State v. Hreno
| Decision Date | 17 November 1954 |
| Docket Number | No. 34017,34017 |
| Parties | , 55 O.O. 97 The STATE of Ohio, Appellee, v. HRENO, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. By virtue of the provisions of Section 13448-2, General Code (Section 2945.-74, Revised Code), where other offenses are included within the offense charged in an indictment, the jury may find the defendant not guilty of the offense charged but guilty of a lesser included offense.
2. An offense is a lesser included offense, where all the elements of such offense are present with others in the offense charged in an indictment.
3. The offenses of intentionally and without malice pointing or aiming a firearm at or toward a person, and of intentionally and without malice discharging a firearm so pointed or aimed, as defined in Section 12422, General Code (Section 3773.04, Revised Code), are lesser included offenses of the offense of maliciously shooting at another person with intent to kill, wound or maim as defined in Section 12420, General Code (Section 2901.23, Revised Code).
This is an appeal from a judgment of the Court of Appeals for Trumbull County affirming a judgment of the Common Pleas Court of that county, which court found the defendant, appellant herein, guilty of 'pointing and discharging firearms' and sentenced him to serve a term of one year in the Trumbull County jail and to pay a fine of $100 and costs.
Pursuant to the provisions of Section 12420, General Code, Section 2901.23, Revised Code, the defendant was indicted for the offense of 'shooting with intent to wound,' but the jury under the charge of the trial court found the defendant guilty of 'pointing and discharging firearms.'
Pursuant to the provisions of Section 12422, General Code, Section 3773.04, Revised Code, both the trial court and the Court of Appeals held that the latter offense was a lesser included offense of the offense charged.
The indictment grew out of an altercation between the defendant and a group of boys, including one Charles H. Sager, Jr., the boys being engaged in stoning and damaging a billboard and other property of a drive-in theater where the defendant was employed. Upon the appearance of the defendant, the boys fled, and while they were in flight the defendant pointed and fired a gun, as a result of which Sager was shot and wounded. The defendant claimed he did not intend to stoot Sager or any of the other boys in the group.
The defendant did not file a motion for new trial but filed instead a motion for judgment notwithstanding the verdict. The Common Pleas Court overruled the same.
The Court of Appeals affirmed the judgment.
Charles H. Anderson, Pros. Atty., Warren, Paul B. Moritz, Niles, and J. Don Campbell, Warren, for appellee.
Mitchell F. Shaker, Niles, for appellant.
The principal error assigned by the defendant is that 'the Court of Appeals erred in affirming the judgment and sentence of the Court of Common Pleas in finding the defendant-appellant guilty of the crime of pointing and discharging a firearm, for the reason that said offense is not included in the offense with which he was charged, to wit, 'shooting with intent to wound."
Section 12420, General Code, under which the defendant was indicted, provides as follows:
'Whoever maliciously shoots, stabs, cuts, or shoots at another person with intent to kill, wound or maim such person, shall be imprisoned in the penitentiary not less than one year nor more than twenty years.'
Section 12422, General Code, provides as follows:
The court charged the jury with respect to the indictment that the state must prove that the shooting, if it occurred, was done unlawfully and maliciously and with intent to wound Charles Sager. The court further charged as follows:
'However, should you find that this defendant is not guilty of the crime of which he stands charged in the indictment, it would then become your duty to consider whether or not he may be guilty of one or more of certain lesser crimes which are in the concept of the law included within the crime of shooting with intent to wound. * * *
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The defendant claims that the offense of 'pointing and discharging firearms' is not one included in the offense charged, for the reason, among others, that although malice is an element of the offense of shooting with intent to wound, it is not an element of the offense of pointing and discharging firearms. In support of this contention the defendant cites the case of Riflemaker v. State, 25 Ohio St. 395, wherein the court held:
'On an indictment for maliciously cutting with intent to wound, a verdict of 'guilty of cutting with intent to wound,' is not sufficient to...
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