Opinion
No. 69-421
Decided May 6, 1970.
Criminal law — Plea of not guilty — State to prove all material facts — Carnal knowledge of insane person — R.C. 2905.06 — Insanity an essential element — Judge's intimation to jury of his opinion of victim's sanity, error — Not cured by admonition to jury.
1. A plea of not guilty by an accused requires the state to prove all material facts relating to the crime with which he is charged, including those relating to the corpus delicti. Under the provisions of R.C. 2905.06, one of such essential elements is the insanity of the woman. (Paragraph three of the syllabus of Morgan v. State, 48 Ohio St. 371, approved and followed.)
2. Where, in the trial of an accused under R.C. 2905.06, the trial judge informs the jury of his ruling as to the competency of the woman-victim to testify, and intimates to the jury his opinion as to her sanity, insanity being an essential element of the crime charged, the court commits error prejudicial to the defendant which cannot be cured by later admonishing the jury to disregard such statements.
APPEAL from the Court of Appeals for Ashtabula County.
On November 14, 1967, Richard Earl Nutter was convicted in the Court of Common Pleas of Ashtabula County of violating R.C. 2905.06. Section 2905.06 provides, in pertinent part:
"No male person over seventeen years of age, shall have carnal knowledge of an insane woman who is not his wife, knowing her to be insane."
Defendant appealed his conviction to the Court of Appeals of the Eleventh Appellate District which reversed the conviction and ordered the trial court to grant defendant's motion for a new trial. The case is in this court pursuant to leave granted to the state to appeal the Court of Appeals' judgment of reversal.
The trial judge informed the jury that in their absence he had determined that defendant's alleged victim was incompetent to testify. The Court of Appeals held that the trial judge's statements not only implied that the alleged victim was insane, but also usurped the functions and duties of the jury by informing the jury of his voir dire incompetency ruling, when insanity was one of the essential elements of the crime sought to be proved. The Court of Appeals held further that the admonitions to the jury, to disregard the trial judge's finding of incompetency as a witness, could not be effective when the legal conclusion that a witness is not competent to testify so closely parallels a required fact finding of insanity by the jury.
The judge commented to the jury as follows:
"Concerning the second of those issues, I will make a brief explanation to you. It concerned the question or issue as to whether or not Diane Dickson, named as the victim, shall we say, the girl named in the indictment here, is or is not as a legal proposition a competent witness, a person competent to testify in this case. And the court having heard evidence on that issue has concluded that she is not."
Later in his general instructions the trial judge remarked as follows:
"In a separate voir dire examination by the court early in this trial, * * * the court determined that Diane Dickson was not competent to testify as a fact witness. This may not be considered by you as evidence pro or con on the issue of her being or not being an insane woman as that term has just been defined, because under some circumstances even an insane woman may be a competent witness."
The state argues that it was not reversible error for the court to relate to the jury its voir dire finding made out of the presence of the jury because there was sufficient evidence to support a finding of insanity without the court's comments.
Mr. Robert Webb, prosecuting attorney, and Mr. Louis A. DiFabio, for appellant.
Mr. Tom R. Bailey, for appellee.
Before proceeding, it is relevant to set forth some fundamental principles which serve as the basis for this decision. First, a plea of not guilty requires the state to prove all material facts including those relating to the corpus delicti. Morgan v. State, 48 Ohio St. 371, paragraph three of the syllabus. The corpus delicti of a crime is the body or substance of the crime and includes the criminal act itself. State v. Maranda, 94 Ohio St. 364, paragraph one of the syllabus. Moreover, the state, in proving the corpus delicti, must establish by evidence each essential element of the crime as charged and as specified in the statute. State v. Miclau, 167 Ohio St. 38, paragraph one of the syllabus.
The state's burden in establishing the guilt of an accused is to prove each element beyond a reasonable doubt. R.C. 2945.04. Since the existence of an element of a crime is a factual matter, it is within the peculiar and exclusive province of the jury to determine that question of fact. See R.C. 2945.11; Robbins v. State, 8 Ohio St. 131. In addition, Sections 5 and 10 of Article I of the Ohio Constitution, which declare the inviolability of a jury trial and guarantee an accused an impartial jury, inferentially require that factual questions relating to the crime are within the exclusive province of the jury.
In the instant case, the defendant was tried and convicted of violating R.C. 2905.06. To prove the accused guilty the state had to prove that the defendant was over 17 years old; that the defendant had carnal knowledge; that the woman was insane; that the woman was not his wife; and that the defendant knew of the insanity. The existence of each of these elements was exclusively a jury question. (See discussion, supra, concerning proof of elements.)
The trial judge, however, invaded the province of the jury when he made two statements (see footnote one) concerning the incompetency of the alleged victim to testify. We agree with the Court of Appeals that the statements not only implied that the woman was insane but also partially usurped the function of the jury by giving the trial court's inferential opinion as to the existence of an essential element of the crime.
It is well to remember the time-honored principle that "issues of fact * * * are to be tried by a jury. When they are so tried, the jury, and not the court, are to find the facts * * *." Thayer, A Preliminary Treatise on Evidence, 189. It follows that any expression of the trial court, and particularly any positive statement to the jury which indicates or even intimates to the jury the court's opinion on the facts in evidence is error. See Zimmerman v. State, 42 Ohio App. 407, 408.
Defendant in his brief and argument sets forth other claimed errors of law in the trial court proceedings. The Court of Appeals found error concerning the matters discussed hereinabove, and no other. In the absence of defendant's cross-appeal, such other claimed error is not before this court.
The judgment of the Court of Appeals, reversing the judgment of the Court of Common Pleas and ordering a new trial, is affirmed.
Judgment affirmed.
O'NEILL, C.J., LEACH, SCHNEIDER, HERBERT and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.