
    KOON v STATE
    Ohio Appeals, 3rd Dist, Marion Co
    No. 706.
    Decided Dec. 19, 1928
    Homer E Johnson, Marion, for Koon.
    Frank Wiedemann, Pros Atty and Carter M Patton, both of Marion, for State.
   JUSTICE, J

It is urged, by counsel for Koon, as the first ground of error, that there was no evidence tending, to prove that Koon, at the time he struck and mortally wounded Henry Foos, intended to rob him, and that, therefore, the verdict and judgment of the court of common pleas are contrary to law. With this contention we do not agree. Surely what Koon’s intention w,as when he struck Foos can be determined by his acts and conduct prior to, at, and after the struggle. The attending circumstances of the striking 'were put in evidence by the state, and, in our opinion, they spoke louder than words, clearly tending to prove that Koon intended to rob Henry Foos at the time he inflicted the mortal wound.

Coming now to the last assignment' of error, that is, error in the charge. The trial court, in part, instructed the jury as follows:

“It is for you to determine, from the evidence in this case, beyond a reasonable doubt, whether or not this defendant was engaged in a robbery or attempting to perpetrate a robbery, at the time of the commission of the alleged offense as charged in the second count in the indictment.”

Also:

“In order to find the defendant guilty of murder in perpetrating, or attempting to perpetrate, a robbery, as charged in the second count in the indictment, the state must Drove, by the evidence, beyond reasonable doubt, not only that the killing, was done by the defendant in manner and form, and at thé time and place, charged in the indictment, but that it was done purposely.”

Counsel fór Koon insists that these instructions were erroneous. With this contention we are not in accord. They were proper instructions, and, when taken in connection with the entire charge, correctly stated the law. The charge should be construed as a whole. Graham vs State, 98 Ohio St., 77. ,

Upon the whole case,we are unanimously of the opinion that Everett Koon had a fair trial.

Judgment of the court of common pleas should be .affirmed.

Hughes and Richards, JJ, the latter of the Sixth Appellate District, sitting by designation, concur.  