Marcoguiseppe v. State

• Decision Date: 16 March 1926
• Docket Number: 19305
• Parties: Marcoguiseppe v. The State Of Ohio.
• Court: Ohio Supreme Court

151 N.E. 182

114 Ohio St. 299

Marcoguiseppe v. The State Of Ohio.

No. 19305

Supreme Court of Ohio

March 16, 1926

Criminal law - Self-defense - Charge to jury error - Actual danger and belief of imminence thereof - Joint indictment and verdict of guilty - Now trial granted one defendant and denied the other.

1. On the trial of an indictment for assault with intent to kill or assault with intent to wound, where the accused pleads justification on the ground of self-defense, and evidence is adduced by the accused tending to support that defense, it is error for the trial court to instruct the jury that the danger which the accused is urging in support of his plea of self-defense must be actual and that it is not enough that the accused honestly believed that he was in imminent danger.

2. In the trial of two defendants jointly indicted, where all the evidence is not equally applicable to both defendants, and where there is a joint verdict of guilty as to both defendants, it is not error as a matter of law to sustain a motion for a new trial as to the one and overrule it as to the other.

The facts are stated in the opinion.

Messrs Buonpane, Marshman & Buonpane, for plaintiff in error.

Mr. E C. Stanton, prosecuting attorney, and Mr. David Kammer assistant prosecuting attorney, for defendant in error. ______________

Homicide 30 C. J. § 630;

Criminal Law, 16 C. J. § 2763 (Anno.). ______________

MARSHALL, C. J.

Plaintiff in error was indicted and tried in the court of common pleas of Cuyahoga county on charges of "shooting with intent to kill" and "shooting with intent to wound." One of the issues of the case was self-defense, and competent evidence was introduced tending to support that defense. One of the errors complained of in the course of the trial was the charge of the court upon the issue of self-defense, as follows:

"You are instructed that the danger which Marcoguiseppe is urging in support of his plea of self-defense must be actual, and that Marcoguiseppe must have honestly believed that he was in danger of losing his own life or in suffering great bodily harm before he was justified in shooting Paul Griner, his alleged assailant. It is not enough that the defendant Marcoguiseppe honestly believed that there was imminent danger to himself."

It is conceded by counsel for the state that that portion of the charge which stated that the danger must be actual is erroneous, and that a greater burden was imposed upon defendant by that instruction than was proper.

This is not a new proposition in criminal jurisprudence, and it has been settled by the uniform decisions of this and other states that in certain crimes against the person self-defense may be urged as a justification, where the accused in the careful and proper use of his faculties bona fide believes and has reasonable grounds to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger lies in taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger. This proposition has clearly been declared by this court in the case of Marts v. State, 26 Ohio St. 162. In the opinion by Welch, J., it is stated that the fact of the existence of such danger is not an indispensable requisite. The instruction of the court in the instant case was therefore erroneous and prejudicial.

Counsel for the state does not seriously contend the contrary, and only urges in support of the verdict and judgment that other portions of the entire charge correct the...