*1 of a intervening act The fact itself or is negligent in person
third BELL, Petitioner-Appellant, negligent manner done in harm to superseding cause of it a make negligent PERINI, actor’s Superintendent,
another E. P. Marion bringing factor in is a substantial duct Institute, Correctional about, if Respondent-Appellee. negli- his (a) the actor at the time of gent should have realized conduct act, might so or person
third United States the situ- (b) knowing reasonable man third existing when act of the ation person regard done it as was would not Argued 1980. Oct. extraordinary per- the third highly Decided Dec. * * acted, had so *. son Corporation, v. General Motors Comstock (Mich.
358 Mich. N.W.2d 447 of the
1958) (quoting from Section Torts). Restatement
Second found,
Because, court as district seams laps was notified that and
Bethlehem along the periodically discovered
were line, it was aware
Goodyear production inspec-
laps could elude a visual and seams
tion, though inspection even careful Thus, Bethle- these
would detect defects. was a factor negligence
hem’s substantial Ashley, and
bringing about harm as a negligence not serve
Goodyear’s did that would intervening cause
superseding liability. Goodyear
relieve Bethlehem joint are tortfeasors and
and Bethlehem properly
Michigan contribution statute holding that The district court’s
applied.2 - Goodyear liable to for one Bethlehem is judgment rendered is not
half of the argu- has considered the other
The court they are parties and concludes
ments
without merit. judgment of the district
Accordingly, the
court is AFFIRMED. pro applicable Michigan rata share of the defendant or defend- contribution statute making part: payment. ants such Joint tort-fea- to this case party third sors who are summoned as money (1) judgment has been Whenever may pursuant defendants like- to court against jointly 2 or more defend- recovered person No wise be liable for contribution. bodily injury or death ants in an action resulting compelled may pay other de- therefrom, damage, property or pro greater fendant an amount than rata paid part in full has judgment. share of the defendants, entire each de- 1 or more of such 600.2925(1) superseded M.C.L.A. M.C.L.A. pro paid has than his own fendant who more (Dec. 15, 600.2925a(l) 1974) (applicable to with is entitled to contribution rata share after torts committed on or paid the excess over and above so
burden of such affirmative defense by preponderance a of the evidence. State Seliskar, 35 Ohio St.2d N.E.2d 582 1, 1974, however, As of statutory provision new became effective. provision, That codified as Ohio Revised 2901.05(A), Code stated: (A) Every person accused of an offense presumed proven guilty is innocent until doubt, beyond a reasonable and the bur- proof upon den of prosecution. is Bell, pro Kenneth L. se. going burden of forward with the Aynes, Appellate Review Richard L. Of- evidence of an affirmative defense fice, Law, Akron, University of School upon the accused. Akron, Ohio, petitioner-appellant. Apparently, was not initial- Brown, Ohio, Atty. William J. Gen. ly effect any change considered to Div., Karas, B. Crim. Activities Simon Rich- previous fact, common law rule. In Drake, Gen., Attys. ard David Asst. Colum- Court, as late as reaf- bus, Ohio, respondent-appellee. firmed at least in a the principle dictum that a defendant must bear the burden of Before and MAR- BROWN affirmative prepon- defenses TIN, Judges. Circuit derance of Rogers, the evidence.1 State v. 43 Ohio St.2d BROWN, Judge. BAILEY petitioner in this case was indicted in petitioner, appeals aggravated 1975 for murder. At his peti- from the district court’s denial of his Bell testified that he had acted in self-de- corpus. tion for a writ of habeas Bell con- fense. The trial court instructed the tends that the at his without by Bell that it was incum- state criminal trial in Ohio shifted to bent on Bell to demonstrate self-defense by process, violation of due the burden of preponderance of the evidence. The disproving element of the offense for guilty found Bell of murder. He was sen- specifically, which he was indicted. More years tenced to a term of fifteen to life Bell contends that at his murder trial he imprisonment. was denied due because appealed Cuya- his conviction to the instructed that burden was on him hoga County Appeals. ap- Court of prove by preponderance peal, did not contention, resolving the evidence. In of the jury concerning self-de- development we first must review the April, fense. the Court of past. Ohio law in this area in the recent
affirmed Bell’s conviction. I. July, Ohio, Court of Prior Ohio followed the tradition- in State v. 47 Ohio St.2d al common law rule that the defendant in a N.E.2d held that R.C. only criminal case not had the substantially previously altered the ac- going support forward with evidence in cepted common law rule defining the bur- defense but also had the in criminal cases. The court Rogers, 05[C][2]) places going in dictum the burden of upon stated: forward with the evidence the accused (R.C. 290I.05[A]) issue using The defense of reasonable force to ef- preponderance of the evidence. See State v. necessarily fect a citizen arrest involves an Seliskar, supra, 35 Ohio St.2d 298 N.E.2d is, allegation justification, of excuse or therefore, (R.C. an affirmative defense 2901.- Accordingly, the district court require that a Robinson. construed R.C. petition, brought sufficient evi- and Bell go forward with defendant defense but appeal. raise the affirmative instant dence to such evi- if the defendant dence, then must demon- prosecution II. guilt doubt the beyond a reasonable strate *3 Engle, appeal The this court Isaac to the extent of defendant even of the 1980) essentially raised the same Inter- defense. disproving such affirmative pe- issue as is raised here. The habeas manner, the 2901.05(A) in this preting R.C. Isaac, there, was convict- titioner Lincoln any jury held Supreme Court in 1975 ed of felonious assault in Ohio proving placing the burden while Ohio Revised Code the defendant defense on trial, was in effect. At Isaac had relied on prejudicial constituted self-defense, offering a defense of suffi- Nonetheless, was subse- Bell’s conviction issue, cient evidence to create such and the affirmed the Ohio quently jury, without ob- trial court instructed appeal Bell’s Court when it dismissed jection from was on burden question. lack of a substantial constitutional by preponder- Isaac to self -defense jury of the The appeal, ance of the evidence. presented was not to or instructions Robinson, supra, in which relied on State v. rendering its deci- by the court in sidered had held that Court of Ohio sion. effectively placed the bur- deter- Court state, den on the when the issue is effec- law that mined as a matter of state State raised, tively proving of self-de- absence Robinson, supra, applied retroac- should beyond fense a reasonable doubt. The Ohio subsequent tively to all criminal cases tried held that Isaac had Humphries, to 1974. State in- jury waived his claim of error in the Ohio St.2d thereto, object citing by failing struction to court also held Humphries, procedural rule. The Ohio an Ohio Su- jury instruc- object the failure to appeal dismissed Isaac’s preme Court error effectively waived claim of tion question. constitutional lack of a substantial based on Robinson.2 day appeal, it dismissed Isaac’s On the same writ of petition filed a for a Bell supra, Humphries, it decided State proper federal court corpus habeas retroactive would be that Robinson validity of the constitutional challenging that, relying but on the Ohio contem- effect The district court instructions.3 rule, held that failure poraneous imposing on held that the object charge to the would to the a waiver. constitute with the Ohio law at were consistent dis- sought habeas relief in federal Isaac concluded, rely- It also time of Bell’s trial. court, such relief was denied on trict but New 432 U.S. ing on Patterson v. not shown ground that Isaac had 53 L.Ed.2d object to the “cause” for his failure impose the constitutionally so state could of such charge “prejudice” as a result on a defend- proving self-defense Wainwright v. required by as is charge held that Bell The district court also ant. 53 L.Ed.2d Sykes, process right to the retroactive had no due decision in 594 application to his case of the 1, 1978, determined since Bell 3. The district court
2. Effective November remedy by again which he adopt has no available state the common amended to once here, he has raise the issue could defendant has the burden law rule that the Respondent preponder- exhausted his remedies. affirmative defenses challenge ruling. evidence. ance of the decision,4 instructions that are appeal, On in an en banc consistent with majority court voted to reverse the Ohio law in 1975 as construed grant supra. relief district court and to to Isaac. majority were of the that Isaac of the district court re- “cause,” required by shown versed and the case is remanded. The dis- since, wright, time of his at the petition- trict court is directed to order that reasonably neither knew nor could have custody er be released from unless Ohio jury with charge known that to the retry him within chooses a reasonable to burden of as to self-de- time to be determined the district court. contrary law that
fense was
charge
constituted
denial of federal due
Judge, dissenting.
process.
majority
held that
also
I dissent from the
of the Court
had shown actual
since Isaac
for the same reasons
in my dis-
*4
testimony
had
made self- defense a
(6th
senting opinion
Engle
in Isaac v.
Cir.
plurality opinion
live issue in his trial. The
1980).
The basic reason
there
the writer
authored
contemporaneous
Ohio’s
opinion, held that
independent
ground
state
process by placing
federal due
for
the state court’s decision under
law,
trary
72,
2497,
wright
Sykes,
433
U.S.
self-defense. The plurality
reached
burden on Isaac purposes, equivalent placing on Isaac the bur- the absence of an element of
the crime of felonious assault. In re See:
Winship, 397 U.S. 90 25 S.Ct. (1970); Wilbur, Mullaney
L.Ed.2d 368
U.S.
S.Ct.
L.Ed.2d 508
(1975);
and Patterson v. New
CARPENTER,
James F.
crime that process requires federal due United States Court of prove. the state
III. Argued June case, We believe that in the instant Dec. Decided has likewise shown “cause” and required by Wainwright for the rea- sons plurality opinion stated in the in Isaac.
We further believe that Bell was denied
federal due reasons stated in plurality opinion Lastly, in Isaac. we
believe for the reasons stated in the
plurality opinion in Bell is entitled to panel opinion report- Engle
4. The ined