Albert McElroy, Malcolm Masters and Bobby McCurdy were each separately indicted on a charge that they did assault Martin Scott, by means of force likely to produce great bodily harm contrary to, and in violation of, Section 2901.241, Revised Code.
Section 2901.241, Revised Code, provides:
"No person shall assault another with a dangerous weapon or instrument or by other means or force likely to produce death or great bodily harm.
"Whoever violates this section shall be imprisoned in the penitentiary not less than one nor more than five years."
After entering pleas of "not guilty," Albert McElroy and Bobby McCurdy were jointly tried. The jury returned *Page 113 separate verdicts finding Albert McElroy and Bobby McCurdy each "Guilty of `Aggravated Assault, R. C. Section 2901.241' in the manner and form as he stands charged in the indictment."
Albert McElroy and Bobby McCurdy were, thereafter, sentenced to the Ohio State Penitentiary, Columbus, Ohio, for terms of one to five years, pursuant to Section 2901.241, Revised Code, and each has timely perfected an appeal.
On the morning in question there was a disturbance from the loud playing of a record player in an apartment occupied by Mr. and Mrs. Albert McElroy. Mr. Clyde Fouts and George E. Shively were tenants in other apartments in the building. Mr. Fouts and Mr. Shively both made complaints, and Mr. Shively, after complaining to Patrolman Martin Scott at the bottom of the stairway, walked up the stairway with the patrolman but then went to his own apartment, while Patrolman Scott went to the McElroy apartment. Patrolman Scott after knocking was invited into the apartment by Albert McElroy. Malcolm Masters and Bobby McCurdy were also present in the apartment. Following some conversation between the McElroys and Patrolman Scott concerning the disturbance, a fracas ensued between Albert McElroy and Patrolman Scott, which lasted for only about a minute. Concerning the fracas the pertinent testimony of Patrolman Scott is set forth in the majority opinion. Albert McElroy and Bobby McCurdy also testified, and George E. Shively was called as a witness for the state.
Pertinent portions of Albert McElroy's testimony are as follows:
"Q. You hit him?
"A. Yes, when he was gonna swing that slapstick at me.
"Q. What did you hit him with?
"A. My fist.
"Q. Where did you hit him?
"A. I don't know. I just hit him.
"Q. What happened then?
"A. Well, we rolled against the bed. And finally I *Page 114 got him out of the bed and got him out to the hall, and that's when Malcolm Masters and Bob McCurdy, they pulled me off from him."
"Q. Now, seeing as how you were the, seemingly the basic participant in this thing, did Mr. McCurdy, in any way — Well, what could you tell us about Mr. McCurdy's actions towards Mr. Scott?
"A. There wasn't no actions. Mr. McCurdy, the only thing, talked to me and told me to get off from him."
"Q. What happened when you hit him?
"A. I knocked him through my living room onto my bed and we was wrestling and, after that, I don't know where his slapstick was. I got him out into the hall and Bob and Malcolm Masters peeled me off of him."
"A. I hit him and then he grabbed hold of my shirt and tore my shirt and, when we went, we fell across the bed and wrestled, and then we got up and off the bed and onto the floor and out into the hall, and that is when Bob and Malcolm had a-hold of me pullin' me off of him.
"Q. Now you hit him and knocked him through the one door into the bedroom, right, or did he grab your shirt when you hit him?
"A. He grabbed my shirt when I hit him and his weight and my weight, we went on the bed.
"Q. In the bedroom?
"A. Yes, sir.
"Q. But this swingin' took place in the front room, did it not?
"A. In the middle of the front room, yes.
"Q. Well, if he had a chance to grab your shirt, Mr. McElroy, don't you think he'd have had a chance to use this slapstick?
"A. I don't know. He pulled it. I hit him. I didn't hit him that hard.
"Q. Well, you bloodied his nose and so forth. You must have took a pretty good swing at him, didn't you?
"A. I don't know. Maybe his nose bleeds easy."
"A. * * * Me and him, we wrestled out into the hall off of the bedroom. *Page 115
"Q. In other words, there wasn't anyone here involved except you?
"A. As far as any fightin', no.
"Q. You don't remember these other two guys being in on the fight itself?
"A. No."
Pertinent portions of Bobby McCurdy's testimony are as follows:
"Q. Now, did you see the incident which happened in the apartment?
"A. I was still sitting at the kitchen table when the incident started.
"Q. Now when did you become involved in the incident?
"A. When Mr. McElroy's wife said, `Get Abe off of him.'"
"Q. Now, what did you do at that time?
"A. I grabbed Abe and Malcolm both. They were both on him and I was trying to get one or the other one off of him.
"Q. Now, did you see any evidence of either Mr. Masters or Mr. McElroy taking a swing?
"A. No, I did not, sir."
"Q. Now, did you manage to pry any of the parties apart?
"A. Yes, sir. I managed to get Malcolm clear away from him, and I tried to get Abe, and I talked to Abe enough to get him cooled down and he was standing there.
"Q. But you didn't actually see the fray in the apartment itself?
"A. No, sir.
"Q. Did you in any way participate in it?
"A. No, sir."
"Q. Well, when Mrs. McElroy said to you, `Get Abe off of this fellow,' what did you discover when you went into the other room?
"A. I got to the hall and Abe and Malcolm was out there and had a hold on him out in the hall. They had him pushed up against the wall. *Page 116
"Q. What hall are you talking about, the hall outside the apartment or the hallway inside the apartment?
"A. There's no hallway inside the apartment.
"Q. In other words, by the time you got there, these parties were clear out in the hallway which is a part of the apartments?
"A. Yes, sir."
"Q. And when you saw Mr. Shively, at that point, were you backing up towards the other end of the hall or did you start to back up when you saw Mr. Shively?
"A. I had ahold of Malcolm pulling Malcolm back when Mr. Shively come out."
Mr. George E. Shively, the only disinterested witness, who had lived in another apartment in the building and had complained to Patrolman Scott, was called as a witness for the state and on direct examination testified as follows:
"Q. When you got down to the bottom of the steps, Mr. Shively, did you have a conversation with Mr. Scott?
"A. I did.
"Q. Did you request anything of him?
"A. I told him there was a lot of noise upstairs.
"Q. And did he go up to investigate the noise?
"A. He said, `I can hear the radio down here,' and he went upstairs.
"Q. Then did you again see Mr. Scott, Mr. Shively?
"A. I did.
"Q. When did you next see him?
"A. Well, when he went upstairs, I went back into my apartment, and I couldn't accurately set the time or the time elapses, but I heard a commotion out in the hallway, so I came back out of my apartment.
"Q. And what did you see when you came back out of the apartment?
"A. Well, there was Patrolman Scott and the defendants beside the staircase going up to the third floor apartment of Mr. Fouts, and Patrolman Scott was against the wall being restrained.
"A. I saw three men: Mr. McCurdy, Mr. McElroy, and evidently Mr. Masters. *Page 117
"Q. And how many men had Mr. Scott restrained against the wall?
"A. I would say two. There was three men there.
"Q. Do you know which two it was, or which one it was, besides Mrs. McElroy?
"A. Well, Mr. McCurdy was, in my estimation, trying to restrain Mr. Masters. In other words, he had his hand like he was tryin' to pull him back."
"Q. Well, Mr. Shively, you say Mr. McCurdy backed off. Was he over where Mr. Scott was then at the time you first came out of your apartment?
"A. He was in the vicinity.
"Q. All three of them?
"A. As I said, he was, to my knowledge or to my presumption, he was trying to restrain Mr. McElroy.
"Q. Did you go to the Carrousel Club then, Mr. Shively?
"A. I did.
"Q. What did you do when you got down to the Carrousel Club?
"A. I opened the phone booth and called the station. I had a direct order from Patrolman Scott to call the station."
On cross-examination, Bobby McCurdy admitted entering pleas of guilty to charges of assault filed against him six to eight years previous to the present charge of aggravated assault.
As against the evidence of the complaining witness that Bobby McCurdy was trying to get at him between the other two, the record presents the evidence of the defendant Albert McElroy admitting that he was the assailant but stating that Bobby McCurdy was trying to stop him; the testimony of Bobby that he grabbed Abe and Malcolm and was trying to get one or the other one off Scott; and, much more important, the testimony of George Shively, a disinterested eyewitness, who, on direct examination as a witness for the state, testified that Bobby McCurdy was trying to restrain Masters and McElroy.
Absent the testimony of the state's own disinterested eyewitness given on direct examination, I would concur in *Page 118 the affirmance of both judgments of conviction and sentence, but in view of the testimony of the state's own eyewitness, given upon direct examination, which corroborates the testimony of both defendants, I cannot concur in the holding of the syllabus that all matters of sufficiency and/or weight of the evidence must necessarily be determined by the jury upon the issue of credibility alone in such manner as to preclude an appellate court from making any determination of the sufficiency of the evidence after consideration of the nature of the evidence as a whole.
Upon consideration of the evidence as a whole, in my opinion the evidence produced fails to attain the high degree of probative force and certainty which the law demands to support a conviction of Bobby McCurdy of aggravated assault as charged. If Bobby McCurdy is convicted upon the evidence contained in this record, we have an explanation of why any person with a past record and similar associations, neither of which affords substantive proof of guilt, would be justified in not giving assistance to a person attacked because he cannot afford to take the risk of becoming involved in any fracas which may result in his conviction for aggravated assault and imprisonment in the penitentiary for a period of one to five years, upon the statement of a complaining witness that he was trying to get at him between his two attackers, even though the testimony of the assailant and of a disinterested witness called by the state on direct examination exonerates him.
I would affirm the conviction and sentence of Albert McElroy, but I would reverse the conviction and sentence of Bobby McCurdy because of insufficiency of the evidence to support the conviction of aggravated assault as charged, by proof beyond a reasonable doubt, and would enter judgment that Bobby McCurdy be discharged. *Page 119