
    Turk v. The State of Ohio.
    (Decided May 31, 1934.)
    
      Mr. Frank G. Jones, for plaintiff in error.
    
      Mr. Frank T. Cullitan, prosecuting attorney, for defendant in error.
   Hamilton, P. J.

Ray I. Turk was jointly indicted with four other men under Section 12400, General Code, for murder in the first degree in perpetrating arson. Turk was tried separately. The trial of the case resulted in the conviction of Turk for murder in the first degree, with a recommendation of mercy, and he was sentenced to life imprisonment. Prom that conviction and judgment, Turk prosecutes error to this court.

The specifications of error are that the verdict and judgment are contrary to law; the admission and exclusion of evidence; and error in the charge of the court.

The contention of the state was that Turk, a part owner of the American Beauty & Barber Supply Company, located in a storeroom on the first floor of what is known as the Ellington building, on Superior avenue, Cleveland, procured the other defendants indicted with him to fire his store with a view of obtaining the insurance on the stock of goods. The upper floors of the Ellington were apartments in which were many dwellers. On the early morning of June 7,1933, a fire occurred, which the state claims originated in Turkis store. The fire spread to the building, practically destroying it, resulting in the deaths of several persons, among them Clara Withers, a resident in an apartment on one of the floors above the American Beauty & Barber Supply Company. The indictment is for “the murder of Clara Withers in perpetrating arson.”

The court in its charge to the jury did not charge on manslaughter, or lesser offenses included in the crime of murder, but submitted the case to the jury solely on the question of murder in perpetrating arson. The court charged the jury as follows:

“The burden rests upon the State to establish beyond a reasonable doubt the following elements constituting the crime charged in the indictment: That the defendant purposely set fire to the Ellington building in this county and state on the day in question, or purposely caused or procured it to be burned, or purposely aided or abetted another or others in such burning; that the building was occupied, at least in part, as a dwelling house, that is, used for human habitations; that such building was so set on fire wilfully and maliciously, or with intent to defraud; that the person named in the indictment was killed under circumstances constituting the res gestae, and that such fire was the proximate cause of her death.”

Nowhere in the charge did the court charge the purpose to kill or the necessary elements to constitute the crime. The statute, Section 12400, General Code, reads:

e* a ' "‘a “Whoever, purposely, or in perpetrating or attempting to perpetrate * * * arson * * * kills "‘another is guilty of murder in the first degree and shall be punished by death unless the jury trying the r* accused recommend mercy * #

It is apparent that the trial court took the view that *the word “purposely” applies to the setting fire to ¿nhe building, or procuring it to be burned, or purposely " aiding or abetting another. It was the common-law rule that any act known to be dangerous to life, and likely in itself to cause death, done with the purpose of committing a felony, which caused death, was murder. Reg. v. Serne and another, 16 Cox’s Criminal Law Cases, 311. This is not the law of the state of Ohio. The statute is clear and explicit, and the provision is “Whoever, purposely * * * kills.” In other words, there must be a purpose and intent to kill before the crime of murder is complete. The charge of the court in substance is that the purpose to do an act which results in death completes the crime.

The record evidence, which is some 4,000 pages, would be impossible to analyze in an opinion. There is no evidence in the record tending to prove a purpose or intent to kill. It is argued by the state that the defendant is presumed to intend the natural and probable consequences of his unlawful act. In other words, the state would have the jury and the court draw the inference that the defendant, Turk, when the fire was set, intended or purposed to kill Clara Withers, who had an apartment on an upper floor some distance away from the part of the building wherein Turk’s business was located. In no sense could this be considered as a natural and probable consequence of a burning of his store, for the purpose of securing insurance. It does not even tend to prove a purpose to kill her. This was a clear case of fflaiislaughter, if any crime was committed. On this ground alonB^vSie plaintiff in error would be entitled to a reversal of the judgment.

The evidence is amply sufficient to sustain the necessary conclusion of the jury that Turk was guilty of arson, which is an unlawful act, and if death resulted, would constitute manslaughter. It may be that had the court submitted the included crime of manslaughter, the jury might have found Turk guilty of manslaughter.

Some of the grounds of error complained of, although technical error, we do not find to be prejudicial, to wit, the admission of the statement of one Kammons with reference to the readiness of Turk for a fire, and some of the expert evidence given by the chief of the fire department, also some evidence with reference to an alibi. The admission of this evidence is subject to criticism, but there is ample evidence in the record to justify the jury in finding the defendant, Turk, guilty of arson, and that death resulted by reason thereof to Clara Withers.

The question then presents itself to the court as to what should be done in the interests of substantial justice under the statute.

Section 13449-1, General Code, paragraph 4, provides :

“That the verdict is not sustained by sufficient evidence, or is contrary to law; but if the evidence shows the defendant to be not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and pass sentence on such verdict or finding as modified, and this power shall extend to any court to which the cause may be taken by proceedings in error.”

The Constitution of Ohio (Article IV, Section 6), gives this court authority to modify a judgment. If it be claimed that the statute of Ohio may not confer jurisdiction on the Court of Appeals, the power to modify, as provided in the Constitution, does authorize this court to modify a degree of crime included in the verdict returned by the jury. \

As heretofore stated, the record discloses a clean case of the kilhn^.i^.jLpexsnnJxt4he-CJmums»on^!^anj unlawful act, which is manslaughter. It does not show a purpose or intent to kill requisite for murder in the first degree, as determined by the verdict. The court has, therefore, concluded to modify the verdict and judgment by reducing the express finding of murder to the included lesser crime of manslaughter; therefore the verdict and judgment of the Court of Common Pleas are set aside and the case is remanded to that court with instructions to resentence plaintiff in error, Turk, to the Ohio penitentiary for the period provided by the statute of Ohio for the crime of manslaughter.

Judgment modified and remanded.

Ross and Williams, JJ., concur.

Hamilton, P. J., and Ross, J., of the First Appellate District, and Williams, J., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.  