south, at this intersection where the Dix Church is located and parked his car in the church yard, facing north, and put his headlights on dim. He testified that after traveling north a distance of about one hundred yards the defendant pulled his car up alongside another car which was parked there, and that they "started up, side by side, rapidly accelerating their speeds for a distance of at least two to three hundred yards, at which time one car went ahead of the other." He testified that he was not in a position to clock the speed of these cars, but that in his judgment they were each driving at a speed much in excess of 50 miles per hour, which would be in excess of the prima facie rate of speed during the night season, since it was then a little after 8:30 o'clock p. m. About a mile and a half north of the intersection of U.S. Route No. 30 and Richey Road is the Pennsylvania Railroad crossing, and it is admitted by all witnesses that this crossing on Richey Road is a steep incline, for which the cars traveling Richey Road must reduce their speed to from five to ten miles per hour. The patrolman testified that as these cars approached the railroad crossing they did reduce their speed to such a low speed, one following the other across the crossing. The defendant is not charged with drag racing between U.S. Route No. 30 and the Pennsylvania crossing, the incident above described.

The patrolman testified that these cars continued in their proper lane north of the railroad crossing, but at a high rate of speed. He started to follow them but had some trouble crossing U.S. Route No. 30 because of the traffic conditions, and that he drove his patrol car north on Richey Road at a high rate of speed and had to slow down for the railroad crossing, and that he then continued at the high rate of speed. About a mile and a half north of the railroad crossing on Richey Road is the intersection of Convoy Road, and the patrolman testified that as these cars reached the intersection of Richey Road and Convoy Road they again lined up side by side and then "accelerated rapidly, side by side, for a distance of two to three hundred yards at speeds in excess of the prima facie lawful speed * * * after which one car pulled ahead of the other into his proper lane of traffic." He testified that he was then sufficiently close to both automobiles to obtain an accurate clock of their speeds and that he did clock them. It is significant that at no time did the patrolman state the speed at which he clocked the defendant. He testified further that, although both cars were traveling in a single line, each continued at a high rate of speed and he was unable to overtake them; that the two drivers continued on for a distance of two miles to a crossroad known as the Dixon-Cavette Road, where one of the drivers turned right and into a farm yard and the defendant turned left on the Dixon-Cavette Road, rapidly accelerating his car. He testified further that he did not turn on his siren or his red pursuit light on top of the cruiser until after the defendant turned left on the Dixon-Cavette Road.

The defendant is charged with drag racing on Richey Road between Convoy Road and the Dixon-Cavette Road.

On cross-examination the patrolman testified that he was not sufficiently close to both cars to clock their speed accurately until after the defendant and the other car finally pulled up side by side the second time at the intersection of Richey Road and Convoy Road; that he had his cruiser "to the floor" and was unable to catch up with the two cars until they stopped side by side at the Convoy Road intersection. He was then asked why he did not give them a signal that he was following them and wanted them to stop and he testified that he was not in position to do so. There were no other witnesses on behalf of the state as far as this case is concerned. The defendant was charged with the subsequent offense of reckless driving after he turned left at Dixon-Cavette Road and the officer started in pursuit. The two charges against the defendant were combined for the purpose of trial and a much larger portion of the record concerns the charge of reckless driving.

The defendant assigns as error that the finding, opinion, judgment and sentence of the court are not sustained by sufficient evidence, and are contrary to law.

This is a criminal case. It is a very elementary and a fundamental principle of law that in a civil case a verdict is authorized when supported by a bare preponderance of the testimony, but in a criminal case a verdict of guilty is authorized only when the evidence produced establishes the guilt of the accused beyond a reasonable doubt. The degree of proof required in criminal cases is the same whether the case is tried to a jury or whether it is tried to a trial judge without the intervention of a jury. In other words, a verdict of a jury cannot be sustained unless the required degree of proof is shown. Likewise, a finding of guilty by a trial judge cannot be sustained unless it also is supported by evidence produced to the degree of proof required, the same as before a jury.

What then becomes the duty of this court when the matter is brought before it on appeal? In 3 Ohio Jurisprudence (2d), 820, Section 821, it is stated:

"Degree of proof required in criminal cases. — In determining whether a judgment in a criminal case is manifestly against the weight of the evidence, the reviewing court should take into consideration the degree of proof required in criminal cases. * * * a verdict in such criminal case may be manifestly against the evidence, although supported by a preponderance of the testimony, for the reason that more than a preponderance of the testimony is required to warrant a verdict of guilty.

"A verdict is not sustained by sufficient evidence, if, after weighing it, there exists a reasonable doubt as to the guilt of the accused * * *."

The Supreme Court of Ohio, in Cooper v. State, 121 Ohio St. 562, states in the syllabus:

"It is the duty of the Court of Appeals, in reviewing a case upon the weight of the evidence, to determine whether the verdict and/or judgment is supported by the degree of proof which the character of the case requires, and to render its judgment according to such determination."

In considering the case before us we are confronted with the same question which was before the Court of Appeals of the Sixth Appellate District in the case of State v. Clark, 92 Ohio App. 382, which was on appeal from a conviction in the trial court wherein the complaint charged that the defendant "did act in a way tending to cause the delinquency" of an eleven-year-old child. The court, in its opinion on page 387, said:

"In our consideration of this case, we can not ignore the responsibility resting upon the court by reason of the unqualified expression founded in the syllabus of Cooper v.State."

The syllabus in Cooper v. State has been quoted above, and paragraph four of the syllabus in State v. Clark is as follows:

"In reviewing a case on the weight of the evidence, the Court of Appeals must determine whether the evidence obtains thathigh degree of probative force and certainty which the law demands to support a conviction." (Emphasis added.)

It now becomes necessary to consider the evidence upon which the conviction of the defendant below rested. The only evidence against the defendant relating to the charge of drag racing is that of the patrolman and is as follows: "* * * accelerated rapidly, side by side, for two hundred to three hundred yards at speeds in excess of the prima facie lawful speed * * * after which one car pulled ahead of the other into his proper lane of traffic."

The first part of the statute defining drag racing is that "drag racing is defined as the operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to out-distance each other." There is no evidence in the record before us upon this point. However, the latter part of the statute provides that the operation of two or more vehicles side by side, either at speeds in excess of the established prima facie lawful speeds or rapidly accelerating from a common starting point to a speed in excess of such prima facie lawful speeds, shall be prima facie evidence of drag racing.

It will be noted that the testimony given by the patrolman parrots the words of the statute as to what constitutes a prima facie case. Giving full import to his testimony, the best that can be said for it is that it does establish a prima facie case.

The conviction of the defendant cannot be sustained by proof of a prima facie case unless such proof is not challenged by contrary evidence. The defendant in this case offered evidence of himself and the driver of the other car specifically denying any act of drag racing. Their testimony was to the effect that the defendant was going out to visit his girl friend who lived on the farm at the intersection of Richey Road and Dixon-Corvette Road, where the driver of the other car turned into a farm yard and the defendant turned left. The driver of the other car wanted to find out from the defendant's girl friend what size sweater he should buy as a present for his girl friend. Both testified that as they turned north off U.S. Route No. 30 one signaled the other and they stopped, side by side and talked about the car which had been following the defendant and came to the conclusion that they were being followed purposely. They both testified that upon crossing Convoy Road one of them signaled the other and they stopped, side by side, and again discussed the fact that they were being followed, and from the lights of the car following them they decided this car was getting closer. The testimony definitely establishes that at the Convoy intersection the two cars were side by side, as the patrolman testified that from where he was he could see four tail lights in the road.

This evidence tends to overcome the evidence of a prima facie case given by the patrolman. Upon such evidence being introduced it became the duty of the trial court as the trier of the facts to decide in view of all of the testimony before him whether or not the state had established a case against the defendant by evidence to the degree required for a conviction in a criminal case.

Upon appeal the same question is before this court.

To sustain a conviction the evidence produced must be such as to establish the guilt of the accused beyond a reasonable doubt. The record in this case has been read and re-read several times and carefully considered, and we must conclude, as the Court of Appeals in State v. Clark, supra, did, at page 388, that upon consideration of all the testimony "and all the other facts and circumstances disclosed by the record, we can not say that we 'feel an abiding conviction to a moral certainty of the truth of the charge' and that therefore the evidence attains that high degree of probative force and certainty which the law demands to support a conviction."

In State v. Clark, and also in State v. Miclau, 104 Ohio App. 347, another case involving one of the questions here presented, that is, whether to reverse and remand or discharge, the judgment of conviction and sentence were reversed and the defendant discharged. The Miclau case was affirmed by the Supreme Court (167 Ohio St. 38).

It follows that the judgment and sentence must be, and hereby is, reversed and the cause is remanded to the Municipal Court of Van Wert with instructions to discharge the defendant.

Judgment reversed.

MIDDLETON, J., concurs.