Malone v. State
| Decision Date | 26 February 1936 |
| Docket Number | 25603 |
| Parties | Malone v. The State Of Ohio. |
| Court | Ohio Supreme Court |
Criminal law - Murder in attempting to perpetrate robbery - Section 12400, General Code - Charge to jury - Instruction on offenses less than first degree murder, not required, when - Evidence - Cross-examination of defendant as to other offenses, prejudicial error - Prior proceedings in Juvenile Court - Section 1669, General Code.
1. Where one is indicted and tried for murder in the attempted perpetration of robbery under Section 12400, General Code, no instruction on any lesser grade of homicide than murder in the first degree is requisite or proper when evidence to support the same is lacking. (Bandy v. State, 102 Ohio St 384, approved and followed.)
2. It is prejudicial error to permit cross-examination of a defendant in a criminal case as to the commission of offenses prior to the one for which he is being tried, when such inquiry is predicated upon Juvenile Court proceedings against him as a juvenile delinquent, examination of this character being within the prohibitions of Section 1669, General Code.
John Malone, sixteen years old, sent from the Juvenile Court to the Court of Common Pleas by virtue of Section 1681, General Code, was indicted by the grand jury of Cuyahoga county for murder in the first degree. It was charged that on or about the 14th day of November, 1934, he "unlawfully purposely and while attempting to perpetrate a robbery killed Frank Patlon." This was the only count in the indictment.
On the trial, the state introduced proof that Patlon, connected with a garage and gasoline filling station in the city of Cleveland, died on November 18, 1934, from the effects of a bullet fired from a.25 caliber automatic pistol, which entered his body two inches below the navel and ruptured his intestines. He was shot on the early morning of November 14 1934, at his place of business.
Called as witnesses by the state were Ralph Nativio, formerly night watchman at a roller rink (presumably a roller skating rink), and two companions, who testified in substance that about two o'clock on the morning of November 14, 1934, defendant, in company with Louis Morano, a minor nineteen years old, came to the roller rink, remained some ten minutes and left. They returned in about half an hour. Defendant at that time had in his possession a.25 caliber Colt automatic pistol, which had been purloined from the rink on the earlier visit (identified as the weapon from which the fatal shot was fired), and said "We shot a man," to which Morano added, "Yes, we are lugens" (meaning dumb-heads). Defendant thereupon retracted his statement with the remark that he was only fooling. One of the witnesses also heard defendant say something about a fight, and two of them testified that as defendant and Morano left the rink for the second time the latter was talking to defendant about money--"Don't forget there is money in it."
On November 22nd or 23rd, 1934, defendant voluntarily surrendered himself to the Cleveland police. For some time he denied any part in the shooting of Patlon, but after being confronted by two of the witnesses from the roller rink, at the Bureau of Criminal Investigation, agreed to confess.
According to the testimony of Detective Sergeant Wolf, who with several others was present, the confession was voluntarily made without inducements to or ill treatment of defendant, around midnight of November 23, 1934, and was accurately written out on a typewriter by a stenographer. Defendant read it and wrote at the end with pen and ink, "I have read this statement and it is true," and signed his name in the presence of two witnesses, who affixed their signatures to the paper.
This written and signed statement, in the usual form containing advice to defendant that anything he might say would be used for or against him, was introduced in evidence by the state and is attached to the bill of exceptions as an exhibit. Such parts as are pertinent are herewith reproduced:
Next, defendant related his various activities from that time until he surrendered.
The confession continues:
Defendant took the witness stand in his own behalf, and told an entirely different story from that contained in the purported confession. He testified that he met Louis Morano on Woodland avenue; that they went to the roller rink, arriving about two o'clock, and that Morano stole the automatic pistol. They left the rink together, and Morano suggested that they "stick up" the gasoline filling station at 105th street and Woodland avenue, to which defendant assented. However, they found it closed. Whereupon Morano suggested that they do the same thing at the Patlon station. Defendant flatly refused, because he knew Patlon and Patlon knew him. Morano stated that he was going to rob it any way. The two boys separated. Defendant walked a short distance and heard a shot. Morano then ran up to him and exclaimed, "Johnny, you know what, I just shot a guy," and began to plead with defendant to assume the blame, because he would be treated more leniently on account of his youth. On their way back to the roller rink Morano handed defendant the pistol and offered to pay him $5,000 if he would shoulder responsibility for the crime. When they entered the roller rink, defendant said jokingly to those present, "We shot a guy." The following evening defendant and Morano met again, when defendant definitely consented "to take the blame."
Defendant further testified that the statement he had given the police was false in material parts and was made solely in furtherance of his agreement with Morano to accept responsibility for the shooting. He also stated that what he did tell the police had not been quoted correctly, and that they subjected him to some rough handling to make him talk.
Immediately preceding the general charge, the trial judge instructed the jury, at the request of counsel for defendant:
"If the evidence in this case shows that the shooting of Frank Patlon was accidental, and that Frank Patlon died as a result of that accidental shooting, then it is the duty of the jury to find the defendant not guilty."
The general charge was limited to murder in the first degree. The jury returned a verdict of murder in the first degree, with a recommendation of mercy, upon which defendant was sentenced to imprisonment in the penitentiary for life.
Error was prosecuted by the defendant to the Court of Appeals, which court affirmed the judgment below, and the case is now in the Supreme Court because of the granting of defendant's motion for leave to file a petition in error.
Mr. Blase A. Buonpane, for plaintiff in error.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Anthony A. Rutkowski, for defendant in error.
In seeking a reversal, counsel for defendant relies on four grounds of
(1) Refusal of the trial court to charge on the grades of homicide less than first degree murder;
(2) Permitting the state to inquire of the defendant on cross-examination as to offenses charged against him in the Juvenile Court and there disposed of;
(3) Failure to instruct the jury adequately on the matter of confessions;
(4) Refusal to charge that if the defendant aban- doned participation in the attempted robbery, he was entitled to acquittal.
These questions will be discussed in the order stated.
The indictment was drawn under Section 12400, General Code, reading in part: "Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree * * *."
Because of the peculiar wording of the quoted statute, this court has held that to support a conviction thereunder for a commission of any of the specific crimes therein named, intent or purpose must be shown. In commenting upon...
To continue reading
Request your trial