State v. Muskus

• Citation: 109 N.E.2d 15,158 Ohio St. 276
• Decision Date: 19 November 1952
• Docket Number: No. 33035,33035
• Parties: , 33 A.L.R.2d 452, 49 O.O. 122 STATE v. MUSKUS.
• Court: United States State Supreme Court of Ohio

Page 276

158 Ohio St. 276

109 N.E.2d 15, 33 A.L.R.2d 452, 49 O.O. 122

STATE v. MUSKUS.

No. 33035.

Supreme Court of Ohio.

Decided Nov. 19, 1952.

Syllabus by the Court.

1. Murder in the first degree in the perpetration of a robberty may include the lesser offenses of murder in the second degree and manslaughter, and where, in the trial of a defendant for murder in the first degree in the perpetration of a robbery, there is substantial evidence tending to support a charge of murder in the second degree or manslaughter, the court should charge the jury on murder in the first degree and on the included lesser offenses. (Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A.L.R. 594, approved and followed.)

2. In the trial of a defendant for murder in the first degree, the prosecuting attorney in his argument to the jury made, among other prejudicial statements, the following: 'It makes me boil--makes me boil to know that we have to waste the Stark county taxpayers' money to try a fellow like that--got to waste your money and your money and your money and everybody else's, for a couple of people like that' and 'Oh, look at the money it is costing this county to try two transient bums who came in this town to take some easy money' and 'Do you want the state of Ohio to support this man the rest of his life in the penitentiary.' Objections thereto were overruled and the court directed the prosecuting attorney to 'proceed.' Held: Such statements were a direct appeal to the pecuniary interests of the jury and highly improper, and the refusal of the court to sustain objections thereto constituted prejdicial error.

This cause originated in the Court of Common Pleas of Stark County with the return of an indictment by the grand jury of that county, which, with the formal parts omitted, reads as follows:

'That Sandra L. Kingsley, alias Wanda Brown alias Mrs. Robert Starr and Russell Muskus, alias Robert King, alias Robert Starr late of said county on or about the 2nd day of December in the year of our Lord one-thousand nine-hundred and fifty, at the county of Stark aforesaid, did unlawfully, purposely, and while perpetrating robbery, did kill one George J. LeMasters, then and there being, contrary to the statute in such cause made and provided, and against the peace and dignity of the state of Ohio.'

The defendant, Muskus, entered a plea of not guilty and upon trial was convicted of murder in the first degree without recommendation of mercy and was sentenced accordingly.

In an appeal to the Court of Appeals the defendant assigned as error the refusal of the trial court to charge the jury upon the lesser offenses which may be included in an indictment for first degree murder; the admission of evidence objected to; certain remarks by the court deemed prejudicial; and the court's failure to sustain objections to portions of the argument to the jury by the prosecuting attorney, which it is alleged were prejudicial to the rights of the defendant.

The Court of Appeals affirmed the conviction, holding that 'there is no evidence tending to support a charge of murder in the second degree or manslaughter'; that no prejudicial error had intervened by reason of the admission of testimony; and that, although the argument of the prosecuting attorney was not to be commended, prejudicial error did not result therefrom.

The cause is before this court upon the allowance of a motion for leave to appeal.

John Rossetti, Prosecuting Attorney, and Samuel Krugliak, Canton, for appellee.

Ralph W. Ross and Carl F. Klein, Canton and George Howells, Massillon, for appellant.

MATTHIAS, Judge.

There are but two assignments of error in the appeal to the Court of Appeals and in the appeal to this court which require our consideration. It is contended in the first assignment of error that 'the trial court erred in refusing to include in its charge to the jury the grades of homicide less than first degree murder, as charged in the indictment, when evidence to warrant a charge of the lesser degrees of homicide was present.'

The indictment was brought under that portion of Section 12400, General Code, which reads as follows:

'Whoever, purposely, and either of deliberate and premediated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.'

This statute has been considered by this court in several cases and the rule is established by such authority that where an indictment charges a defendant with murder in the commission of a felony and no other degree of homicide is charged and the evidence tends to prove no lesser offense, no instructions should be given to the jury concerning murder in the second degree or manslaughter. However, where there is evidence to support a lesser charge the defendant may rightfully be convicted of the lesser offense and the court would be justified in so instructing the jury. See 21 Ohio Jurisprudence, 51, Section 14.

This rule is stated in Section 13448-2, General Code, which provides in part as follows:

'The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense.'

In the case of Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A.L.R. 594, this court, in an extended opinion, interpreted the statute under consideration, and the applicable rule is clearly set forth in the syllabus which is as follows:

'1. Murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter. Whether in an indictment for murder in the first degree in the perpetration of a robbery, a charge is warranted as to murder in the second degree, or manslaughter, depends, however, not merely upon whether or not these are literally included in the formal charge, but upon whether or not there is any evidence tending to support a charge of murder in the second degree, or manslaughter.

'2. If the indictment charges murder in the first degree in the perpetration of a robbery, under section 12400, General Code, and there is no evidence tending to support a charge of murder in the second degree, or manslaughter, as distinguished from murder in the first degree, then the defendant, upon the failure of proof as to murder in the first degree, is entitled to an acquittal, and, in such case, it is not error for the court to refuse to charge either murder in the second degree or manslaughter.'

To the same effect see Malone v. State, 130 Ohio St. 443, 200 N.E. 473 and State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11, 12.

In the Farmer case, supra, previous decisions of this court were reviewed beginning with the case of Robbins v. State, 8 Ohio St. 131, and the rule therein established that an essential element of the crime of first degree murder is an intention to kill, even where the killing occurs in the perpetration of the named felonies, is restated in paragraph one of the syllabus, which is as follows:

'Under Section 12400, General Code, an essential element of the crime of first degree murder is an intention to kill, even where the killing is 'by means of poison or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary.''

In view of this well established rule, was the Court of Appeals correct when it found that there was no evidence tending to support a charge of murder in the second degree or manslaughter? The determination of that question requires a brief summary of the evidence adduced in the trial.

The record discloses that the defendant and Sandra Lee Kingsley came to Canton, Ohio, on or about December 1, 1950, and checked in at the Milner Hotel as man and wife under an assumed name. The defendant and Sandra Lee Kingsley had been living together under various assumed names in Cleveland and Akron prior to coming to Canton. For some time it had been her practice to go into and about barrooms, pick up men and take them to her rooms for the purpose of prostitution, the revenue from which she shared with the defendant.

The record discloses further that on the afternoon of December 2, 1950, she met the decedent, George LeMasters, in a barroom and later took him to her room in the Milner Hotel for the purpose of prostitution. The decedent procured some beer and sandwiches which were taken to her room. About 20 minutes later the defendant entered the room and found the decedent and ...