State v. Palfy

• Decision Date: 28 June 1967
• Citation: 229 N.E.2d 76,11 Ohio App.2d 142
• Parties: , 40 O.O.2d 302 The STATE of Ohio, Appellee, v. PALFY, Appellant.
• Court: Ohio Court of Appeals

Page 142

11 Ohio App.2d 142

229 N.E.2d 76, 40 O.O.2d 302

The STATE of Ohio, Appellee, v. PALFY, Appellant.

Court of Appeals of Ohio, Ninth District, Summit County.

June 28, 1967.

Syllabus by the Court

1. A person engaged in a common design with others to rob by force and violence various individuals of their property is presumed to acquiesce in whatever may be frasonably necessary to accomplish the object of the enterprise; and if, under the circumstances, it might be reasonably expected that the victim's life would be endangered by the manner and means of performing the criminal act conspired, each one engaged in the common design is bound by the consequences naturally or probably arising in its furtherance and, in case of death, would be guilty of homicide.

2. It the conspired robbery, and the manner of its accomplishment, would be reasonably likely to produce death, each plotter is equally guilty with the principal killer, as an aider and abettor in the homicide, even though the aider and abettor was not aware of the particular weapon used to accomplish the killing. An intent to kill by the aider and abettor may be found to exist beyond a reasonable doubt under such circumstances.

James V. Barbuto, Pros. Atty., and Stephan M. Gabalac, Akron, for appellee.

John A. Bailey and Max W. Johnstone, Akron, for appellant.

DOYLE, Judge.

In this case, we are asked to reverse and set aside a state of Ohio conviction of the appellant, John Palfy, Jr., for the crime of murder in the first degree.

Pursuant to indictment by a grand jury, and a plea of not guilty thereto, the accused, with the advice of counsel, duly waived a trial by jury and, under the statutes extant, stood trial before a panel of three Judges of the Court of Common Pleas, which court, at the conclusion of the trial, adjudged him guilty of murder in the first degree, recommended mercy, and sentenced him to life imprisonment in the penitentiary.

The appeal to this court, from the judgment set forth above, presents the following asserted errors. They are claimed to be prejudicial and, therefore, to entitle the appellant to a new trial. They are:

'1. The judgment of the court is not sustained by sufficient evidence:

'(a) The state did not adduce proof to show the defendant guilty beyond a reasonable doubt.

'(b) The state did not present evidence to support the judgment of the court.

'2. The court erred in overruling the defendant's motion for a mistrial.

'3. The judgment of the court is contrary to law.'

The appellant contends that the state failed to prove 'intent' to kill, which is said to be an essential element of the crime. To this claim, we now direct attention.

The evidence shows that on July 29, 1966, this appellant, John Palfy, Jr., and four associates, Ray Pemberton, Ray Kling, Vernon Boyd, and Merle Pemberton, came to Summit County by automobile from an adjoining county to borrow money from a friend of Ray Pemberton. Money was borrowed from the friend and, when the loaner asked about repayment, he was told by Ray Pemberton, in the presence of all his companions, that they would 'roll' some people, obtain money and repay the loan. They proceeded to visit several bar rooms looking for prospective victims to 'roll,' and, when riding from one bar to another, they observed a young man named Eric Silket walking on the sidewalk with a package under his arm. Ray Kling and Vernon Boyd alighted from the car, each wearing metal knuckles, and, after viciously assaulting him with their armored fists, drawing blood from their victim and seriously injuring him, they stole the merchandise in the package, placed it in the car, and resumed the tour of violence with their companions. Continuing to cruise the streets looking for another victim, they stopped at several bars, one of which was called the City Bar. Here, the appellant, Palfy, Ray Pemberton and Ray Kling, met a bar customer named Ivan Ward, who agreed to travel with them to the Glass Bar at another location. When the five companions, and their most recent acquaintance, reached the vicinity of the bar room, the new victim, Ward, was severely beaten and assaulted by all five of the hoodlums, and robbed of his money, after which he was dropped from the car, placed on the ground, and again severely beaten. Metal knuckles were also here used. The victim spent seven days in a hospital as a result of his misadventure.

It further appears in the evidence that by this time the clothing of this appellant, and others, was saturated with the blood of their prey so they left their quarry, Ward, lying on the ground, and continued on to a laundromat, where they used the machines to wash their clothes, including a sweater of this appellant, Palfy. The following morning, Ward's wallet, with various personal papers, was found in the toilet of the laundry, where the wallet had been left by one of the members of the gang, after it had been stripped of money.

The hoodlums left the laundromat in their automobile, in search of other victims, and, as they cruised in the Kenmore area of Akron, Summit County, they observed one Paul Morlan walking on the sidewalk in the immediate vicinity of his home. He was observed, in discussion, as an easy one to rob. Ray Pemberton and Ray Kling alighted from the car, and, armed with metal or brass knuckles, accosted Morlan. Morlan was robbed of his money and, in an accompanying altercation, Ray...