
    CONNOR v STATE
    Ohio Appeals, 9th Dist, Summit Co
    No 2678.
    Decided Nov 27, 1935
    George Hargreaves, Akron, for plaintiff in error.
    Herman E. Werner, Prosecuting Attorney, Akron, for defendant in error.
   OPINION

By STEVENS, J.

The first assignment of error has been carefully studied and considered, and we find no prejudicial error in the charge as given.

The second and third assignments of error raise the same question, and will be considered together.

The second error alleged to have intervened raises the question as to whether or not there was sufficient evidence to have warranted the jury in reaching a conclusion that “deliberate and premeditated malice” had been shown.

Upon the evidence shown by this record, that the killing was purposeful and malicious cannot be doubted and considering all of the evidence and the circumstances attendant upon the homicide, we are unable to say that the finding by the jury of the existence of “deliberate and premeditated malice” was manifestly against the weight of the evidence.

As to the third ground of error, this court is unanimously of the opinion that the verdict is not only not manifestly rgcdnst the weight of the evidence, but is sustained thereby.

It will be remembered that during the entire altercation between defendant and decedent, defendant was the unprovoked aggressor, and the evidence, in the opinion of this court, warrants the conclusions that defendant was the person who inflicted the wound -which caused the death of the decedent, and that at said time defendant was not intoxicated, and the liquor which he had consumed was not sufficient to materially affect his power to deliberate, or appreciate what he was doing.

We are further of the opinion that the verdict of the jury, and the judgment and sentence thereon and thereunder, will bring to defendant a punishment justly merited, and in strict accord with existing laws. Judgment affirmed.

FUNK, PJ, and WASHBURN, J, concur in judgment.  