
    Ezell v. The State of Ohio.
    (No. 20931
    Decided May 31, 1928.)
    
      Mr. Cornell Schreiber and Mr. Jesse S. Heslop, for plaintiff in error.
    
      Mr. LeRoy W. Hunt, prosecuting attorney, and Mr. Cecil Stickney, for defendant in error.
   By the Court.

The defendant, by indictment, was charged with murder in the second degree, and upon trial the jury found him guilty of manslaughter. The killing was not denied by the defendant, but he claimed the man he shot attacked him and that he acted in self-defense.

The determination of the guilt or innocence of the defendant turned upon the finding of the jury as to whether his action was excusable upon the ground of self-defense. The burden was upon the defendant to establish such defense, and the case was submitted to the jury under instructions concededly correct. No question of law is presented. A majority of the Court of Appeals found that the verdict was not manifestly against the weight of the evidence, and no other question was discussed or considered by either the majority or minority.

The only witnesses testifying to the occurrence were the defendant and the companion of the man who was killed, and their testimony is somewhat in conflict. The record discloses evidence upon which the jury could base its conclusion that the defendant’s act was not justified upon the ground of self-defense, and this court will not weigh the evidence.

It follows that the judgment of the Court of Appeals must be affirmed.

Judgment affirmed.

Day, Kinkade, Jones and Matthias, JJ., concur.

Marshall, C. J., and Allen, J., dissent from judgment.  