State Of Ohio v. Mccoy

Decision Date07 October 1913
Docket Number14061
Citation103 N.E. 136,88 Ohio St. 447
PartiesState Of Ohio v. Mccoy.
CourtOhio Supreme Court

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 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 judgment of the circuit court.

Mr Charles H. Jones, for plaintiff in error.

Mr. R R. Lively, for defendant in error.

DONAHUE J.

The record in this case presents but one question. It is not contended that the charge as given is incorrect in any particular except in the omission of the court to inform the jury the under this indictment it might find the defendant not guilty of shooting with intent to kill and not guilty of shooting with intent to wound but guilty of assault and battery. The defendant did not specifically request such a charge to be given, nor did he specifically except to the charge as given, but did except to the charge generally. It is now the settled law of this state that an indictment charging shooting with intent to kill or shooting with intent to wound, or both of these offenses, includes the lesser offenses of assault and battery and assault. Stewart v. State, 5 Ohio 241; White v. State, 13 Ohio St. 569; Keller v. State, 23 Ohio St. 582; Marts v. State, 26 Ohio St. 162; State v. Johnson, 58 Ohio St. 417; Lindsey v. State, 69 Ohio St. 215.

Section 13692, General Code, provides, among other things, that "When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof."

Section 13675, General Code, regulates the procedure in the trial of criminal cases. Paragraph 7 of that section requires that after the argument is concluded and before proceeding with other business the court shall forthwith charge the jury. This statute was passed after the decision of this court. In the case of Jones v. State, 20 Ohio 34, and the conclusion reached in that case was predicated upon the fact that there was then no rule of law requiring the court of its own motion to instruct the jury. For that reason that case has no application to the case at bar, because Section 13675, General Code, now makes it the duty of the trial court to charge the jury forthwith upon conclusion of the argument, and this of course means that the court shall charge upOn all the issues in the case. The doctrine announced in the case of B. & O. Railroad Co. V. Lockwood, 72 Ohio St. 586, adds nothing to the force of this statute, for any fair construction of the language used in this section means just what was held in that case. True, the decision reached there was predicated upon the statement that "The code of civil procedure carefully distinguishes issues of fact which may be tried by a jury and issues of law or fact which must be tried by the court.". But undoubtedly the rule would apply to criminal as well as to civil cases. Therefore, it is now a settled rule of practice in this state that it is the duty of the trial court, both in criminal and civil cases, to separately and definitely state to the jury the issues they are to try, accompanied by such instruction as to each issue as the nature of the case may require. Measured by this rule this charge is defective in that it fails to definitely cover all the issues in the case. It is equally a settled rule of practice in this state that where the charge as given is free from prejudicial error but fails to cover all the questions involved in the case, such failure is not a ground for reversal unless it was called to the attention of the court and further instructions requested and refused, provided the jury is not misled by the charge as given. Columbus Railway Co. v. Ritter, 67 Ohio St. 53; Schryver v. Hawks and Bierce, 22 Ohio St. 309; Smith v. P. Ft. W. & C. Railway Co., 23 Ohio St. 10; Pretzinger v. Pretzinger, 45 Ohio St. 452; Rolling Mill Co. v. Corrigan, 46 Ohio St. 283.

It does not appear how the jury could have been misled by this charge. The court did give a correct charge covering the offense of shooting with intent to wound, and the defendant was found guilty of that offense. That he might, under such an indictment, be found guilty of assault and battery, would in no wise aid the jury in determining his guilt or innocence of the charge of shooting with intent to wound. It may occur in actual practice that a jury, seeking to avoid a disagreeable duty, might be inclined to find the defendant guilty of a lesser crime than the evidence...

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    ...excepting as to errors in the charge given. Columbus Ry. Co. v. Ritter, 67 Ohio St. 53, 65 N. E. 613;[Ohio St. 153]State v. McCoy, 88 Ohio St. 447, 103 N. E. 136;State v. Driscoll, 106 Ohio St. 33, 138 N. E. 376;Beeler v. Ponting, 116 Ohio St. 432, 156 N. E. 599;Warden v. Pennsylvania R. Co......
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    ...specific objections, errors of commission will justify a reversal even without a specific objection of counsel. State v. McCoy (1913), 88 Ohio St. 447, at 452, 453, 103 N.E. 136; State v. Lynn (1966), 5 Ohio St.2d 106, at 109, 214 N.E.2d Criminal Rule 30, in effect at the time of this trial......
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    ...time when such error could have been avoided or corrected by the trial court. Adams v. State (1874), 25 Ohio St. 584; State v. McCoy (1913), 88 Ohio St. 447, 103 N.E. 136; State v. Driscoll (1922), 106 Ohio St. 33, 138 N.E. 376; Tari v. State (1927), 117 Ohio St. 481, 159 N.E. 594; Rucker v......
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