State v. Schaeffer

• Decision Date: 17 April 1917
• Docket Number: 15439.
• Citation: 96 Ohio St. 215,117 N.E. 220
• Parties: STATE v. SCHAEFFER.
• Court: Ohio Supreme Court

117 N.E. 220

96 Ohio St. 215

STATE v. SCHAEFFER.

No. 15439.

Supreme Court of Ohio.

April 17, 1917

Error to Court of Appeals, Lake County.

E. E Schaeffer was convicted of manslaughter, his motion for a new trial was overruled, and from a judgment of the Court of Appeals, reversing the judgment of the court of common pleas and remanding the case for a new trial, the State brings error. Judgment of Court of Appeals reversed, and judgment of common pleas court affirmed.

The defendant in error was found guilty of manslaughter by a jury in the court of common pleas of Lake county. A motion for new trial was overruled. Error was prosecuted in the Court of Appeals of Lake county, which court reversed the judgment of the court of common pleas and remanded the cause for a new trial. Error is prosecuted to this court to reverse the judgment of the Court of Appeals, and affirm that of the common pleas.

Syllabus by the Court

Manslaughter is the unlawful killing of another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of an act made unlawful by a valid statute.

In an indictment for manslaughter, such unlawful act need not be pleaded in the indictment. The short form of indictment provided in section 13583, General Code, is not in conflict with the constitutional guaranty that the accused shall be advised of 'the nature and cause of the accusation against him.'

Such unlawful act, relied on by the state as the basis for the charge of manslaughter, may be made unlawful by more than one statute. In such case it is error to compel the state to elect upon which statute it relies for a conviction. Bailey v. State, 4 Ohio St. 440, approved and followed.

Where an indictment for manslaughter charges the defendant with having 'unlawfully killed Adelbert Chaky, sometimes otherwise known as Buley Csaki,' and there is no evidence tending to prove the alias, or that both names were the names of the same person, such failure is not a fatal variance because it is not prejudicial to the merits of the case and the substantial rights of the defendant. Goodlove v State, 82 Ohio St. 365, 92 N.E. 491, 30 L. R. A. (N. S.) 134, 19 Ann. Cas. 893, disapproved.

Section 12603, General Code, prohibiting the operation of a motor vehicle 'at a speed greater than is reasonable or proper having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person,' is a valid statute.

Where all the evidence clearly and conclusively shows that the unlawful act relied upon by the state directly caused the killing, and there is no evidence to the contrary, the failure of the court to charge on assault, or assault and battery, is not error. Marts v. State, 2l Ohio St. 162, and Dresback v. State, 38 Ohio St. 365, approved and followed. So far as the case of Lindsey v. State, 69 Ohio St. 215, 69 N.E. 126, is in conflict with the two foregoing cases, said Lindsey Case is disapproved.

The unlawful act relied upon as the predicate for manslaughter must be the proximate cause of death. If death resulted from any other cause, or there be a reasonable doubt as to the unlawful act being the proximate cause of death, the jury should acquit. But where, upon the undisputed facts, it clearly and conclusively appears to a moral certainty that the unlawful act complained of was the proximate cause of death, a failure to so charge, especially where there was no request to so charge, is not reversible error.

In a prosecution for manslaughter under section 12603, General Code, the court should charge the jury that the standard of conduct required of the defendant in the operation of his car is that of an ordinarily careful and prudent person, and that if he did not operate the car 'at a speed greater than is reasonable or proper, having regard for width, traffic, use, and the general and usual rules of such road or highway, or so as to endanger the property, life, or limb of any person,' as would appear to such ordinarily careful and prudent person in the then situation, he was not guilty of manslaughter.

In a prosecution for manslaughter in the operation of motor vehicles, where defendant denied all knowledge of having struck deceased, and testified that he knew nothing about it at the time, his cross-examination as to whether, when notified, he went up to find out what he was accused of, was proper.

George C. Von Beseler, Pros. Atty., and Harry E. Hammar, both of Painesville, for the State.

Homer Harper and Alvord & Blakely, both of Painesville, for defendant in error.

WANAMAKER J.

Realizing the great importance of the questions arising in this case, both to the public for its safety of life and limb in the public streets and highways and to automobilists as to their rights in the use of the public streets and highways, unusual care and consideration has been given this case and the law applicable thereto.

Now, what are the facts of this case, so far as necessary for its intelligent and just determination? The state claimed that on the 2d day of August, 1915, in broad daylight, at about 5:30 p. m., the defendant in error, E. E. Schaeffer, was driving a touring car at from 25 to 30 miles an hour in a southerly direction, on the left side of one of the principal streets, known as High street, in the village of Fairport, having a population of about 3,000, and that he then and there and thereby ran over and fatally injured Adelbert Chaky, 'sometimes otherwise known as Buley Csaki,' a boy less than three years of age; that this was a thickly settled community, and that a large number of children were accustomed to play on this part of the street, and were so playing at the time of the killing; and that said children were then and there seen, and were admitted to be seen, by the defendant. The state further claimed that such high and dangerous rate of speed of said car was in violation of section 12603, General Code, which reads:

'Whoever operates a motor vehicle or motorcycle on the public roads or highways at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, shall be fined not more than twenty-five dollars,' etc.

And also in violation of section 12604, which reads:

'Whoever operates a motor cycle or motor vehicle at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality, or more than fifteen miles an hour in other portions thereof, or more than twenty miles an hour outside of a municipality, shall be fined,' etc.

The defendant denied the rate of speed charged by the state, and claimed to have been driving his automobile at only 8 miles per hour at the time named.

At the close of the state's evidence the defendant moved the court to require the state to elect under which statute, to wit, section 12603 or section 12604, it would rely for conviction. The state objected to the election. The court overruled the objection. Thereupon the state elected to proceed under section 12603. While this question was not before the Court of Appeals, the state having secured a judgment in the court of common pleas in its favor, notwithstanding this ruling of the trial judge, we deem it of sufficient importance to the criminal jurisprudence of the state, and to the public interest as well, to review this ruling.

The fair trial guaranteed by the Constitution and law of the land requires that it be fair, not only to the defendant, but fair likewise to the plaintiff, the state, the people of Ohio. The matter of election has been before this court so often that it would seem there should be no doubt as to the rights of parties under a long-established rule of criminal procedure. One of the earliest cases is that of Bailey v. State of Ohio, 4 Ohio St. 441. It is doubtful if the Supreme Court of Ohio was ever more distinguished for its legal learning and logic than at that time, when it was composed of Chief Justice Allen G. Thurman and Associate Justices Rufus P. Ranney, Thomas W. Bartley, Joseph R. Swan, and William Kennon. In the opinion of that case, in which all concurred, the following is pertinent:

'When an indictment charges two or more distinct offenses, differing in their nature, or arising out of distinct and different transactions, the court may compel the prosecutor to elect upon which charge he will proceed. But such election will not be required to be made, where the several charges in the indictment relate to the same transaction, or are simple variations or modifications of the same charge, with a view of meeting the proof.'

Manifestly there was but one transaction before the court in the case at bar. There was but one offense charged, and that was manslaughter; and there was also only one unlawful act, though one statute may have designated it in one form and another statute may have designated it in another. We hold that, under the conceded facts of this case and the settled rule of criminal procedure in Ohio, it was error against the state to require the prosecutor to elect. This same doctrine is approved and followed with reference to the manner in which a single offense is charged in Jackson v. State, 39 Ohio St. 37, State v. Bailey, 50 Ohio St. 636, 36 N.E. 233, and Carey v. State of Ohio, 70 Ohio St. 70 N.E. 955.

The errors complained of before the Court of Appeals, and which are here for review, may be briefly stated as follows:

(1) That the indictment did not set out facts sufficient to constitute a charge of manslaughter.

(2) Error in the cross-examination of the defendant.

(3) A fatal variance between the...