State v. Patterson

• Decision Date: 14 June 1961
• Docket Number: No. 36693,36693
• Citation: 175 N.E.2d 741,172 Ohio St. 319
• Parties: , 16 O.O.2d 106 STATE of Ohio, Appellant and Cross-Appellee, v. PATTERSON, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 319

172 Ohio St. 319

175 N.E.2d 741, 16 O.O.2d 106

STATE of Ohio, Appellant and Cross-Appellee, v.PATTERSON, Appellee and Cross-Appellant.

No. 36693.

Supreme Court of Ohio.

June 14, 1961.

Syllabus by the Court

1.The factual situation in each criminal case determines the necessity of instructing the jury on lesser included offenses rather than the fact that certain offenses are literally included in the crime formally charged in the indictment.Bandy v. State, 102 Ohio St. 384 , 131 N.E. 499, 21 A.L.R. 594, approved and followed.

2.Even though facts in such a case may warrant instructions to the jury on lesser included offenses, the refusal to so instruct is tantamount to a directed verdict of not guilty of all the lesser included offenses, inures to the defendant's benefit and is not prejudicial to him.

The defendant, Ellis Patterson, Jr., was indicted jointly with James Bradley, Jr., by the Grand Jury of Stark County for second degree murder.There are three counts in the indictment alleging the deaths of three individuals, the result of a four-car collision occurring during a prearranged race between cars driven by Bradley and Patterson.Counsel was appointed for Patterson.Upon arraignment, Patterson entered a plea of not guilty to all three counts.Trial was had resulting in a verdict of guilty on all counts as charged in the indictment.After a motion for new trial was overruled, Patterson was sentenced to life imprisonment.

The Court of Appeals reversed the judgment of the trial court for failure to charge on lesser included offenses and remanded the cause for a new trial.

The state filed a motion for leave to appeal and the defendant filed a cross-motion for leave to appeal.Both motions were allowed.The matter is, therefore, before the court on two assignments of error urged by the state and on the same 12 assignments of error urged by the defendant in the Court of Appeals.

Norman J. Putman, Pros.Atty., and Ira G. Turpin, Canton, for appellant and cross-appellee.

Frank J. Menster and L. M. Roraback, Canton, for appellee and cross-appellant.

RADCLIFF, Judge.

Considering, as we do, the case of Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A.L.R. 594, as the best pronouncement by this court on the question of lesser included offenses, we will have to make some resume of the facts in this case, as was done in the Bandy case, in order to justify the application of the rule of the Bandy case to the question herein.

The defendant and Bradley were indicted jointly for killing three people.They were tried separately.The state charges that defendant and Bradley were in a tavern on the outskirts of the city of Canton and were engaged in a discussion of the relative speeds of two automobiles.Bradley was arguing the merits of a car loaned to him while Patterson was extolling the speed of his own car.The state's position is that they discussed speed and agreed to race the cars, whether there was a wager placed on the outcome being in dispute.Pursuant to this agreement, defendant and Bradley got into their cars and without regard for the rights or lives of or consequences to others on the highway started to race down a public highway in Stark County and ultimately into the city of Canton.The state alleges further that they drove between 75 and 100 miles an hour, indicating malice and total indifference to the dire results which might flow from the performance of these unlawful acts.While thus engaged in this race, the car in which the three decedents were riding was struck and their deaths resulted by virtue of this unlawful agreement and concert of effort on the part of Patterson and Bradley.

The state was faced with a difficult problem of proof because in nearly every instance the witnesses upon which it was forced to rely were either hostile or reluctant.This is understandable as they were friends or acquaintances of both Patterson and Bradley.

The defense of Patterson is that he was on the highway; that there was an accident but that he had nothing to do with it; that he was not engaged in a race with Bradley and, in fact, there was no agreement to race; and that he had not engaged in any discussion or agreement to participate in a race.

This appeal brings before us in all its ramifications the question of lesser included offenses.In the trial court, a seasonable request was made by the attorneys for the defendant to charge upon first degree manslaughter and second degree manslaughter as lesser included offenses of second degree murder.The trial judge refused so to do.In refusing counsel's request to charge on the so-called lesser included offenses, the trial judge gave his reasons to counsel outside the hearing of the jury but included in his general charge substantially the same theory.It is regretted that the following long quotation from the charge is inserted herein, but we feel that it is necessary:

'In considering the elements of intent and purpose, which are elements the state must prove beyond a reasonable doubt, and defining the meaning of the word 'intent' in other language, I charge you that 'intent' to kill may be inferred, if from all the surrounding circumstances you find that Patterson, either as principal, or as an aider and abettor, was conscious of the peril or probable peril to human life he created, if you find that he engaged in a contest of speed in his automobile on a public street, either through a voluntarily prearranged plan or by a voluntary overt act on his part.

'It will be for you to determine from all the surrounding circumstances, as shown by the evidence, whether such purpose and intent to kill on the part of the defendant, Patterson, is to be so inferred.

'I further direct your attention to a definition of what constitutes an aider and abettor.If you find beyond a reasonable doubt that the crimes charged in the indictment were committed in the manner and form as charged, it is not necessary for you to find that the defendant actually and personally committed the offenses, if you find he aided and abetted another person who actually committed the offenses and acted in concert with him with the intent and purpose of aiding and abetting such other person in the commission of such offenses and in pursuance of a common design and purpose previously formed, or by an overt act on the defendant's part which showed he acted in concert with another in its commission.

'Ordinarily that person is regarded as the principal who performed the act complained of, and one who acts in concert with him, and with the purpose and intent to aid in the performance of the act and the commission of the offense, is an aider and abettor.

'The law, however, provides that whoever aids and abets another to commit an offense will be prosecuted as if he were the principal offender.I say to you, as a matter of law, that if you find a crime was committed, as charged in the indictment, under the instructions given you, and you find the defendant, Patterson, had either formed a joint design to violate the law, or by an overt act on his part, joined with another in violation of the law, by engaging in a contest of speed with his automobile on the public streets, if you find he was so aware that the probable consequences of their joint act would cause the death of a human being, the defendant would be guilty of the crimes charged, regardless of whether the defendant's automobile was the instrumentality which caused the deaths.

'If the state has failed to prove beyond a reasonable doubt that the defendant did personally commit the crimes charged against him, or fails to prove beyond a reasonable doubt that the defendant aided and abetted another in their commission, you should find the defendant not guilty.

On the other hand, if you find the defendant-Patterson, either as principal, or as an aider and abettor, in Stark County, Ohio, on or about September 12, 1959, maliciously and purposely, and with an intent to kill, did cause the three deaths referred to in the indictment, you should find him guilty of murder in the second degree on all of...