White v. Maxwell, 37767
| Decision Date | 06 February 1963 |
| Docket Number | No. 37767,37767 |
| Parties | , 22 O.O.2d 140 WHITE v. MAXWELL, Warden. |
| Court | Ohio Supreme Court |
Joseph White, in pro. per.
Mark McElroy, Atty. Gen., and James E. Rattan, Columbus, for respondent.
Petitioner's primary contention relates to the validity of his indictment. He attacks the indictment on various grounds, the first being that there was an improper amendment thereto. Because of the confusion in this matter, the original court records of Cuyahoga County were ordered introduced into evidence. The petitioner contends that the name of the decedent was changed from Eddie to Essie Walker. An examination of the original indictment shows that petitioner was indicted for the killing of Essie Walker for which crime he was tried and convicted. The only amendment made to the indictment was by stipulation during the trial when petitioner's correct name was inserted in the indictment. This kind of amendment is permissible under Section 2941.30, Revised Code. Petitioner claims that the indictment was altered or counterfeited. Apparently, petitioner's argument is based on typographical errors made in other actions which he pursued in an attempt to procure his release. None of these occurred during or relate to his original trial.
Next, petitioner urges that his indictment was void for failing to allege an intent to kill. The pertinent parts of petitioner's indictment read as follows:
'The jurors of the Grand Jury of the state of Ohio, within and for the body of the county aforesaid, on their oaths, in the name and by the authority of the state of Ohio,
'Do find and present, that Joseph White, correct name, Apee Hamp Chapman on or about the 8th day of February, 1953, at the county aforesaid, unlawfully, purposely and of deliberate and premeditated malice killed Essie Walker, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.'
Section 2941.05, Revised Code, provides:
Section 2901.01, Revised Code, defines, as follows, murder in the first degree:
'No person shall purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or burglary, kill another.
'Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.
'Murder in the first degree is a capital crime under Sections 9 and 10 of Article 1, Ohio Constitution.'
An examination of these sections together with the indictment shows that the indictment was in the words of the statute and was valid on its face. Although it is true that intent is a basic element of the crime of murder in the first degree, an allegation that the accused purposely killed is equivalent to an allegation that the accused intentionally killed. 'Intentionally' and 'purposely' are synonymous in this regard.
Petitioner claims that the indictment was void for failure to set out the lesser included offenses which arise out of a homicide. It is, of course, true that where one is indicted for murder in the first degree the jury may find him guilty of any lesser included offense. Marts v. State, 26 Ohio St. 162; Section 2945.74, Revised Code. However, although an accused may be convicted of a lesser included offense, it is not necessary that each lesser included offense of a crime be set forth in the indictment.
Petitioner alleges generally that the indictment was defective for failure to set forth the time and place and type of weapon used in commission of the crime. None of these are essential elements in an indictment, and if petitioner required such information it was available to him by means of a bill of particulars. Section 2941.07, Revised Code.
Petitioner urges also as ground for his relief that he was denied a preliminary hearing. The purpose of a preliminary hearing in Ohio is merely what the term implies. It is not to hear all the evidence and determine the guilt or innocence of the accused but rather to determine whether sufficient evidence exists to warrant binding the accused over to the grand jury, where, after a more thorough investigation of the evidence, it is then...
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State v. Maurer, 84-642
... ... Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, 7 and adopted by this court in State v ... State v. Osborne, supra, 49 Ohio St.2d 141-142, 359 N.E.2d 78; White" v. Maxwell (1963), 174 Ohio St. 186, 189, 187 N.E.2d 878 [22 O.O.2d 140, 141] ... \xC2" ... ...
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