State v. Auerbach

140 N.E. 507, 2 Ohio Law. Abs. 8, 108 Ohio St. 96, 1923 Ohio LEXIS 241

Opinion

DAY, J.

Epitomized Opinion

First Publication of this Opinion

Auerbach was indicted for manslaughter. The evidence disclosed that on September 4, 1921, Auerbach while driving north on Ninth street in the City of Cleveland, Ohio, was directed by a traffic officer to turn into Walnut avenue, further driving north on Ninth street being prohibited by a parade. While in the act of turning into Walnut street, Auerbach struck and killed Thomas White, who was upon the cross walk at the time. Auerbach was then indicted upon the ground that he was running his motor vehicle in violation of G'C. 12603. Upon trial Auerbach was convicted.

During the proceeding the opinion of lay witnesses was offered in evidence as to the speed at which Auerbach was driving his automobile at the time of the accident. Erfor was prosecuted to the Court of Appeals upon two grounds: first, that the witnesses were not qualified to show ability to express an opinion as to speed, and, second, that the prosecuting attorney in his argument made comment which was improper and prejudicial. The Court of Appeals reversed the judgment of the lower court. In affirming the conviction and reversing the Court of Appeals, the Supreme Court hold, in its Official Syllabus, as follows:

1. It is a general rule that any person or ordinary intelligence, who has had an opportunity for observation, is competent to testify as to the rate of speed of a moving automobile; the qualifications of the witness to judge accurately going to the weight which the jury may give his testimony rather than to its competency. Unless an abuse of discretion appears in per-mitt’ng an expression of such opinion, no prejudicial error intervenes.

2. In a criminal case, where improper remarks are made in a closing argument by counsel for the State in reply to statements by counsel for the defendant upon the same subject-matter, and objection is made thereto by defendant’s counsel, and the court immediately instructs the jury to disregard such argument on behalf of the State and to draw no conclusion with reference to those particular matters prejudicial to the defendant, under such circumstances, no prejudicial error appearing to have resulted therefrom, a verdict will not be disturbed upon that ground.