Opinion
No. 6991
Decided July 9, 1948.
Criminal law — Sodomy — Evidence — Similar offenses to establish motive — Charge to jury — Incomplete charge not prejudicial, when — Evidence clear and convincing.
APPEAL: Court of Appeals for Hamilton county.
Mr. Carson Hoy and Mr. Harry S. Schwartz, for appellee.
Mrs. Ophelia Emden, for appellant.
Defendant below appeals to this court from a conviction by a jury of the crime of sodomy.
The proof in the record is clear and convincing that substantial justice has been done in the conviction of the defendant of the crime charged.
Among many assigned errors, it is claimed that evidence of a rape committed by the defendant earlier on the same day, admitted by virtue of Section 13444-19, General Code, constituted prejudicial error.
It is true that during the trial the defendant's counsel stipulated that defendant was present at the time and place charged, but he coupled that admission with the statement that there was a fight between defendant and the prosecuting witness. The plea of not guilty still stood and the cause of the struggle remained to be proved by the state. According to the state's evidence, force was used to accomplish this sex crime. Evidence that accused used force on the same day to perpetrate another sex crime has some tendency to prove that was the motive for the use of force in this instance.
We hold the evidence admissible under the statute, as reasonably disclosing a purpose to use the force necessary to consummate a sex crime over the victim's objection and resistance, within the purview of the holding of the Supreme Court in State v. Moore, 149 Ohio St. 226, 78 N.E.2d 365, and Barnett v. State, 104 Ohio St. 298, 135 N.E. 647, 27 A.L.R., 351.
Error is also specifically assigned to the following of the court's charge:
"If the state of Ohio, or the prosecution, has proved beyond a reasonable doubt that the defendant has committed other acts similar in nature to the one charged in the presentment or indictment in this case, you may consider them in any way in which they will assist you in arriving at the truth or falsity of the charge presented in the indictment."
The above charge is erroneous, as being incomplete, in failing to limit same to the purpose for which the evidence was introduced. However, in view of the clear and convincing proof in the record of the guilt of the defendant, we find that no prejudicial error occurred.
The affidavits used on the motion for a new trial were not brought into the record by a bill of exceptions, and, for that reason we could not in any event give them effect. We have found the affidavits among the papers and have read them. As to the affidavit of the prosecuting witness, it is sufficient to say that she did not change in any way the testimony she gave at the trial. As to the other affidavit, it does not constitute a material contradiction of the testimony of the police officers. Furthermore, there is no showing that it was newly discovered evidence.
We find no other error in the record prejudicial to the defendant.
The judgment is affirmed.
Judgment affirmed.
MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur.