State v. Gilkerson, 38709
| Decision Date | 24 February 1965 |
| Docket Number | No. 38709,38709 |
| Citation | 1 Ohio St.2d 103,205 N.E.2d 13,30 O.O.2d 385 |
| Parties | , 30 O.O.2d 385 The STATE of Ohio, Appellant, v. GILKERSON, Appellee. |
| Court | Ohio Supreme Court |
The defendant, James Mike Gilkerson, was indicted for first degree murder. Through personally employed counsel, he entered a plea of not guilty, waived a trial by jury and submitted his case to three judges. The three judges unanimously found him guilty of first degree murder, without a recommendation of mercy. A new trial was denied and defendant was sentenced to death.
The Court of Appeals reversed the judgment and remanded the cause to the trial court for further proceedings according to law.
The allowance of a motion for leave to appeal and an appeal as of right bring the cause to this court for review.
Paul R. Young, Pros. Atty., Robert G. Leland, Dayton, and Louis J. Hoffman, for appellant.
Jack H. Patricoff, Raymond A. White and Herbert M. Eikenbary, Dayton, for appellee.
The journal entry of the Court of Appeals, when read in the light of its opinion (see Andrews v. Board of Liquor Control [1955], 164 Ohio St. 275, 131 N.E.2d 390, paragraph four of the syllabus), indicates that the Court of Appeals reversed the judgment of conviction for first degree murder because of its determination that the finding of premeditation necessarily involved in that judgment was against the weight of the evidence.
The evidence in this case is such that the trier of the facts could have found either for the state or for the defendant on the question of premeditation. In such an instance, the Court of Appeals has a right to determine that there is insufficient credible evidence to sustain a finding against the defendant on that issue and may in its discretion grant not more than one new trial for that reason. See State v. Robinson (1955), 162 Ohio St. 486, 124 N.E.2d 148; State v. Geghan (1957), 166 Ohio St. 188, 140 N.E.2d 790.
Where a trial is not to a jury, a majority of the Court of Appeals may reverse a judgment on the weight of the evidence. Hnizdil v. White Motor Co. (1949), 152 Ohio St. 1, 87 N.E.2d 94; Section 6, Article IV, Constitution of Ohio.
Judgment affirmed.
To continue reading
Request your trial
-
Lincoln Properties, Inc. v. Goldslager
...Ohio St. 396, 25 N.E. 425; Stivers v. Borden (1870), 20 Ohio St. 232); or the right to jury trial has been waived (State v. Gilkerson (1965), 1 Ohio St.2d 103, 205 N.E.2d 13; Schafer v. Wells (1961), 171 Ohio St. 506, 172 N.E.2d 708; Miller v. Indus. Comm. (1953), 158 Ohio St. 551, 110 N.E.......
-
State v. Thompkins
...O.O. 23, 125 N.E.2d 328; Bown & Sons v. Honabarger (1960), 171 Ohio St. 247, 12 O.O.2d 375, 168 N.E.2d 880; State v. Gilkerson (1965), 1 Ohio St.2d 103, 30 O.O.2d 385, 205 N.E.2d 13; and Baxter v. Baxter (1971), 27 Ohio St.2d 168, 56 O.O.2d 104, 271 N.E.2d However, our findings today are at......
-
State v. Andre
...2013-Ohio-2888, ¶ 8, quoting State v. Hill, 7th Dist. Mahoning No. 09-MA-202, 2011-Ohio-6217, ¶ 49; see also State v. Gilkerson, 1 Ohio St.2d 103, 104, 205 N.E.2d 13 (1965). Reversal on manifest weight grounds is reserved for the "'exceptional case in which the evidence weighs heavily again......
-
State ex rel. Ogan v. Teater
...which the judgment is founded. Andrews v. Bd. of Liquor Control (1955), 164 Ohio St. 275, 281, 131 N.E.2d 390; State v. Gilkerson (1965), 1 Ohio St.2d 103, 104, 205 N.E.2d 13; see, also, Marshall v. Newington (1968), 156 Conn. 107, 239 A.2d 478; State ex rel. Moore v. Munchmeyer (W.Va.1973)......