Early v. State

16 Ohio C.C. 646

• Court: Ohio Circuit Courts
• Decided: January 15, 1898
• Status: Published

Opinion

Swing, J.;

Cox and Smith, JJ, concur.

The only ground of error relied on in this case, is that the court erred in its charge to the jury on the question of deliberation and premeditation. The court in its charge on this subject among other things said:

“The time will vary as the minds and temperaments of men and circumstances under which they are placed will vary. Deliberation and premeditation for a moment as well as for a week or longer will render an intentional killing murder in the first degree, ”

' M. F. Wilson, for Plaintiff in Error. John O, Schwartz,and Thomas H. Darby, for the State.

It is claimed that this comes within the ruling in the Burns case (3d Weekly Law Gazette, 323). In that case the judge charged the jury that “deliberation and premeditation may be accomplished in a very short time — in a moment — so swift it thought,” and this the district court, through Judge Brinkeihoff, said was error. It seems to us that there is a marked distinction between the two charges. The court here says that if there was deliberation and premeditation, even for a moment, it will render an intentional killing murder in the first degree. The jury were told that if they found that deliberation and premeditation took place even for a moment, it was sufficient to constitute murder. The judge did not tell the jury in what time it might take place. But in the Burns case the judge told the jury that premeditation and deliberation might take place in a moment. This was clearly error, and the court so held. But the court here did not attempt to tell the jury how long a time it would take for one to deliberate and premeditate.

We think the charge as given was correct, and the judgment will be affirmed. .