Later courts went against this
Overruled by State v. Jenks, 61 Ohio St. 3d 259 (1991)
37 Ohio St. 2d 157 (1974), overruled on other grounds by State v. Jenks, 61 Ohio St. 3d 259
Overruled — as noted by a later court
(1974), 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, is overruled.
medium confidence
Distinguished
Distinguished by State v. Goodin, 56 Ohio St. 2d 438 (1978)
It is claimed by the prosecution that the Court of Appeals, in so ruling, substituted itself for the jury and that this court’s holding in Kulig is distinguishable upon the basis that in that case “a serious lack of evidence, direct or circumstantial” was found.
The opinion
Herbert, J.,
concurs in part and1 dissents in part. I concur in the reversal of appellant’s conviction, hut am convinced by the record that the cause should be remanded for a new trial.
If the trial court had more fully instructed the jury concerning appellant’s rights and duties as a fiduciary, a verdict of guilty would have been legally permissible under the evidence adduced.
Additionally, I must disagree with the majority’s appraisal of State v. Murphy (1964), 176 Ohio St. 385 , 199 N. E. 2d 884 ; State v. Petro (1947), 148 Ohio St. 473 , 76 N. E. 2d 355 ; and Atkins v. State (1926), 115 Ohio St. 542 , 155 N. E. 189 . As I read those cases, they do not stand for the proposition that this court will weigh evidence in a criminal case. They hold that we will examine the record of a criminal trial to determine whether evidence was presented, “which, if believed, would convince the average mind of defendant’s guilt beyond a reasonable doubt.” (Emphasis added.) Atkins v. State, supra, at page 515.
Weighing evidence is not synonymous with determing its legal sufficiency. See Ace Steel Baling v. Porterfield (1969), 19 Ohio St. 2d 137 , 249 N. E. 2d 892 ; O’Day v. Webb (1972), 29 Ohio St. 2d 215 , 280 N. E. 2d 896 ; Citizens Financial Corp. v. Porterfield (1971), 25 Ohio St. 2d 53, 58 , 266 N. E. 2d 828 .
Where the review has been of a criminal conviction, this court has often stated that it will examine the evidence to determine whether the rule of law requiring a higher quantum of proof in such cases has been followed. E. g., Atkins, Murphy and Petro, supra. However, the court has never before agreed to weigh the evidence in making that determination. Fortunately, the statement in the ease at bar, concerning the weighing of evidence, is dicta.