
    No. 712
    HEAD v. STATE
    Ohio Appeals, 7th Dist., Mahoning County
    March 21, 1924
    33. CRIMINAL LAW — An error in the court’s charge concerning a lesser degree of crime, is unimportant if a verdict of guilty is found upon a higher degree of crime.-----
    Attorneys — David Shermer and Leo S. Wil-koff, for Head; H. H. Hall, Pros. Atty., for State; all of Youngstown.
   ROBERTS, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Clem Head, a negro, procured a revolver from the house of one Sellers in Youngstown, and going outside the house, he listened a few moments to an argument between Sellers and a man named Payne, and! then, without provocation, drew the revolver and shot Payne. A short time later, while walking in a street, he was discovered and accosted by police officers, and he fired at them, wounding one. He then fled and was pursued by several persons. One of these persons, Antonucei by name, overtook Head and grasped him whereupon Head shot Antonucei through the heart, killing- him. Head fled further, but was soon overpowered and, captured. He was indicted for the killing of Antonucei, and tried in the Common Pleas, and by the verdict of a jury, found guilty of murder in the first degree. The defense was that Head was so badly intoxicated as to have been incapable of premeditation. The court instructed the jury that manslaughter was the taking of human life unintentionally, while engaged in a sudden quarrel. Head prosecuted error on several grounds. The Court of Appeals held:

The evidence clearly indicated an absence of such intoxication as to impair Head’s physical ability or his mental operations.

The correct definition of manslaughter is the unlawful killing of another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act. The act may be intentional and still constitute manslaughter in a sudden quarrel, 25 OS. 369,373. By the court’s charge, the right to a decree of manslaughter was extended to defendant only in case the act was unintentional. However, the erroneous charge was not prejudicial to defendant for the reason that the jury found him guilty of a higher degree of crime. Judgment affirmed.  