Cline v. State

• Decision Date: 16 June 1885
• Citation: 43 Ohio St. 332,1 N.E. 22
• Parties: CLINE v. STATE.
• Court: Ohio Supreme Court

43 Ohio St. 332

1 N.E. 22

CLINE

v.STATE.

Supreme Court of Ohio.

Filed June 16, 1885.

Error to the court of common pleas of Athens county.

[Ohio St. 332]E. Tompkins, for plaintiff in error.

J. Lawrence, Atty. Gen., and D. L. Sleeper, Pros. Atty., for the State.

OKEY, J.

Cline was tried in the court of common pleas of Athens county, at the February term, 1885, for maliciously shooting Kinkead; the indictment charging in the first count an intent to kill, and in the second count an intent to wound. The verdict was ‘guilty’ upon the second count and ‘not guilty’ on the first, and the prisoner was sentenced to the penitentiary. This is a petition in error to reverse the judgment. [Ohio St. 333]The Revised Statutes define the crime and prescribe the punishment, and also provide that upon such an indictment there may be a conviction for an assault. Sections 6820, 6823, 7316; and see Barber v. State, 39 Ohio St. 660;Mitchell v. State, 42 Ohio St. 383.

1. On the trial it was material, and, indeed, essential, to a conviction for felony, to show that the prisoner was actuated by malice in shooting Kinkead. Previous threats of the prisoner that he would kill Kinkead afforded not only competent but potent evidence for such purpose. Evidence of such threats was offered, but, on the other hand, testimony was given that no such threats had been made. It was, therefore, for the jury to determine whether such threats had been made. The court, however, assumed the province of the jury by saying that ‘the jury should also consider the threats made by the defendant.’ This was as well prejudicial as erroneous.

2. Evidence was offered showing that the prisoner was intoxicated at the time of the shooting. The court charged that ‘if the jury should find that the defendant was intoxicated to such an extent as to deprive him of his reason, so as to render him incapable of reasoning or of exercising his reasoning faculties, the jury will find the defendant not guilty of intent to kill, as charged in the first count of the indictment. If the jury should find that the defendant was intoxicated to such an extent as to deprive him of his reason, and render him incapable of forming an intent, the jury may proceed further and consider whether or not the defendant is guilty as charged in the second count.’

In order to find the prisoner guilty of the felony charged in the second count, it was necessary to prove that the prisoner shot Kinkead with the specific intent of wounding him, ( Barber v. State, supra;) and no reason can be given why evidence of intoxication might not be considered with reference to the felony charged in the second count, if it could be considered with reference to the felony charged in the first count. In making such distinctions[Ohio St. 334]the court erred. The real question, therefore, is whether, in such a case, it is competent to show that the defendant was, at the time of the shooting, intoxicated to such an extent that he could not form or have a purpose or intent to kill or wound.

Where a person, having the desire to do to another an unlawful injury, drinks intoxicating liquors to nerve himself to the commission of the crime, intoxication is held, and properly, to aggravate the offense; but at present the rule that intoxication aggravates crime is confined to cases of that class. The rule is well settled that intoxication is not a justification or an excuse for crime. To hold otherwise would be dangerous to and subversive of public welfare. But in many cases evidence of intoxication is admissible with a view to the question whether a crime has been committed; or where a crime, consisting of degrees, has been committed, such evidence may be important in determining the degree. Thus an intoxicated person may have a counterfeit bank-bill in his possession for a lawful purpose, and, intending to pay a genuine bill to another person, may, by reason of such intoxication, hand him the counterfeit bill. As intent, in such case, is of the essence of the offense, it is...