State v. Childers, 26830.

• Court: United States State Supreme Court of Ohio
• Citation: 14 N.E.2d 767,133 Ohio St. 508
• Docket Number: No. 26830.,26830.
• Parties: STATE v. CHILDERS.
• Decision Date: 27 April 1938

133 Ohio St. 508
14 N.E.2d 767

STATE
v.
CHILDERS.

No. 26830.

Supreme Court of Ohio.

April 27, 1938.

Appeal from Court of Appeals, Gallia County.

Arn Childers was convicted of unlawfully shooting with intent to wound, and he appeals.-[Editorial Statement.]

Judgment affirmed.

[14 N.E.2d 767]

Syllabus by the Court.

1. An indictment which charges that the defendant unlawfully shot another with intent to wound states an offense under section 12420, General Code, even though the word ‘maliciously’ is omitted.

2. An indictment need not be in the exact language of the statute so long as all the essential elements of the crime are contained in language equivalent to that used in the statute.

3. A person is not justified in taking human life or inflicting bodily harm upon the person of another by means of traps, spring guns, or other instrumentalities of destruction unless, as a matter of law, he would have been justified had he been personally present and taken the life or inflicted the bodily harm with his own hands.

On December 3, 1935, an indictment was returned charging that on or about September 1, 1935, Arn Childers ‘unlawfully shot one Daniel Earl Wagoner, with intent to wound him, the said Daniel Earl Wagoner.’ A demurrer to the indictment was overruled.

On March 16, 1937, when the case was called for trial the defendant objected to the introduction of any testimony in the case for the reason that the indictment did not state an offense. Thereafter counsel for the State, upon motion, were granted leave to amend the indictment by inserting the words ‘and maliciously’ after the word ‘unlawfully.’

Evidence was then introduced which showed that the defendant, Childers, owned a farm which was some distance from the house in which he resided. On the farm was a field of watermelons planted by a tenant, but which were at the time in question under the control of Childers.

A few days before September 1, 1935, considerable damage was done to the watermelon crop, apparently by some boys in the neighborhood. The evidence shows that one of these boys was Daniel Earl Wagoner of Huntington, W. Va., who was then about 14 years of age. He was visiting his grandfather who lived on a farm adjoining that of Childers in Gallia county.

After the damage was done to his melons, Childers set six spring guns, one concealed at each end of the melon patch. Attached to the triggers were small wires which went all around the patch. The guns so placed and set were single-barrel shotguns loaded with ordinary type of shells. The wires were so arranged that if anyone came in contact with them, the guns would be discharged. The defendant claimed there were two notices, written on pieces of paper, saying ‘Dangerous, don't go in this patch. Go back out,’ which were placed one at each end of the patch.

[14 N.E.2d 768]

On or about September 1, 1935, when young Wagoner entered the patch, one of the guns was discharged and he received about 150 shot, principally in his right side, arm and leg. He was seriously wounded, and remained in the hospital 18 days. Upon these facts in brief, an indictment was returned against Childers. At the trial, Childers admitted setting the guns, after his melon patch had been destroyed, for the purpose of preventing anyone from again coming on that part of his premises. Young Wagoner testified that while he had been in the patch on the Sunday before the shooting, he did not see any notices on September 1st, and that he thought the watermelons belonged to members of his family.

Upon this evidence, the jury found the defendant, Childers, guilty as he stood charged in the indictment. After an affirmance by the Court of Appeals, the defendant filed an appeal as of right, and a motion for leave to appeal. The motion was allowed by this court.

John W. Howell, Pros. Atty., Harry M. Miller, and Henry W. Cherrington, all of Gallipolis, for appellee.

R. M. Switzer, of Gallipolis, for appellant.

GORMAN, Judge.

Three questions are presented to this court for its determination. First, did the original indictment state facts showing an offense under the laws of Ohio? Second, if it did not, did the court have the power to permit the insertion of the words ‘and maliciously’? Third, did the facts warrant a conviction of Childers of shooting with intent to wound, under the provisions of section 12420, General Code?

That section, which is the one under which the defendant, Childers, was indicted, provides that ‘whoever maliciously shoots * * * another person with intent to kill, wound or maim such person,’ shall be guilty of a felony. The indictment as returned charged that the defendant ‘unlawfully shot one Daniel Earl Wagoner with intent to wound him, the said Daniel Earl Wagoner.’

It will be noticed that the words ‘and maliciously’ are omitted from the indictment. If the omission of these words is a vital and material element identifying or characterizing the offense, even under the broad provisions of sections 13437-4 and 13437-29, General Code, an amendment could not cure the defect. Harris v. State, 125 Ohio St. 257, 181 N.E. 104.

The wording of indictments must conform to the provisions of section 13437-4, General Code, which reads as follows: ‘In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statements may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged.’

It will be noticed that it is not necessary to use the exact words of the statute, but if in substance the indictment contains averments showing that the accused committed some public offense the requirements of the section are met.

Even before the enactment of the statute, while it was approved practice, it was not necessary that the identical words of the statute be used in an...