State v. Mitchell

60 N.E.2d 816, 38 Ohio Law. Abs. 499, 1943 Ohio App. LEXIS 930

• Court: Ohio Court of Appeals
• Decided: March 8, 1943
• Docket: No. 6186
• Status: Published

Opinion

OPINION

PER CURIAM:

The judgment in this case, in favor of the State of Ohio, must be affirmed, for the reason that error, prejudicial to the appellant does not affirmatively appear in the record. There is a presumption In favor of the judgment of the trial court. In Makranczy v Gelfand, Admr., 109 Oh St, 325, the first paragraph of the syllabus is:

“The proceedings of a lower court are deemed correct unless error affirmatively appears on the face of the record. Evidence to ■authorize the judgment will be presumed to have been received ■unless the record necessarily negatives it.”

See also: Brockmeyer v Cincinnati Dowel & Wood Products Company, No. 6173, Hamilton county, decision by this court, November 23, 1942. (37 Abs. 489).

It is the claim of the appellant that there was no evidence to-sustain the charge that the defendant fired the shot. In the alternative, it is claimed that the judgment is against the weight of the evidence on the question of his presence at the place of the crime.

There is no certificate in the bill of exceptions, which is in narrative form, that it contains all the evidence introduced at che trial.

The presumption referred to, therefore, prevents this court from speculating that the evidence presented constituted all the evidence examined by the court. Even if we were to find that the evidence contained in the bill was insufficient to convict, we would be required to presume that other evidence was introduced justifying the conclusion of the court.

The judgment is affirmed.

ROSS, P. J., HILDEBRANT and MATTHEWS, JJ., concur.