I must disagree with my associates in the disposition of this cause.
According to the narrative bill of exceptions, which includes the sole evidence before the trial court and this court, the state patrolman testified with relation to the time and place of the offense charged "* * * that the defendant and the operator of the other car stopped side by side at this intersection [Richey Road and Convoy Road], and after a few seconds both cars accelerated rapidly, side by side, for a distance of two to three hundred yards at speeds in excess of the prima facie lawful speed for the night season, to wit, at a speed in excess of fifty miles per hour, after which one car pulled ahead of the other car and into his proper lane of traffic. Patrolman Wood then testified that he was sufficiently close to both automobiles to obtain an accurate clock of their speeds at this time, and which clock he did so make * * *." In my opinion, this is positive testimony that he clocked both cars at a speed in excess of 50 miles per hour and does not constitute, as stated in the majority opinion, a significant failure to state the speed at which he clocked the defendant. *Page 130
The patrolman's testimony tended to prove facts prescribed by the Legislature to be prima facie evidence of the facts constituting the crime of drag racing. (Section 4511.251, Revised Code.)
In the absence of explanation or contradiction by other competent evidence, proof of a crime by proof of facts constituting prima facie evidence thereof may withstand the test of proof beyond a reasonable doubt. However, to overcome a case made by prima facie evidence, the evidence in explanation or contradiction must be credible.
In the instant case, the explanation of their stopping side by side and the contradiction of their rapidly accelerating from a starting point to a speed in excess of prima facie lawful speed was supplied by the testimony of the defendant and his friend, the driver of the other car. Since such latter evidence was in exact contradiction to that of the state patrolman, it must be concluded that either the state patrolman could not be believed or the defendant and his friend could not be believed. Their respective credibility was, in the absence of a jury, wholly within the province and discretion of the trial court, and, had the trial court arrived at its conclusion that the testimony of the defendant and his friend could not be believed without error, the case made by the prima facie evidence would stand, and such case would likewise withstand the test of proof beyond a reasonable doubt.
However, the trial court stated in his opinion that "from theevidence showing defendant's prior handling of an automobile,together with his appearance and attitude in court, it is felt that any thinking jurist could come to but one conclusion: that is, in this case, to accept the state highway patrolman's word with reference to the drag racing." (Emphasis added.)
Defendant had testified, on cross-examination, that he had totally wrecked another automobile a year or so before trial, and in reply to questions by the court answered that "he didn't know what happened * * * that he didn't make a curve on the Walnut Street Road and just cracked up his Mercury." On redirect, he testified that he had never been "convicted or pleaded guilty to any offense as the result of this accident on Walnut street," and that a deputy sheriff had "investigated the accident, and advised the defendant that no charge would be made *Page 131 against him." This constituted the entire testimony as to the circumstances of the wreck.
Although this testimony as to the wrecking of another car was admitted without objection, it was not in any manner relevant to the issues of this criminal case, and, upon objection, should have been excluded. Nevertheless the trial court concluded from this evidence:
"That only a short time ago, the defendant wrecked his automobile for no apparent reason, other than just inattention todriving, or excessive speed. The court, when hearing this testimony, felt that under the circumstances related, a reasonable and prudent driver would not have wrecked this car at this time. The court finds from the evidence that the defendant, if not a so-called hot rodder, certainly borders on same; that his reputation in the past has been one of being pretty much of a wise guy when operating a motor vehicle." (Emphasis added.)
In my opinion, there was no evidence as to the reason for the wreck, and none to justify the conclusions drawn by the court.
In any case, the evidence was not relevant to the issues and, having no probative value as to credibility, it should not have been considered in any way determinative of the credibility of defendant. As stated in 98 Corpus Juris Secundum, 324, Witnesses, Section 460, "it is not proper for the triers of fact to consider matters which, even if true, would not have any legitimate tendency to lessen the credibility of the witness." As it was so considered, the trial court abused its discretion, committed prejudicial error, and its conclusion that the defendant could not be believed cannot be accepted as conclusive. With such irrelevant evidence excluded from consideration the trial court might have arrived at a different, and opposite, conclusion as to defendant's credibility. And if a different conclusion as to defendant's credibility should be arrived at it would also, of necessity, result in a different conclusion as to the credibility of the state patrolman. If the state patrolman cannot be believed it would necessarily follow that there is no prima facie evidence, as provided by Section 4511.251, Revised Code, of the commission of the crime, and the case fails, not because of reasonable doubt, but because of complete failure of proof of the elements of the crime. *Page 132
The conclusion of the majority of this court that the defendant should be discharged is consistent only with a determination by the majority that the state patrolman could not be believed and that the defendant, or his friend, could be believed, which determination is, of course, contrary to that of the trial court.
However, it is basic law that appellate courts, in an appeal on questions of law, have no authority to determine the credibility of witnesses, and to so determine constitutes reversible error. Credibility of witnesses is solely within the province of a jury, except when a case is tried without a jury, and it is then solely within the province of the trial court. As stated by the Supreme Court in the case of In Re Lieberman,163 Ohio St. 35, at page 39:
"Whether there is sufficient evidence to sustain the finding of the trial court is a question of law. If the Court of Appeals had determined in this case that the finding was not sustained by sufficient evidence, it would have been justified in dismissing the charges. And in an appeal on questions of law, if there is sufficient evidence in the record to warrant the finding of the Court of Common Pleas, the Court of Appeals may nevertheless decide that such finding is against the weight of the evidence. In that event, the only power of the Court of Appeals is to order a new trial. State v. Robinson, 162 Ohio St. 486. But the Court of Appeals can not substitute its judgment as to what the evidence shows for that of a jury or a three-judge court.State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517;Henry v. Henry, 157 Ohio St. 319, 105 N.E.2d 406."
In the third paragraph of the syllabus of the Lieberman case the Supreme Court held:
"The determination of the credibility of such witnesses is for the trial court, and the Court of Appeals may not substitute its judgment as to such credibility for that of a three-judge trial court."
In determining whether evidence is sufficient to constitute proof beyond a reasonable doubt, Judge Robinson, in his opinion, in Cooper v. State, 121 Ohio St. 562, concurred in by five other members of the Supreme Court, and cited in the majority opinion, stated, at page 570:
"The instant case presents a situation where the Court of *Page 133 Appeals was called upon to determine whether there was proof beyond a reasonable doubt, if it believed all of the evidence ofthe state and disbelieved all of the evidence of the defensefavorable to the defendant; and, so considering it, that court was in doubt as to whether the element of deliberation and premeditation had been proven by the degree of proof required in criminal cases, and, being in doubt, its duty was to reverse andremand. * * *" (Emphasis added.)
If there is no competent evidence of a particular element of a crime, then the evidence is insufficient for conviction and the defendant should be discharged, but if the evidence is in conflict the rule to be applied is that expressed in the eighth paragraph of the syllabus in State, ex rel. Squire, Supt., v.City of Cleveland, 150 Ohio St. 303, which applies:
"Where the evidence in a case is conflicting or where reasonable minds might differ as to the inferences to be drawn therefrom, both the trial court and the Court of Appeals are authorized and required upon motion to weigh the evidence, but in such a situation the Court of Appeals on an appeal on questions of law cannot as a matter of law find the facts otherwise than as found by the trier of the facts. In such a situation the solefunction of the Court of Appeals is to weigh the evidence andeither affirm the finding of the trier of the facts or, if suchfinding be against the weight of the evidence, set it aside andremand for a new trial." (Emphasis added.)
This rule is as applicable to criminal cases as it is to civil cases. See 3 Ohio Jurisprudence (2d), 829, Appellate Review, Section 823, and authorities there cited. See, also,State v. Moreland, 16 Ohio App. 515, particularly in point.
The author of this dissenting opinion does not agree that either the case of State v. Clark, 92 Ohio App. 382, or the case of State v. Miclau, 104 Ohio App. 347, constitutes valid authority to discharge the defendant, as claimed in the majority opinion, for in the Clark case the court referred, among other things, to "the insufficiency of proof as to the element of wilfulness," and in the Miclau case, one of the appellate judges, concurring in an order of discharge, determined that much of the evidence necessary for conviction was incompetent by reason of the manner in which it was obtained, and the other determined that the defendant should be discharged because "there is no evidence in *Page 134 the record to substantiate the charge." The Supreme Court's affirmance of the judgment in the Miclau case (167 Ohio St. 38) decided, in essence, that there was a failure of proof of aiding, abetting, etc., the delinquency of a minor child because there was no proof of the delinquency of such child, and the majority of the Supreme Court specifically stated that they expressed "no opinion with respect to the other questions of law considered in the two concurring and the dissenting opinions of the Court of Appeals."
It is my conclusion, therefore, that, although the credibility of the witnesses was solely a matter for the trial court so long as he did not abuse his discretion in regard thereto, nevertheless, he did abuse his discretion and commit prejudicial error by basing the credibility of the defendant on evidence which was not relevent to the issues of the case and which had no probative value as to credibility; that by reason of this error the trial court's determination of credibility may not be accepted; that the evidence as to the commission of the crime remains in conflict; that this conflict of evidence creates a doubt as to the existence of prima facie evidence proving the elements of the crime charged; that this conflict and resulting doubt may be resolved only by a proper determination of credibility; that credibility being solely within the province of the trial court it cannot be determined by the appellate court; and that by reason of the prejudicial error, the resulting conflict of evidence, and the lack of authority of the appellate court to resolve the conflict, the judgment of the trial court must be reversed, and the cause should be remanded to the trial court for new trial and further proceedings as provided by law. *Page 135