OPINION
By HAMILTON, J.
Hobbs was convicted by a jury in the Common Pleas Court of Butler County under the third count of an indictment, charging him ..with the killing of a person in attempting to perpetrate a burglary. He was found guilty of murder in the first degree , without a recommendation of mercy He prosecutes an appeal to this court on questions of law.
Several points of error are stressed, tut only one of the errors oomplained of is sufficiently important to consider. That question involves Special Charge No. 1, requested by the state and given to the jury. It is as follows:
“The court instructs you that if you find from the evidence that the defendants, William Hobbs and Charles Vincent Rose, or either of them, pursuant to a conspiracy or common design, entered upon the premises occupied by Mike Verticil m the city of Hamilton, Butler county, Ohio, 'with intent to break and enter the building on said premises, and said defendants, or either of them, committed some overt act in attempting to break and enter said building, then the defendant, William Hobbs, would be guilty of attempting to . perpetrate a burglary.”
As an abstract proposition of law, this charge is defective, m that it fails to state that the attempted breaking was for the purpose of stealing, which is necessary in the common Jaw definition of burglary. Is that omission prejudicial to the appellant in this case?
The strict rule applying to special charges in civil cases does not apply in a criminal case. Indeed, they may be refused entirely by the trial court in a criminal case. We, therefore, must consider this charge in the light of the facts as shown by the record.
Hobbs made a confession under the interrogation of the officers and the prosecuting attorney. This confession is important as bearing on the question of in-lent. It will be noted that the charge in question was apparently intended by the prosecutor and by the court to be a special charge on the aiding and abetting statute, and the necessity of an overt act to show the attempted burglary. The words “with intent to steal” were evidently overlooked in considering the main object of the charge.
Let us consider the evidence as bearing on the question of the intent to steal.
Under the interrogation of the prosecuting attorney, Hobbs states as follows:
“Q. Where did you intend to go that night when you started out with John Agnew?
A. No certain place set.
“Q. Going out to get some money?
A. He said ‘get up’ and I was drinking and he said ‘get up, let’s go out and make some money.’
“Q. Did you know what he meant by that?
A. Well, I didn’t hardly know exactly how he meant it — I ain’t knowed him over three or four weeks.
“Q. You knew you weren’t going out and work at that time of the night?
A. Yes.
“Q. You knew you were going out to steal something?
A. He didn’t say that we was going to steal.
"Q. But you knew in your own mind what you were going to do?
A. Yes.”
In the confession of Charles Vincent Rose he states:
“We left there with John Agnew driving and he drove out to the National Dairy cn the Middletown Pike and on the way Agnew said there was a safe in there that would be easy to take off. We looked at the Dairy and there was a light burning sc we left the Dairy and came back to town. John Agnew said, T know a place up on 3rd street that would be easy.’ We asked him where it was. He said, ‘up by Niles on North 3rd street.’ After he said where the place was I knew the place he meant which was Mike Vertich’s Place as I had drank beer there before.”
Chief of Police Calhoun testified that after the arrest of the three men, of which the defendant was one, he took them out to where the killing took place and the building which they attempted to burglarize. He testified:
"I asked what they did when they got to the rear of the place (Vertich’s place) that night. Rose says in the presence of Hobbs 4 * * ‘We walked through this gate and we went up on the cellar door that leads to a window. Rose tried to raise the window. We tried again and Rose says this window won’t open.’ I turned to Hobbs and said is that how you tried to get in the window? Pie said ‘yes’. So x said then ‘What did you intend to do?’ He said ‘we intended to go to the front and break in the front.’ I said to Rose ‘What did you expect to break in with?’ Hobbs answered ‘we intended to find something.’ ”
While attempting to break into the building, the deceased officer came upon the ground, and defendant Hobbs fired three shots from his revolver, killing the officer.
The evidence is undisputed that they started out to commit a burglary and get some -easy money. They prepared them» selves by taking a few drinks, going to a sister’s, getting revolvers, loading the same, and started out to burglarize some establishment or place to get something. As Hobbs said in his confession: While Agnew didn’t say that “we was going to steal”, but he knew in his own mind what he was going to do.
The third count of the indictment charges:
“And the Jurors of the Grand Jury aforesaid at the time and place aforesaid, or their oaths, in the name and by the authority of the State of Ohio, do further find and present that said William Hobbs, Charles Vincent Rose and John Agnew, late of said county, on or about the 12th day of April in the year of our Lord one thousand nine hundred and thirty-seven at the County of Butler aforesaid, did unlawfully, purposely, and while attempting to perpetrate a burglary, kill Arthur Sponsel.”
This count of the indictment charges the crime under the statute and was the issue of the case. On this issue, the court in its general charge, charged the jury as follows:
“You will note that the defendant, William Hobbs is charged with killing Arthur Sponsel while attempting to perpetrate a burglary. It will be necessary for you to determine whether the evidence shows beyond a reasonable doubt that he was, at the time, attempting to perpetrate a burglary. In this connection the court says to you that it is the law of this state that whoever aids, abets or procures another to commit an offense may be prosecuted and punished as if he were the principal offender. And so you will ascertain whether the defendant, William Hobbs, was at that time attempting to perpetrate a burglary or if lie was aiding or abetting some other person in attempting to perpetrate a burglary. If he was aiding or abetting another person in attempting to perpetrate a burglary, he would be deemed in jaw to be guilty of said crime as the one actually; manually or physically engaged in attempting to commit the burglary.”
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
By HAMILTON, J.
Hobbs was convicted by a jury in the Common Pleas Court of Butler County under the third count of an indictment, charging him ..with the killing of a person in attempting to perpetrate a burglary. He was found guilty of murder in the first degree , without a recommendation of mercy He prosecutes an appeal to this court on questions of law.
Several points of error are stressed, tut only one of the errors oomplained of is sufficiently important to consider. That question involves Special Charge No. 1, requested by the state and given to the jury. It is as follows:
“The court instructs you that if you find from the evidence that the defendants, William Hobbs and Charles Vincent Rose, or either of them, pursuant to a conspiracy or common design, entered upon the premises occupied by Mike Verticil m the city of Hamilton, Butler county, Ohio, 'with intent to break and enter the building on said premises, and said defendants, or either of them, committed some overt act in attempting to break and enter said building, then the defendant, William Hobbs, would be guilty of attempting to . perpetrate a burglary.”
As an abstract proposition of law, this charge is defective, m that it fails to state that the attempted breaking was for the purpose of stealing, which is necessary in the common Jaw definition of burglary. Is that omission prejudicial to the appellant in this case?
The strict rule applying to special charges in civil cases does not apply in a criminal case. Indeed, they may be refused entirely by the trial court in a criminal case. We, therefore, must consider this charge in the light of the facts as shown by the record.
Hobbs made a confession under the interrogation of the officers and the prosecuting attorney. This confession is important as bearing on the question of in-lent. It will be noted that the charge in question was apparently intended by the prosecutor and by the court to be a special charge on the aiding and abetting statute, and the necessity of an overt act to show the attempted burglary. The words “with intent to steal” were evidently overlooked in considering the main object of the charge.
Let us consider the evidence as bearing on the question of the intent to steal.
Under the interrogation of the prosecuting attorney, Hobbs states as follows:
“Q. Where did you intend to go that night when you started out with John Agnew?
A. No certain place set.
“Q. Going out to get some money?
A. He said ‘get up’ and I was drinking and he said ‘get up, let’s go out and make some money.’
“Q. Did you know what he meant by that?
A. Well, I didn’t hardly know exactly how he meant it — I ain’t knowed him over three or four weeks.
“Q. You knew you weren’t going out and work at that time of the night?
A. Yes.
“Q. You knew you were going out to steal something?
A. He didn’t say that we was going to steal.
"Q. But you knew in your own mind what you were going to do?
A. Yes.”
In the confession of Charles Vincent Rose he states:
“We left there with John Agnew driving and he drove out to the National Dairy cn the Middletown Pike and on the way Agnew said there was a safe in there that would be easy to take off. We looked at the Dairy and there was a light burning sc we left the Dairy and came back to town. John Agnew said, T know a place up on 3rd street that would be easy.’ We asked him where it was. He said, ‘up by Niles on North 3rd street.’ After he said where the place was I knew the place he meant which was Mike Vertich’s Place as I had drank beer there before.”
Chief of Police Calhoun testified that after the arrest of the three men, of which the defendant was one, he took them out to where the killing took place and the building which they attempted to burglarize. He testified:
"I asked what they did when they got to the rear of the place (Vertich’s place) that night. Rose says in the presence of Hobbs 4 * * ‘We walked through this gate and we went up on the cellar door that leads to a window. Rose tried to raise the window. We tried again and Rose says this window won’t open.’ I turned to Hobbs and said is that how you tried to get in the window? Pie said ‘yes’. So x said then ‘What did you intend to do?’ He said ‘we intended to go to the front and break in the front.’ I said to Rose ‘What did you expect to break in with?’ Hobbs answered ‘we intended to find something.’ ”
While attempting to break into the building, the deceased officer came upon the ground, and defendant Hobbs fired three shots from his revolver, killing the officer.
The evidence is undisputed that they started out to commit a burglary and get some -easy money. They prepared them» selves by taking a few drinks, going to a sister’s, getting revolvers, loading the same, and started out to burglarize some establishment or place to get something. As Hobbs said in his confession: While Agnew didn’t say that “we was going to steal”, but he knew in his own mind what he was going to do.
The third count of the indictment charges:
“And the Jurors of the Grand Jury aforesaid at the time and place aforesaid, or their oaths, in the name and by the authority of the State of Ohio, do further find and present that said William Hobbs, Charles Vincent Rose and John Agnew, late of said county, on or about the 12th day of April in the year of our Lord one thousand nine hundred and thirty-seven at the County of Butler aforesaid, did unlawfully, purposely, and while attempting to perpetrate a burglary, kill Arthur Sponsel.”
This count of the indictment charges the crime under the statute and was the issue of the case. On this issue, the court in its general charge, charged the jury as follows:
“You will note that the defendant, William Hobbs is charged with killing Arthur Sponsel while attempting to perpetrate a burglary. It will be necessary for you to determine whether the evidence shows beyond a reasonable doubt that he was, at the time, attempting to perpetrate a burglary. In this connection the court says to you that it is the law of this state that whoever aids, abets or procures another to commit an offense may be prosecuted and punished as if he were the principal offender. And so you will ascertain whether the defendant, William Hobbs, was at that time attempting to perpetrate a burglary or if lie was aiding or abetting some other person in attempting to perpetrate a burglary. If he was aiding or abetting another person in attempting to perpetrate a burglary, he would be deemed in jaw to be guilty of said crime as the one actually; manually or physically engaged in attempting to commit the burglary.”
Now how was the appellant prejudiced by the fact that the charge complained against omitted the words “with intent to steal”, when the evidence shows the purpose beyond a peradventure of a doubt?
That .a case should not be reversed on a technical error, and that it must be prejudicial is provided in §13449-5 GO-wherein it is stated:
“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court in case of an inaccuracy or imperfection in the indictment, information or warrant’, provided that the charge be sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him; !! '
*
nor for any misdirection of the jury unless the accused was or may have been prejudiced thereby; nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”
See also: State v Moon, 124 Oh St, 465; State v Huffman, 131 Oh St, 27, 5 O O 325, Scott v State, 107 Oh St 475-497.
' In State of Ohio v Driscoll, 106 Oh St 33, the question of the failure of counsel 1o call the attention of the court to any omission in the charge is dealt with particularly. In that case the court failed to charge the jury that to constitute rape they must find that the subject of the. rape was a female person. The court’s attention was not called to this error' by counsel for the defendant. The Court of Appeals observed in that case: “There is evidence tending to prove all of the material ingredients of the crime.” The Supreme Court quoted this with approval, and further stated:
“Upon this feature of the case the charge of the court was above criticism, except for the omission to instruct the jury that it must find that the prosecuting witness was a female person other than the daughter or sister of the accused and that she was not a female person under twelve years of age. Upon this point it is admitted that no request was made by counsel for the accused to supply the omission and it is also conceded that no testimony was tendered by the, defendant tending to disprove the testimony of the state in relation thereto.”
From this decision it may be well considered that there was a duty upon counsel in the instant case to call the attention of the court to any omission in the charge.
In state v McCoy, 88 Oh St, 447, the court at page 450 said:
“Therefore, it is now a settled rule of practice in this state that it is the duty of the trial court, both in criminal • and civil cases, to separately and definitely state to the jury the issues they are to try, accompanied by such instruction as to each issue as the nature of the case may require. Measured by this rule this charge is defective in that it fails to definitely cover all the issues in the case. It la equally a settled rule of practice in this state that where the charge as given is free from prejudicial error but fails to cover all the questions involved in the case, such failure is not a ground for reversal unless it was called to the attention ol the court and further instructions requested and refused, provided the jury is not misled by the charge as given.”
In the Driscoll case, supra, the Supreme Court stated:
“It should be added that the error complained of is purely technical, that it could not have prejudiced the accused, and- that a full instruction on that point would not have caused the jury to reach a different verdict.”
In the Moon case, supra, the Supreme Court stated:
“Those provisions (§13449-5 GC), are mandatory in requiring that a judgment end conviction shall not be reversed for cither of t-hf several causes enumerated, nor ‘for any misdirection of the jury unless the accused was or may have been prejudiced thereby; nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial’.”
The writer’s view of the case is, that while special chai'ge No. 1 was not technically cox-rect, as an abstract proposition, in so far as it related to the case it gave the jury the law. The objection to the chai’ge is purely technical and could not have prejudiced the accused, in view of the undisputed fact that they were attempting to break in a building to get something, or to get some money. Had the court inserted the words “with intent to steal” it would not have caused the jui-y to reach a different verdict. At least there is nothing in the record to indicate that such might be the case.
Finding no prejudicial error in the record, the judgment is affirmed.
BOSS, PJ, eoncui’s
MATTHEWS, J, dissents.