Goodlove v. State
| Decision Date | 28 June 1910 |
| Docket Number | 12255 |
| Citation | 82 Ohio St. 365,92 N.E. 491 |
| Parties | Goodlove v. The State Of Ohio. |
| Court | Ohio Supreme Court |
Allegations in an indictment - What is essential to the charge - Indictment charges accused as killing "one alias another" in names - Evidence against "another" will not sustain verdict against accused "one," when - Criminal law.
1. An allegation in an indictment descriptive of that which is essential to the charge therein made is a material allegation and cannot be rejected as surplusage.
2. Where an indictment charges the accused with having assaulted and killed one "Percy Stuckey alias Frank McCormick," evidence that the defendant assaulted and killed a person commonly known as Frank McCormick will not sustain a verdict of guilty against the defendant unless it also be shown that the Frank McCormick assaulted and killed and Percy Stuckey were one and the same person.
The facts of this case are sufficiently stated in the opinion.
Messrs Sheets & West and Messrs. Meck & Stalter, for plaintiff in error.
The indictment, as it stands, charges two offenses, one assault with intent to kill, the other shooting with intent to kill. But it does not charge homicide. The trial judge, however construed the indictment as though it charged murder in the second degree. Upon what theory he arrived at this conclusion we cannot comprehend, and he did not undertake to enlighten us. In submitting the case to the jury the court submitted the question as to whether the accused was guilty of murder in the second degree and all the lesser offenses; and in that we confidently claim there was fatal error.
If permitted to draw inferences, we might probably infer that the prosecuting attorney intended to draw an indictment for murder in the first degree, and that the grand jury intended to return such an indictment. But in criminal cases inferences are not permitted. That proposition is elementary. State v. Graham, 22 So. 807; 1 Bishop Crim. Procedure (4 ed.), Sections 518, 519; Fouts v. State, 8 Ohio St. 98; Hagan v. State, 10 Ohio St. 459; Drake v. State, 19 Ohio St. 211; Knight v. State, 54 Ohio St. 365; Jones v. State, 21 Tex App., 349; State v. Daugherty, 30 Tex. 360; Littell v. State, 133 Ind. 577; State v. Hagan, 164 Mo. 654; State v. Rector, 126 Mo. 328; State v. Keerl, 29 Mont. 508; Edmonson v. State, 41 Tex. 496; State v. Hutchinson, 26 Tex. 111; Cook v. State, 72 Miss. 517; State v. Halder, 13 Am.Dec. 378; Jester v. State, 9 S.W. 616; Parker v. State, 114 Ala. 690; Griffith v. State, 90 Ala. 583; State v. Caspary, 11 Rich. L. (S. Car.), 356.
We wish to add also that the statutes of all these states with reference to variance, surplusage, formal defects, etc., are substantially the same as those of the state of Ohio.
It is charged in the indictment that the name of the person killed was Percy Stuckey, alias Frank McCormick. That means, of course, that the name of the person killed was Percy Stuckey, and that Frank McCormick was not his name but an alias under which he may have gone at some time in his life. The evidence in the case shows that it was Frank McCormick who was killed, and not Percy Stuckey. We do not think it will be seriously controverted that the name of the person assaulted, as charged in the indictment, must correspond with the proof; otherwise the defendant is entitled to an acquittal. The reason for this rule is entirely plain. For should an accused be charged with killing John Brown and it appeared in evidence it was James Brown instead of John Brown that he killed, an acquittal would not be a bar to a prosecution for the killing of James Brown. If convicted and sent to the penitentiary, after serving his term he could be brought back and tried for the killing of James Brown. Section 10, Bill of Rights; 2 Bishop Crim. Procedure (4 ed.), Section 65; 1 Elliott on Evidence, Section 200; 4 Elliott on Evidence, Section 2714; Price v. State, 19 Ohio 423; 1 Bishop Crim. Procedure (4 ed.), Section 683; 1 Archbold Cr. Pr. & Pl. (8 ed.), 241; Griffin v. State, 14 Ohio St. 55; Moore v. State, 12 Ohio St., 387; Sykes v. People, 132 Ill. 32; McGary v. People, 45 N.Y. 153; Johnson v. State, 111 Ala. 66; State v. Gaffery, 12 La. An., 265; Rex v. Deeley, 1 Moody, 303; Hensley v. Commonwealth, 1 Bush, 11; State v. Taylor, 15 Kans., 420; Lewis v. State, 90 Ga. 95; People v. Hughes, 41 Cal. 234; Owens v. State, 20 S.W. 558; Humbard v. State, 21 Tex. App., 200.
If it be claimed that failure to prove that the name "Frank McCormick" was an alias, and that Percy Stuckey was the true name of the deceased is merely a variance and is cured by the provisions of Section 7216, Revised Statutes, we will answer that in this case it is not a variance; it is a failure of proof, a total failure of proof.
The purpose of Section 7216, Revised Statutes, is merely to cure any slight variance between the proof and the indictment; not to enable the state to charge a defendant with the homicide of one person, and then prove at the trial the homicide of another person. If such were the construction it would be clearly unconstitutional as it would be in conflict with Article I, Section 10, constitution.
The supreme court of Ohio has had occasion to construe the provisions of Section 7216, to which we beg to call the court's attention. Mead v. State, 26 Ohio St. 505; Pratt v. State, 35 Ohio St. 514; Barber v. State, 39 Ohio St. 660; State v. Johnson, 58 Ohio St. 417.
Mr. H. H. Newell, prosecuting attorney, and Mr. D. C. Parker, for defendant in error.
It is claimed by the accused that this indictment does not charge murder in the first degree, murder in the second degree, neither does the same charge manslaughter, and if it charges anything, according to the motion of the accused, it charges shooting with intent to kill or wound.
And as we take it the law is that where one is indicted for murder in the first degree, under the section, it necessarily follows that the indictment includes all of the other degrees of murder down to assault.
Section 7215, Revised Statutes, provides, among other things, that certain matters may be left out of an indictment and still the same shall be a good indictment. Section 7217 provides what is necessary to set forth in an indictment for manslaughter.
But we fail to find any rule laid down by the statutes defining what formal language shall be placed in an indictment for murder in the first degree.
There is no question but that this indictment fully complies with the statute charging malice, deliberation and premeditation. The fault found with it by the accused is that it does not disclose the manner and means by which the crime was committed.
The facts of the indictment are sufficient to notify the defendant fully what he would be expected to meet at his trial.
We find no authority in Ohio from our reports, and there is but little light thrown on this kind of an indictment, but in looking over the textbooks we think there is law to fully maintain the allegations of this indictment. Wharton on Homicide, 837, 850-856; 21 Cyc., 846; McDonnall v. People, 168 Ill. 93; Jones v. State, 35 Ind. 122; Territory v. Godas, 8 Mont. 347; Caldwell v. State, 28 Tex. App., 566; Adams v. State, 28 Fla. 511; State v. Florenza, 28 La. An., 945; Veatch v. State, 56 Ind. 584; Washington v. Yandell, 34 Wash. 409; State v. Cronin, 20 Wash. 512; Green v. State, 154 Ind. 655; State v. Silk, 145 Mo. 240; State v. Freeman, 1 Spears, 65; State v. Vaughn, 26 Mo. 29
On this question as to the sufficiency of the indictment we also call the attention of the court to Lamberton v. State, 11 Ohio 282; Rufer v. State, 25 Ohio St. 464; DuBrul v. State, 80 Ohio St. 52.
We are satisfied that the indictment in the case at bar charges murder in the first degree.
Further it is claimed by the accused that the indictment is defective because that while it charges an assault upon one Percy Stuckey alias Frank McCormick, the name Percy Stuckey nowhere again appears in the indictment, but the deceased is constantly referred to as the said Frank McCormick.
In the case at bar it is abundantly proven that the man killed was known to the accused as Frank McCormick, and it is clear that the indictment does apprise him of the fact that he is charged with killing Frank McCormick.
The trial court in this case made no such finding of material variance under Section 7216, Revised Statutes, as would be prejudicial to the accused. Nor can we conceive of any possible prejudice that could arise to the accused from such variance, unless it be on the question as to former jeopardy in case of a future indictment and hearing. Mead v. State, 26 Ohio St. 505; Commonwealth v. Hunt, 4 Pick., 252; Walter v. People, 32 N.Y. 147; Commonwealth v. Randall, 4 Gray, 36; Rye v. State, 8 Tex. App., 163; State v. Craighead, 32 Mo. 561; Commonwealth v. Desmarteau, 16 Gray, 1; Pyke v. State, 47 Fla. 93, 36 So. 577; People v. Woods, 65 Cal. 121, 3 Pac. Rep., 466; People v. Lake, 110 N.Y. 61, 17 N.E. 146; 6 Am.St. 344; Moree v. State, 83 S.W. 1117; Kennedy v. People, 39 N.Y. 245.
At the October term, 1908, of the court of common pleas of Wyandot county, the grand jury of said county found and presented against James F. Goodlove, the plaintiff in error herein, a certain indictment of which the following is a copy:
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