
    No. 263
    MOORE v. STATE
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1476.
    Decided Jan. 26, 1925.
    333. CRIMINAL LAW—Evidence that constable on trial for killing suspected bootlegger had no warrant, followed by explicit instructions to jury is immaterial and not prejudical.
    Published only in Ohio Law Abstract
   CHITTENDEN, J.

Epitomized Opinion

Charles Moore was charged by an indictment with having unlawfully, purposely, and maliciously, killed one, Anthony Mayer. The crime charged was murder in the second degree. Upon trial in the common pleas the verdict returned by the jury was for the crime of manslaughter and not second degree murder.

Attorneys—Allen J. Senéy, for Moore; Roy R. Stuart, Pros. Atty., for State; both of Toledo. ¡;

It appears that Moore was a constable and with several fellow constables acting upon outside information, hastened to a certain street in Toledo, where a machine was found in which was a vessel containing whiskey. Mayer, the owner of the machine came upon the scene and'was told by Moore that he was under arrest, and that the machine would also be taken. Mayer resisted, and in the melee, struck and knocked to the ground one Kalis, a constable. Moore claimed that Mayer then rushed at him, and in, the struggle-a revolver in Moore’s hand was , accidentally ( discharged fatally wounding Mayer. ¡-.The state -claims that after Mayer had struck-Kalis,’-Moore, standing at a distance of 5, or 6 feetifrom- Mayer -with his revolver took deliberate aim . and fired, :the-bullet striking him in the neck,,causing a ’wound from which he died in a very short time; . .!■ ,.

• Witness -for the state was permitted’to testify that Moore, when searched; had no ’warrant upon his person, for the arrest of Mayer.

: ¡To • this Moore objected'; 'He 'Urged-' that’ ¡the court ¡erred in admitting such evidence, ¡that the jury’ was not" proper," and -'the’'>verdict '5wa’si against the' weight of: the evidence; The court1 of appeals held: •''■■■ - ‘

1. It is inconceivable that the'evidence admitted,’ in view of thé Clear'and* explicit ¡dírec-’ tions given by the trial court as-to the right of constables to search automobiles, arid ihake.' arrests without warrant Could have' preju-dicially affected the rights of Mooré.'

' 2. The definition of manslaughter given in' charge to jury'Was proper." 'State.v. Schaeffer, [ 96 OS. 215, 222., ' " " ' " ,

The verdict is "riot clearly manifestly ^contrary to the weight of the'evidence, 12’0S.!Í46 arid since no prejudical error exists, the judgment of the trial court will be affirmed-  