249 N.E.2d 797 (Ohio 1969), 68-331, State v. Nolton

Docket Nº:68-331.
Citation:249 N.E.2d 797, 19 Ohio St.2d 133
Opinion Judge:KERNS, J., of the Second Appellate District sitting for HERBERT, J. SCHNEIDER, J.
Party Name:The STATE of Ohio, Appellant, v. NOLTON, Appellee.
Attorney:C. Howard Johnson, Pros. Atty., and Marvin S. Romanoff, Columbus, for appellant., Henry Clay Scott, Columbus, for appellee. Mr. C. Howard Johnson, prosecuting attorney, and Mr. Marvin S. Romanoff, for appellant., Mr. Henry Clay Scott, for appellee.
Judge Panel:TAFT, C. J., and MATTHIAS, C. WILLIAM O'NEILL, KERNS and DUNCAN, JJ., concur. [ 5 ]
Case Date:July 16, 1969
Court:Supreme Court of Ohio

Page 797

249 N.E.2d 797 (Ohio 1969)

19 Ohio St.2d 133

The STATE of Ohio, Appellant,


NOLTON, Appellee.

No. 68-331.

Supreme Court of Ohio.

July 16, 1969

       Syllabus by the Court

       If in a criminal case the evidence adduced on behalf of the defense is such that if accepted by the trier of the facts it would constitute a complete defense to all substantive elements of the crime charged, the trier will not be permitted to consider a lesser included offense.

       Defendant was convicted by a jury of the crime of shooting to wound, as defined by Section 2901.23, Revised Code. 1 The trial court refused defendant's request that the jury be instructed on the lesser included offenses of assault with a dangerous weapon 2 and assault and battery. 3

Page 798

Defendant appealed to the Court of Appeals, assigning as his sole error failure of the trial court to charge the jury as requested. The Court of Appeals reversed the judgment and remanded the cause for a new trial. The state prosecuted an appeal in this court. [19 Ohio St.2d 134]

       C. Howard Johnson, Pros. Atty., and Marvin S. Romanoff, Columbus, for appellant.

       Henry Clay Scott, Columbus, for appellee.

       SCHNEIDER, Judge.

       Under our schema of criminal procedure, every accused enjoys the unqualified right to have the prosecution prove every element of the offense charged beyond a reasonable doubt. Failing this, the defendant is entitled to an acquittal. However, the statutory right (Section 2945.74, Revised Code 4 ) to have the trier of the facts consider and return a verdict of conviction upon lesser degrees of the crime or lesser included offenses, in lieu of conviction of the principal offense, is subject to the underlying principal that the trier shall not be confronted with the option to reach an unreasonable conclusion. Thus, it has been said that the defendant's 'liberty should not be dickered away by a compromised verdict upon another crime.' State v. Loudermill, 2 Ohio St.2d 79, 81, 206 N.E.2d 198, 200. In turn, the state has an equal interest in guarding against speculative verdicts.

       It has also been reiterated down through the cases that where the evidence would support a lesser included offense the jury shall be charged upon and be permitted to return a verdict upon that offense.

       This is, perhaps, an unfortunate formula and the source of continuing confusion. For it is obvious that proof which will...

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