Bandy v. State

• Decision Date: 03 May 1921
• Docket Number: 16794
• Parties: Bandy v. The State Of Ohio.
• Court: Ohio Supreme Court

131 N.E. 499

102 Ohio St. 384

Bandy v. The State Of Ohio.

No. 16794

Supreme Court of Ohio

May 3, 1921

Criminal law - First degree murder - Lesser offenses included, when - Evidence governs charge to jury, when - Murder in perpetration of robbery - Section 12400, General Code - Accused entitled to acquittal, when - No evidence of lesser offense - Refusal to instruct jury not error, when.

1. Murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter. Whether in an indictment for murder in the first degree in the perpetration of a robbery, a charge is warranted as to murder in the second degree, or manslaughter, depends however, not merely upon whether or not these are literally included in the formal charge, but upon whether or not there is any evidence tending to support a charge of murder in the second degree, or manslaughter.

2. If the indictment charges murder in the first degree in the perpetration of a robbery, under Section 12400, General Code and there is no evidence tending to support a charge of murder in the second degree, or manslaughter, as distinguished from murder in the first degree, then the defendant, upon the failure of proof as to murder in the first degree, is entitled to an acquittal, and, in such case it is not error for the court to refuse to charge either murder in the second degree or manslaughter.

- The plaintiff in error, Henderson Bandy, was indicted by a grand jury of Franklin county for murder in the first degree, under Section 12400, General Code, the pertinent part of which reads:

"Whoever, purposely, * * * in perpetrating * * * robbery * * * kills another is guilty of murder in the first degree."

To that indictment the plea of not guilty was entered. Upon the trial, the judge charged the jury on murder in the first degree, and refused to charge or furnish verdict forms to the jury for any lesser degree of homicide.

The jury returned a verdict of guilty of murder in the first degree as charged, and recommended mercy. Motion for a new trial was filed, based upon numerous minor errors in the admission and rejection of evidence and upon the major error of the court's refusal to charge on the lower grades of homicide.

New trial was denied by the court of common pleas. Error was prosecuted to the court of appeals, which affirmed the judgment below.

Error is now prosecuted to this court to reverse that judgment.

Mr. Matthew L. Bigger and Mr. John H. Cooper, for plaintiff in error.

Mr. John R. King, prosecuting attorney; Mr. Jos. A. Godown, assistant prosecuting attorney, and Mr. James C. Nicholson, for defendant in error.

WANAMAKER, J.

The one big question involved in this case arises out of the charge and refusal to charge of the common pleas court upon trial on an indictment of murder in the first degree committed in the perpetration of a robbery, under Section 12400, General Code.

The ruling of the court on this question appears from a very full and exhaustive opinion on the motion for a new trial, based chiefly on the alleged error referred to above.

The view of the trial judge in that respect is best stated in his ruling on the motion for new trial, which is in the following language:

"Where an indictment charges a defendant with purposely killing another while perpetrating robbery upon him, no other class of homicide being charged, and the evidence tending to prove no other grade of the crime, no instruction should be given the jury concerning murder in the second degree, or manslaughter, nor,, should verdicts therefor be submitted to the jury.

For the purpose of clarifying earlier decisions of this court, which undoubtedly have left the state of the law in more or less confusion, this case was admitted in the hope that a further study of the law would lead to a simplification of its status and a reconcilement of those earlier decisions, which have been largely responsible for the present uncertainty of the law; all with a view to conserve the legal rights of both the state and the accused.

The charge of the court to the jury should naturally and necessarily include a simple and orderly statement of the issues of fact and the rules of law applicable thereto and helpful to the jury in the determination of those several issues of fact, upon which their verdict is to be based.

But, what are the issues of fact with which the jury are to deal in the case at bar, and from whence do they arise?

In civil cases, the issues of fact tried by the jury arise out of the pleadings. This is a sound and salutary rule.

The principle is that all parties in such cases should be advised in advance as to the issues thereof, and that, thereafter, unless amended, the evidence must be confined to the issues so raised.

But, in criminal cases, the rule is naturally and necessarily different from that in civil cases.

The indictment, information, or affidavit in a criminal prosecution, necessarily confines the state to the charge made against the defendant, in order that the defendant shall know, as the constitution provides, "the nature of the accusation against him."

But the defendant is not limited or confined to a literal plea of not guilty. He may interpose any pertinent defense in the evidence, relying either upon the evidence of the state, or upon the evidence that he himself may tender to support his defense, or upon both, however numerous his defenses may be. Among the very common defenses are those of alibi, self-defense, insanity, accident, drunkenness, or any other defense the defendant may see fit to interpose which the law has recognized as proper and adequate in whole or in part, and such defenses in the course of our legal procedure inherently and necessarily arise very largely from the evidence both of the state and the accused.

A court would not have done its legal duty to the accused if it failed to charge the law upon the material issue of fact, if such failure would reasonably result to the injury or prejudice of the accused; and, by parity of reason, such court would equally fail in its legal duty to the state if it charged upon some material issue of fact which did not arise out of the evidence in the case.

An example would not be amiss. Suppose that the court were to charge self-defense where there was an entire absence of evidence tending to raise such an issue. Such an issue of fact would itself impliedly suggest that the defendant had used some measure of the force charged in the indictment, which under all the evidence in the case was denied by the defendant. Such charge would be manifestly injurious and prejudicial, simply because there was no evidence before the jury to justify such charge.

The basic, elemental question in this case is, therefore, Was there any evidence submitted to the jury in the trial of this cause from which any reasonable inference of murder in the second degree, or manslaughter, might be drawn or inferred?

The trial judge held there was no such evidence to support any lesser degree of homicide. The court of appeals in dealing with this phase of the case used this language:

"The burden of the defense was an alibi. * * * Bandy himself testified and denied any connection whatever with the crime. No evidence was offered and no issue was raised but that the murder as charged was committed by the occupants of the car. No evidence was offered and no claim was made tending to dispute the circumstances of the crime nor to reduce the grade of the offense. As the evidence stood, if Bandy was identified beyond a reasonable doubt as one of the perpetrators of the crime he was guilty as charged in the indictment. If the evidence did not so identify him as one of the perpetrators of the crime then he was entitled to an acquittal. We think there was no foundation for any intermediate grade. The trial court charged the jury upon murder in the first degree and refused to charge or furnish verdicts for any lesser grade of murder. The jury were charged that if the evidence was not sufficient to convict defendant of murder in the first degree he should be acquitted.

"Counsel for plaintiff in error challenge the correctness of the court's charge in this respect. It is claimed that the court had no right to limit its charge to murder in the first degree or acquittal, and that it was the province of the jury under Section 13692 to fix the grade.

"It is not important in the status of this case to express an opinion as to whether a possible or supposable state of evidence might justify a charge upon the lesser or included offenses. The charge of the court should be limited to those features which the evidence tends to support. While the charge of the court should not go beyond the indictment yet it is equally well settled that it should be appropriate to the evidence. In the case at bar the defendant, Bandy, was either guilty of murder in the first degree as charged or he was not guilty and the court properly so limited its charge.

"This proposition is settled in Ohio by the cases of Dresback v. State, 38 Ohio St. 365, and State v. Schaeffer, 96 Ohio St. 215."

A careful examination of the record in this case clearly confirms the holding of the trial judge and of the court of appeals, that there was an entire absence of evidence tending to show any other grade of homicide than that of murder in the first degree committed in the perpetration of a robbery. If there was a failure of proof in this behalf as to murder in the first degree, touching the robbery, there was under the evidence in the record a like failure of proof as to the evidence necessary to establish any other grade of homicide.

Now the one question remaining to be determined is this, Does the abstract, literal...