Decided June 24, 1964.
Criminal law — Threat or harassment in telephone communication prohibited — Section 4931.31, Revised Code — Evidence necessary to convict.
APPEAL from the Court of Appeals for Cuyahoga County.
The appellant, Herbert E. Murphy, hereinafter called defendant, was arrested without a warrant on July 21, 1962, in Berea, Ohio, by an officer of the Middleburg Heights Police Department. Later in the same morning, the complainant, Mary Ann Kruichuk, executed the affidavit upon which the warrant was issued. The affidavit provides in pertinent part:
"Before me, Andrew H. Rosbough, Mayor of the City of Middleburg Heights, personally appeared one Mary Ann Kruichuk who being duly sworn according to law, deposes and says, that on or about the 21st day of July, 1962, at the city of Middleburg Heights, in said County and State, one Herbert E. Murphy did violate revised code State of Ohio 4931.31, that he did harass and caused her to become ill by a series of telephone calls, and did threaten to enter my home in violation of law, and further says not."
On December 20, 1962, defendant pleaded not guilty and waived a jury trial, and a trial was had. Defendant did not testify, presented no witnesses or evidence, and was found guilty. The Court of Appeals affirmed the conviction without written opinion.
The cause is before this court on appeal as of right and upon the allowance of a motion for leave to appeal.
Mr. Howard W. Broadbent, for appellee.
Mr. Stephen J. Knerly, for appellant.
Section 4931.31, Revised Code, which defendant is alleged to have violated on July 21, 1962, provides in pertinent part: "No person shall, while communicating with any other person over a telephone,  threaten to do bodily harm  or use or address to such other person any words or language of a lewd, lascivious, or indecent character, nature, or connotation for the sole purpose of annoying such other person;  nor shall any person telephone any other person repeatedly or cause any person to be telephoned repeatedly for the sole purpose of harassing or molesting such other person or his family."
In criminal cases this court is not required to weigh the evidence. Section 2953.02, Revised Code. Ordinarily, it will not do so. However, it may examine the record to determine whether the evidence produced attains that high degree of probative force and certainty which the law demands to support a conviction under the applicable criminal statute. State v. Urbaytis (1951), 156 Ohio St. 271; State v. Petro (1947), 148 Ohio St. 473; Atkins v. State (1926), 115 Ohio St. 542.
The record in this case has been examined to ascertain whether there is direct or circumstantial evidence, which shows that defendant telephoned "any other person repeatedly * * * for the sole purpose of harassing or molesting such other person or his family", which is conduct proscribed by Section 4931.31, Revised Code. In the opinion of the majority of this court, proof of only three telephone calls in July 1962, one of which was initiated by the complainant, which calls did not involve a threat of bodily harm or the use of lewd, lascivious, or indecent language, does not establish that defendant telephoned the complaining witness repeatedly for the sole purpose of harassing or molesting her or her family. Such being our view, it is unnecessary to consider the many constitutional and procedural questions raised by the defendant.
TAFT, C.J., ZIMMERMAN, HERBERT and GIBSON, JJ., concur.
MATTHIAS, O'NEILL and GRIFFITH, JJ., dissent.