State v. Salmon

• Decision Date: 25 May 1967
• Citation: 226 N.E.2d 784,10 Ohio App.2d 175
• Parties: , 39 O.O.2d 336 The STATE of Ohio, Appellee, v. SALMON, Appellant.
• Court: Ohio Court of Appeals

Page 175

10 Ohio App.2d 175

226 N.E.2d 784, 39 O.O.2d 336

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

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 25, 1967.

John T. Corrigan, Pros. Atty., and George J. Moscarino, Cleveland, for appellee.

Marshall I. Nurenberg and William E. Mahon, Cleveland, for appellant.

ARTL, Chief Justice.

The defendant was indicted, tried and convicted by verdict of a jury for the crime of murder in the first degree, the jury having recommended mercy. On March 23, 1965, sentence was pronounced, ordering defendant to be imprisoned in the Ohio Penitentiary for life. Motion for new trial filed on March 26, 1965, was overruled by the court on April 12, 1965. Defendant brings this appeal on questions of law.

The assignments of error, seven in number, read as follows:

1. The court erred in entering a judgment of conviction of the crime of first degree murder upon the verdict of the jury.

2. The court erred in overruling defendant's motion for a new trial.

3. The court committed errors of commission and omission in its charge to the jury.

4. The court erred in permitting the prosecution to introduce evidence and exhibits over the objections of the defendant.

5. The court erred in the rejection of evidence and exhibits offered by the defense.

6. The court erred in the conduct of the trial.

7. The verdict is manifestly against the weight of the evidence.

The indictment charged defendant with the crime of first degree murder in that 'thomas Salmon, on or about the 25th day of October 1964, at the county aforesaid, unlawfully, purposely and of deliberate and premeditated malice killed Atlas Osborne contrary to the form of the statute * * *.'

The defendant concedes that there was never a dispute that Thomas Salmon, defendant, did fire from his .22 caliber rifle within the confines of his home at 2267 West 7th Street, Apartment 1, Cleveland, Cuyahoga County, Ohio, the fatal shot; nor was there any controversy as to the cause of death, it being conceded at the outset to be the result of a single .22 caliber bullet penetrating the brain of the decedent, resulting in his virtually instantaneous death. The factual controversies developed in this case and other facts necessary to an understanding and determination of the claimed errors will be referred to hereinafter.

For the purpose of our opinion, we shall defer a discussion of assignments of error numbers one and two together with number seven until after we have studied the errors claimed to have occurred during the trial. The first such error to be examined will be number three, which reads:

The court committed errors of commission and omission in its charge to the jury.

Specifically, defendant claims that the court erred in its charge on the defense of voluntary intoxication and in its refusal to charge upon anger. From the record it is apparent that defendant had engaged in a great amount of drinking of alcoholic beverages for a long period up to almost a moment before the fatal shooting. His counsel advanced the defense of voluntary intoxication, not as a complete defense to the crime but only for its value as an element to show defendant's inability to premeditate and deliberate upon the killing or intent necessary to prove first degree murder and thus obtain the reduction of such charge to a lesser included offense. At no time did the defendant ever interpose the defense of insanity, nor seek a not guilty verdict by reason of alcoholism or otherwise.

The portion of the charge to which defendant alludes as highly prejudicial is as follows:

'And if you should find by a preponderance of the evidence that is the greater weight of the evidence, that the defendant was intoxicated to such an extent that he was incapable of distinguishing between right and wrong and of knowing what he was doing or forming an intent, and if he was intoxicated to such extent that he could not deliberate and premeditate, then in that event, the offense would be reduced from murder in the first degree to a lesser offense.' (Emphasis ours.)

The matter of voluntary intoxication is discussed in 27 Ohio Jurisprudence 2d 622, et seq., Homicide, Section 80. There we find the following:

'Voluntary drunkenness, although not a justification or excuse for the commission of crime, may be a partial and often a complete defense to a charge of homicide, depending upon what specific intent is required in the particular crime and whether the defendant was so drunk that his mind was incapable of entertaining such intent. Hence, if he was so intoxicated at the time he killed the deceased that his mind was incapable of deliberation and premeditation, he cannot be guilty of murder in the first degree. Or if drunkenness prevented him from having the intent to kill, the defense is good as against a charge of first or second degree murder.'

In view of the court's charge as given referring to the 'right and wrong' test, the following comment quoted in the same article set forth above is, we believe, of some significance:

'The drunkenness of an accused who has killed another is not to be classed with insanity unless the derangement which it causes had become fixed and continuous by the drunkenness being habitual, or by chronic alcoholism, thereby rendering the accused incapable of distinguishing between right and wrong, the same as insanity produced by any other cause.' Rucker v. State, 119 Ohio St. 189, 162 N.E. 802; State v. Pierce (App.) 6i N.E.2d 270, 44 Ohio Law Abs. 193.

The cases cited to support this proposition are: Nichols v. State, 8 Ohio St. 435; Adams v. State, 29 Ohio St. 412; Cline v. State, 43 Ohio St. 332, 1 N.E. 22; Long v. State, 109 Ohio St. 77, 141 N.E. 691; Rucker v. State, 119 Ohio St. 189, 162 N.E. 802; State v. Vargo, 116 Ohio St. 495, 156 N.E. 600; State v. Pierce (App.), 62 N.E.2d 270, 44 Ohio Law Abs. 193.

In our study of the problem we find that the charge complained of as erroneously given in our case is patterned quite closely on the charge given in Long v. State, 109 Ohio St. 77 supra, which was approved by the Supreme Court. From an examination of the opinion in the Long case, supra, we note that defense counsel therein contended that the defendant was not claiming intoxication as a defense to the prosecution and that intoxication was only pertinent to the inquiry as showing inability of the accused to meditate and deliberate upon the killing. The trial court imposed upon the defendant the burden of proof which the defense claimed was error. But what is of extreme importance and what definitely distinguishes the Long case from the case at bar is the fact that the Supreme Court, upon an analysis of the facts, came to the conclusion that the defendant did in fact urge intoxication as a defense, and discussed the merits of defendant's assignment of error in that context and for the reasons stated in the opinion overruled the claimed error.

Paragraphs two and three of the syllabus in the case of Rucker v. State, 119 Ohio St. 189, 162 N.E. 802, define the proper application of the law with respect to voluntary intoxication. They read:

'2. Acute alcoholism or mental incapacity produced by voluntary intoxication, existing temporarily at the time of the homicide, is generally no excuse or justification for the crime. Proof of such intoxication, however, is competent and proper for the jury to consider as bearing upon the question of intent and premeditation, in determining whether the accused is guilty of murder in the first degree or some lesser degree of homicide, or to show that no crime was committed. Nichols v. State, 8 Ohio St. 435; Davis v. State, 25 Ohio St. 369; Cline v. State, 43 Ohio St. 332, 1 N.E. 22, and Long v. State, 109 Ohio St. 77, 141 N.E. 691-approved and followed.

'3. Drunkenness is not insanity, nor does it answer to what is termed an unsound mind, unless the derangement which it causes becomes fixed and continued by the drunkenness being habitual, or by chronic alcoholism, and thereby rendering the party incapable of distinguishing between right and wrong, the same as insanity produced by any other cause.'

In the case before us, it is quite clear that neither intoxication nor anger was claimed as a defense. Its only pertinence has to do with the element of premeditation and deliberation. There is nothing in the record herein to indicate habitual drunkenness or chronic alcoholism on the part of the defendant to bring the case within the purview of insanity as referred to in Rucker, supra.

Indicative of what a proper charge on the subject should be is that given in the case of State v. Vargo, 116 Ohio St 495, 156 N.E. 600. The Supreme Court gave its approval to the charge as given by the trial court. It follows:

'As we have said to you, if you find from the evidence in the case, established by a preponderance of the evidence by the defendant, that by reason of anger or intoxication, or both, that the mind of the accused was in such condition that he was incapable of reflection, or deliberation, or premeditation, then he cannot be found guilty of murder in the first degree.

'And if you should find from the evidence, and a preponderance of the evidence, that by reason of his intoxication and anger he was in such condition as to be incapable of forming any intention or design to take the life of the deceased, then he could not be found guilty of murder in the second degree, but would be guilty of manslaughter only.'

In the charge given, the court points out at page 508 of its opinion, at page 604 of 156 N.E., that the language contained in the charge, to wit: 'established by a preponderance of the evidence by the defendant,' was subject to criticism and stated that '(a)n accurate instruction would, of course, have left the preponderance to be determined by all the evidence.' But it determined that the jury could not have been misled by this.

We therefore conclude and hold that it...