Freeman v. State

• Decision Date: 20 June 1928
• Docket Number: 21060
• Citation: Freeman v. State, 119 Ohio St. 250, 163 N.E. 202 (Ohio 1928)
• Parties: Freeman v. The State Of Ohio.
• Court: Ohio Supreme Court

163 N.E. 202

119 Ohio St. 250

Freeman v. The State Of Ohio.

No. 21060

Supreme Court of Ohio

June 20, 1928

Criminal law - Indictment for first degree murder for purposely and wilfully killing officer - Section 12402-1, General Code - Court to charge jury upon lesser offenses where killing unintentional and during scuffle - Charging jury that shooting echoes of anarchy and suggests chaos, prejudicial when.

1.Where a defendant is indicted and tried for "purposely and wilfully" killing an officer under Section 12402-1 General Code, and he offers testimony tending to prove that the killing was not done purposely or wilfully, but in a scuffle and unintentionally, it is the duty of the court to charge a lesser degree than murder in the first degree; if such testimony tends to prove that such killing, although unintentional, was caused by the defendant while resisting arrest, the court should charge the degree of manslaughter.

2.A comment in a charge, admonishing the jury that "the shot that shoots down an officer reverberates with the echoes of anarchy and the flame that comes from the firing of that pistol gives suggestions of chaos," coming from the bench at the close of the trial, is prejudicial and especially so where purpose, wilfulness and intentional killing were in issue.

Freeman was indicted, tried and convicted of murder in the first degree without recommendation of mercy.He was convicted for killing a policeman in violation of Section 12402-1, General Code, which provides that:

"Whoever purposely and wilfully kills a policeman is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy," etc.

The conviction and sentence was affirmed by the Court of Appeals and error prosecuted to this court.

Mr. J P. Jetton and Mr. J. G. Waiters, for plaintiff in error.

Mr Ralph E. Hoskot, prosecuting attorney, Mr. Charles J. Brennan and Mr. Maxwell G. Dice, for defendant in error.

JONES J.

While counsel for the prisoner and for the state both discuss the weight of the evidence relating to the higher degree for which the prisoner was convicted, we confine ourselves wholly to the legal question presented, viz.: Was there error in the court's charge to the jury? in considering this question the goof offered, respectively, by the state and the defendant, can be briefly stated.About 2:20 a. m., September 18, 1927, the defendant, Freeman, had parked his auto on a street in Dayton.Horn, a policeman of that city, observing the parked auto of the defendant, rode up to it on his motorcycle and stopped beside Freeman's car.What transpired in the killing of the policeman is developed by the testimony of an eyewitness and by circumstances attending the homicide.The state offered as a witness one Pappas, who testified that at some distance away he perceived the officer on the running board of the car, a gun in his right hand and a flash light in his left; that the officer told Freeman, who was at the wheel of his car, to come out, and then walked around to his motorcycle; that Freeman left the car and started toward the officer.Pappas testified that the defend ant and the officer were both leaning over the motorcycle; he could not then see the gun, but a moving of the defendant's hands towards the policeman, and heard the defendant say to the officer: "Stick them up-I'll kill you."He then heard a shot fired and saw the officer crunch to the ground.He ran over at once, caught the officer in his arms as he fell, and placed his head upon his knee.From this position the officer fired five shots at the fleeing defendant from Freeman's pistol.The peculiar circumstance in the entire transaction is that, while the officer possessed a gun, no shot was fired from that gun, but every shot was fired from the pistol of the defendant that somehow had been secured by the officer.

The defendant gave testimony tending to prove that the officer searched the car, obtained the defendant's gun, and ordered him out of the car; that when he got out the officer presented this gun to his body, and that he, the defendant, in order to protect himself from death and great bodily injury, attempted to grasp his pistol in the hands of the officer, and that in a scuffle, the gun was accidentally discharged.The testimony of the defendant, if believed, would tend to show that he did not kill the officer "purposely and wilfully," as defined in the statute, but that if any killing was done by him it was done accidentally and unintentionally in this scuffle.Even under the defendant's testimony, the transaction as related by him might support the conclusion, that, although unintentional, the homicide was caused while resisting arrest.

Whether the state's theory of the killing, or the...