State v. Loudermill

• Decision Date: 07 April 1965
• Docket Number: No. 38663,38663
• Citation: 206 N.E.2d 198,2 Ohio St.2d 79,31 O.O.2d 60
• Parties: , 31 O.O.2d 60 The STATE of Ohio, Appellant, v. LOUDERMILL, Appellee.
• Court: Ohio Supreme Court

Page 79

2 Ohio St.2d 79

206 N.E.2d 198, 31 O.O.2d 60

The STATE of Ohio, Appellant, v. LOUDERMILL, Appellee.

No. 38663.

Supreme Court of Ohio.

April 7, 1965.

Syllabus by the Court.

Where the evidence in a criminal case would support a finding by the jury of guilt of a lesser offense included in the offense for which defendant was indicted and tried, the refusal of the trial court to charge upon that lesser included offense is error prejudicial to the rights of defendant. (Paragraph two of the syllabus of State v. Patterson, 172 Ohio St. 319, 175 N.E.2d 741, overruled; Freeman v. State, 119 Ohio St. 250, 163 N.E. 202, and State v. Muskus, 158 Ohio St. 276, 109 N.E.2d 15, 33 A.L.R.2d 452, approved and followed.)

Maggie Belle Loudermill was indicted and tried on a charge of second degree murder for the death of Doris Forrest in Toledo, Ohio. Although both the prosecuting attorney and counsel for defendant requested instructions to the jury on the lesser included offense of manslaughter, the Court of Common Pleas refused so to charge. Thereupon, the jury found defendant guilty of second degree murder and judgment was entered upon that verdict. On appeal, the Court of Appeals reversed that judgment and remanded the cause for a new trial because of the refusal of the trial court to charge on manslaughter.

The cause is before this court upon the allowance of the state's motion for leave to appeal.

Harry Friberg, Pros. Atty., and Joseph J. Jan, Toledo, for appellant.

Gene W. Krick, Toledo, for appellee.

SCHNEIDER, Judge.

Two questions are presented in this appeal:

First, is a majority of this court persuaded to abandon the pronouncement in paragraph two of the syllabus of State v. Patterson, 172 Ohio St. 319, 175 N.E.2d 741, and to re-embrace the former rule of long standing as exemplified by Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A.L.R. 594, Freeman v. State, 119 Ohio St. 250, 163 N.E. 202, and State v. Muskus, 158 Ohio St. 276, 109 N.E.2d 15, 33 A.L.R.2d 452?

Second, was the Court of Appeals justified in concluding that the evidence presented in this case was sufficient to support a finding by the jury that defendant was guilty of the lesser included offense of manslaughter?

Obviously, if this court were not willing to reconsider Patterson, the solution to this appeal would be preordained. The judgment of the Court of Common Pleas would be reinstated regardless of the sufficiency of the evidence to support a conviction of manslaughter.

However, the majority of the court as presently constituted is not so disposed. We do not cavil the reasoning of Patterson, which departed from immemorial precedent in this state. But good reasons must, of force, give place to better, particularly where, as in Patterson, no change of conditions or circumstances justifying a trespass on the rule of stare decisis is noted, except a 'tendency in some jurisdictions toward the requirement of instructing on all possible lesser included offenses.'

Whatever the practice of other jurisdictions or indeed at common law, the basic constant is that Ohio criminal law is a creature of statute. Not only intent but purpose is an element of murder in the first degree (Section 2901.01, Revised Code) and of murder in the second degree (Section 2901.05, Revised Code). The concept lesser included offenses is vitalized by statute (Section 2945.74, Revised Code) not by the common law.

The statutory commandments are clear. The evidence, as well as the law, governs the charge of the court in a criminal case (Section 2945.11, Revised Code), and the charge must be consistent with the evidence. It is the duty of the court to give, as well as that of the jury to consider, a charge on the lesser included offenses which are shown by the evidence to have been committed.

This salutary rule requires the jury neither to speculate nor to mete out punishment. On the contrary, if evidence tending to prove a lesser included offense is present and a jury is inhibited by the charge from finding defendant guilty thereof, the collective conscience of that body may too easily be disposed to fabricate the elements of the crime charged in the indictment and to find defendant guilty as charged rather than risk, by a verdict of acquittal, turning the malefactor loose upon a society grievously harmed by his act. This is speculation at its worst and a natural and probable consequence of a failure to charge on a lesser included offense when evidence of its commission is present. Particularly is this true in cases of murder which require the additional element of 'purpose.'

Conversely, under an indictment for murder a jury is positioned to determine punishment only where it is instructed on a lesser included offense and the evidence fails to support that offense. If defendant is not guilty of murder, his liberty should not be dickered away by a compromised verdict upon another crime, which is supported by no evidence. Bandy v. State, supra. We therefore conclude to overrule paragraph two of the syllabus of Patterson.

Being so persuaded, it now becomes necessary to consider the second question involved: Whether the Court of Appeals was correct in finding sufficient...