Lewis J. Adams v. The State of Ohio.
On the trial, under an indictment for burglary, every essential element in the charge must be proved beyond a reasonable doubt; and it is misleading to instruct the jury, “ that it is not necessary that every fact requisite to constitute burglary should be proved beyond a reasonable doubt, but the jury must look to all the facts and circumstances and be able to say that the' defendant is guilty beyond a reasonable doubt.”
Error to the'Court of Common Pleas of Logan county.
At the November term, 1877, of the Court of Common Pleas of Logan county, the plaintiff in-error was convicted •of the crime of burglary. On the trial., testimony was offered tending to prove the several averments in the indictment, and the court charged the jury, among other things, that each of the facts requisite to constitute burglary, .including the averment that the breaking and entering were committed in the night season, “ must be proved to a reasonable certainty” in order to convict the defendant, “ and that the jury could not convict the defendant unless they found him guilty of the charge against him beyond a reasonable doubt.”.
Thereupon the defendant requested the court to charge the jury, “that if upon the evidence there is a reasonable doubt whether the breaking and entei-ing were in the night season, or in the morning after it was light enough to discern the countenance of a man, the defendant could not be convicted of burglary.” This request the court refused to give and did charge, “that it is not necessary that every fact requisite to constitute burglary should be proved beyond a reasonable doubt, but the jury must look to all the facts and circumstances and be able to say that the defendant is guilty beyond'a reasonable doubt.”
William Lawr'ence and Joseph Lawrence, for plaintiff' in error,
cited Insurance Company v. Insurance Company, 5 *463Ohio St. 450; White v. Thomas, 12 Ohio St. 313; Railroad v. Wetmore, 19 Ohio St.-118; Railroad v. Slosser, 19 Ohio St. 161; Railroad v. Stallman, 22 Ohio St. 1.
6r. H. Emerson, for the state,
cited Clark v. The State, 12 Ohio, 496; 3 Greenleaf 28, n.; Commonwealth v. Webster, 5 Cush. 320.
Isaiah Pillars, attorney-general, also for the state.
By the Court.
An essential element in the crime of burglary is that the breaking and entering must be committed in the night season, and this element must be proved beyond a reasonable doubt, otherwise the accused should be acquitted.
To say the least, the instructions of the court were of doubtful meaning, and the jury may well have understood from the charge that this element, though a requisite in the crime, need not be proved beyond a reasonable doubt. The charge was misleading, and for that reason the judgment •must be reversed and a new trial granted.
Judgment accordingly.