103 N.E. 136 (Ohio 1913), 14061, State Of Ohio v. Mccoy

Docket Nº:14061
Citation:103 N.E. 136, 88 Ohio St. 447
Opinion Judge:DONAHUE, J.
Party Name:State Of Ohio v. Mccoy.
Attorney:Mr. Charles H. Jones, for plaintiff in error. Mr. R. R. Lively, for defendant in error.
Judge Panel:SHAUCK, JOHNSON, WANAMAKER, NEWMAN and WILKIN, JJ., concur. NICHOLS, C. J., not participating.88 Ohio 456 (1913)
Case Date:October 07, 1913
Court:Supreme Court of Ohio
 
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Page 136

103 N.E. 136 (Ohio 1913)

88 Ohio St. 447

State Of Ohio

v.

Mccoy.

No. 14061

Supreme Court of Ohio

October 7, 1913

Indictment charging shooting with intent to kill, etc. - Includes lesser offenses of assault, etc. - Court in charge to jury omits mention of certain lesser offenses - Of which accused may be found guilty - Judgment of conviction not reversible for court's omission, when - General exception to charge of trial court - Does not raise question of error, when - Criminal law.

1. An indictment charging, in separate counts, shooting with intent to kill and shooting with intent to wound includes the lesser offenses of assault and battery and assault, and upon the trial of the accused upon such an indictment the jury may find the accused not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery or an assault only.

2. Where, upon the trial of a person charged by indictment with shooting with intent to kill and shooting with intent to wound, the court properly charges the jury upon all the issues in the case, except that it inadvertently omits to charge that the defendant might, if the evidence warrants, be found not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery, and the court's attention is not called to this omission, and no request to give such a charge is made, a judgment of conviction of the accused of shooting with intent to wound should not be reversed for such inadvertent omission of the court to so charge.

3. A general exception to the charge of a trial court does not raise any question of error as to the omission of the court to give further correct instruction, but presents only questions of errors of law existing in the charge as given. (Columbus Railway Co. v. Ritter, 67 Ohio St. 53, approved and followed.)

Albert McCoy was indicted by the grand jury at the January term, 1912, of the court of common pleas of Jackson county, Ohio. The indictment [88 Ohio St. 448] contained two counts, shooting with intent to kill and shooting with intent to wound. He was tried at the September term following and found guilty of shooting with intent to wound, as charged in the second count of the indictment. A motion for a new trial was overruled and the defendant sentenced. Error was then prosecuted by the defendant in the circuit court of Jackson county, which court at its December term, 1912, reversed the judgment of the common pleas court for the reason as stated in its journal entry, "because the general charge was misleading and failed to instruct the jury as to the lesser degree of assault and battery." The circuit court found no other or further error in the charge except the omission of the trial court to charge that the defendant under this indictment might be found not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery, and for this reason, and this reason only, the circuit court held the general charge misleading.

The state of Ohio now prosecutes this proceeding in error in this court to reverse the...

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