State v. Meyer
| Decision Date | 04 May 1955 |
| Docket Number | No. 34208,34208 |
| Citation | 126 N.E.2d 585,163 Ohio St. 279 |
| Parties | , 56 O.O. 256 The STATE of Ohio, Appellee, v. MEYER, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Although it is proper and probably the better practice for the trial court, in a first degree murder case, to charge the jury that the punishment provided for a conviction of first degree murder with a recommendation of mercy is life imprisonment and to refrain from explaining the power of the executive department to modify that punishment by way of pardon or commutation and parole, the trial court may in its discretion explain to the jury that power of the executive department to modify that punishment.
2. Where a trial court gives an instruction in answer to an inquiry of the jury which instruction is incomplete but correct as far as it goes, counsel has the duty to request the trial court to charge further so as to eliminate any possible confusion of the jury which may result from the incompleteness of such instruction. Any failure to charge further, if it is error, is an error of omission and not of commission. Unless counsel has requested the court to supply the omission, such error will not ordinarily justify reversal even in a criminal case. Paragraph one of the syllabus in State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 385, approved and followed.
3. It is an error of commission for the trial court to state to the jury that one found guilty of murder in the second degree shall be imprisoned for life and that a prisoner serving a sentence of imprisonment for life for a crime other than murder in the first degree shall become eligible for parole at the expiration of ten full years of imprisonment.
4. Such error will not justify reversal of a conviction of murder in the first degree without recommendation of mercy where the trial court had properly informed the jury that if it recommended mercy the penalty would be imprisonment for life in the penitentiary but that a prisoner serving a sentence of imprisonment for life for murder in the first degree, and having maintained a good prison conduct record, shall after having served 20 full years imprisonment be brought before the Pardon and Parole Commission for a hearing to determine the advisability of a recommendation for commutation of sentence.
5. Where the trial court fails to charge the jury to the effect that, in determining the question of guilt, the jury must not consider the punishment but the punishment rests with the judge, as may be provided by law, except as to first degree murder, but where no request is made that any such charge be given, the failure to so charge will not support a reversal of a conviction for first degree murder without recommendation of mercy. State v. Moon, 124 Ohio St. 465, 179 N.E. 350, followed.
Defendant was indicted for first degree murder because of the killing of his wife. Defendant pleaded 'not guilty' and 'not guilty by reason of insanity.'
At the trial, the court, in its general charge to the jury, after charging with respect to the elements of the crime of first degree murder and before charging with respect to the elements of the crimes of second degree murder and of manslaughter, charged in part as follows:
'In the event you find the defendant guilty, your next duty will be to decide whether or not you will recommend mercy; if you do, the penalty will be imprisonment for life in the penitentiary: subject, however, under present provisions of law, that if the defendant maintains a good prison conduct record, after having served 20 full years' imprisonment, he will be brought before the Pardon and Parole Commission for a hearing to determine the advisability of a recommendation for commutation of sentence. If you find the defendant guilty and do not recommend mercy, the defendant will be punished by death in the electric chair. To this extent, therefore, the Jury has the power to fix the penalty incident to a verdict of murder in the first degree as charged in the indictment, to consider and determine whether or not in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence, you should or should not make such a recommendation.
'* * * if you fail to find the defendant guilty of murder in the first degree, you will next consider and determine the issue as to murder in the second degree. This type of homicide is defined by the law of this state as follows:
[These identical words are set forth in Section 2901.05, Revised Code.]'
Defendant noted general exceptions to the charge as given.
After the jury had deliberated for a short time (less than 30 minutes), it sent the following in writing to the court:
Over objection by defendant and by the state, the court thereupon charged the jury as follows:
Subsequently, the jury brought in a verdict finding the defendant guilty of murder in the first degree. The jury did not recommend mercy.
The trial court overruled the defendant's motion for a new trial and pronounced sentence upon the defendant.
On appeal to the Court of Appeals the judgment of the trial court was affirmed.
The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to allowance of a motion for leave to appeal.
Richard C. Gerken, Logan, for appellant.
Fred A. Murray, Pros. Atty., and Phil A. Henderson, Logan, for appellee.
Defendant contends that the trial judge erred in what he said in his charge and in his answer to the question of the jury with respect to the effect of a recommendation of mercy in a verdict of guilty of first degree murder.
The last sentence of Section 2945.11, Revised Code, reads:
'The court must state to the jury that in determining the question of guilt, it must not consider the punishment but that punishment rests with the judge except in cases of murder in the first degree or burglary of an inhabited dwelling.'
Section 2901.01, Revised Code, reads in part:
'No person shall 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, kill another.
'Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.'
The second sentence of Section 2965.23, Revised Code, reads:
'A prisoner serving a sentence of imprisonment for life for murder in the first degree, and having maintained a good prison conduct record, shall after having served twenty full years' imprisonment be brought before the pardon and parole commission for a hearing to determine the advisability of a recommendation for commutation of sentence.'
Subdivision (C) of Section 2965.01, Revised Code, reads in part:
"Commutation' or 'commutation of sentence' means the substitution of a lesser for a greater punishment. * * * After commutation the commuted sentence shall be the only one in existence.'
Section 11, Article III of the Constitution, reads in part:
'He [the Governor] shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law.'
In view of the above-quoted portion of Section 2945.11, Revised Code, it is apparent that, in a case of murder in the first degree, the jury, in determining the question of guilt, may 'consider the punishment.' It is argued, however, that this limits the jury to a consideration merely of the penalty of life imprisonment in the event that mercy is recommended and of death in the event that it is not; and that it is error for the court to tell the jury anything further with respect to the question of punishment.
It the trial judge had done as defendant argues he should have done, he would have avoided any risk of error in this respect.
Thus the syllabus in State v. Schiller, 70 Ohio St. 1, 70 N.E. 505, reads:
'1. On the trial of an indictment for murder in the first degree where the court instructs the jury that if they shall find the defendant guilty as charged, they may, if they think proper, recommend mercy; and further instructs them that the legal effect of such recommendation by them will be to change the punishment of the accused from death to imprisonment in the penitentiary for life, such instruction is a correct and sufficient charge or instruction on that subject.
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