
    38663.
    The State of Ohio, appellant v. Loudermill, appellee.
   Schneider, Judge.

Where the evidence in a criminal case would support a finding by the jury of guilt of a lesser offense included in the offense for which defendant was indicted and tried, the refusal of the trial court to charge upon that lesser included offense is error prejudicial to the rights of defendant. (Paragraph two of the syllabus of State v. Patterson, 172 OhioSt. 319, 16 O.O.(2d) 116, overruled; Freeman v. State, 119 OhioSt. 250, and State v. Muskus, 158 OhioSt. 276, 49 O.O. 122, approved and followed.)

Judgment affirmed.

Taft, C. J., Herbert and Brown, JJ., concur.

Zimmerman, Matthias and O’Neill, JJ., dissent.  