335 N.E.2d 731 | Ohio Ct. App. | 1975
Defendant, Michael Larry, was indicted for manslaughter (Ohio Revised Code §
The defendant did not take the stand and presented only a medical witness (Tr. 3421). His co-defendant did testify and offered other evidence in her behalf. There was no State rebuttal and at the close of all the evidence appellant renewed his motion for acquittal. The motion was overruled (Tr. 347-349).
Appellant assigns one error:
"The trial court erred by failing to grant the defendant-appellant's motion for judgment of acquittal at the close of the evidence presented on behalf of the state of Ohio where such evidence was insufficient to sustain a conviction."2
For reasons assessed below we reverse.
If a defendant elects to proceed with his evidence after a denial of a motion for directed verdict or acquittal at the end of the State's case, he is deemed to have waived his legal objections, State v. Decamillo (1961), 86 Ohio Law. Abs. 432, 437-438; Ohio v. Houser (1942),
However, we need not reach the issue of co-defendant cure because it is not in this case. The State's evidence *94 with or without the combination of evidence offered by the defendant and his co-defendant was insufficient to raise a question for the jury. No witness was able to put the defendant at the scene of the crime at the time of its commission.
Careful reading of the record discloses that the State's witnesses indicated only that a child was being beaten, apparently by a shouting male at about 1 a. m. or 1:30 a. m. on July 30, 1973 (Tr. 165, 175), the day Vidal Bennett died, without ever coupling the voice to the defendant (Tr. 175). There was no other testimony identifying the assaulting male nor placing the defendant in the house at the crucial time. The only evidence linking the defendant to any beating related to beatings on other occasions than the one on trial (Tr. 75-77). The defendant's co-defendant, mother of the deceased child, did not place him at the scene at the crucial time.3 Neither did she say, or imply, that he beat the child. On the contrary, her testimony pictured the defendant as kind and loving toward the children especially the little boy who died (Tr. 270-271).
A conviction on this record is a conviction without evidence. That result is constitutionally proscribed, see Thompson v.Louisville (1960),
The verdict and judgment are reversed and the defendant is discharged.
Judgment reversed.
KRENZLER, C. J., and JACKSON, J., concur.