29 Ohio St. 412 | Ohio | 1876
Counsel of the plaintiff in error rely in support of their principal ground for the reversal of the judgment, on a point ruled in Robbins v. The State, 8 Ohio St. 132.
It was held in that case to be error for the court to in
Such instruction was regarded as an invasion by the eourt of the province of the jury, as the duty of the jury is defined in section 39 of the crimes act.
That section provides, “ that in all trials for murder, the jury before whom the trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter.” '. . .
It was not intended by the ruling above referred to in Robbins’ case, to deny that it is the right and duty of the court to instruct the jury upon all questions of law arising before them in the case; nor to relieve the jury from the duty of receiving the law as given to them by the court.
The principle of the ruling is that the jury must not be imperatively required to render a verdict for a particular degree of homicide; nor must the instruction be such as to deny to them the power of rendering such verdict as their judgment and conscience dictate, after being fully instructed as to their duty.
In Pennsylvania, the statute is similar to the statute in -this state; and the supreme court of that state has given •the same construction to their statute as was given to ours in •the case of Robbins. Rhodes v. Commonwealth, 49 Penn. St. 396; Lane v. Commonwealth, 59 Penn. St. 371.
In Shaffner v. Commonwealth, 72 Penn. St. 60, the court 'below charged: “ If the prisoner is guilty, there can be no .difficulty in ascertaining the degree, for being by poison, it must be in the first degree if purposely administered. . . If you are convinced that he is guilty of the crime, it is murder in the first degree as declared by the act of the ¿assembly, and it is your duty to say so without regard to -¿the consequences to the prisoner.” -
In the opinion it is said: <{ The language in this ease approaches closely the boundary line of peremptoriness, but we-can not say it overstepped it, in view of those parts of the-charge which left them (the jury) free to act for'themselves.”
In the present case, the jury were fully instructed as to-the several grades of the crime; but they were left free, if they found the defendant guilty, to fix the grade according-to their judgment..
True, they were told that if the defendant purposely killed the deceased in attempting to rob him, the offense-was murder in the first degree, and not murder in the second degree. This was correct, and it was the duty of the-court to so instruct the jury.
Rut it is contended that the jury were told, impliedly, by the charge, that they could convict the defendant of murder-in the second degree under the first count only.
This is not a valid objection. The means by which the homicide was accomplished is described in the same way in both counts. Hence, if the defendant was guilty of murder-in the second degree uuder the secoud count, he was necessarily guilty of the same offense under the first count; and it was, therefore, wholly immaterial as'respects the lights of the defendant, whether the verdict, in the event of such finding, was returned under the first or second count. The-facts found and the effect would be the same in either case.
We see no error in the refusal of the court to charge the-jury as requested as to the degree of proof required to-establish drunkenness.
The language of the request was so indefinite and uncertain as to be calculated to confuse and mislead the jury. This is a sufficient reason for its rejection.
A question is made as to the charge on the subject of the-intoxication of the defendant at the time of the homicide..
All that it is deemed necessary to say on this point is, that taking the charge as given at the request of the defendant-,.
The exception in this case was a general one to the-whole charge. "Where parts of a general charge are excepted to, the objectionable parts ought to be specifically pointed out at the time the exception is taken. Adams v. The State, 25 Ohio St. 584.
■In the case of Robbins, already referred to, the exception was general to the wdiole charge. But no objection was made on that ground. The errors in that case, moreover, went to the substance of the crime with which the defendant was charged.
But notwithstanding the imperfect way in which the exception was taken, we have (as the defendant is convicted of a capital offense) considered the errors assigned on the charge, and finding them not wrell taken, the judgment is affirmed.
