
    No. 724
    SOUTHARD v. STATE
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1718.
    Decided June 7, 1926
    629. INDICTMENTS — Where defects or other imperfections of an indictment do not tend to prejudice the substantial rights of the defendant, it will not be held invalid.
    Attorneys — Lionel Levy for Southard; Roy R. Stuart, Pros. Atty., and John C. Cochrane, Asst. Pros. Atty., for State; all of Toledo.
   RICHARDS, J.

James Southard was tried in the Lucas Common Pleas on an indictment charging him with unlawfully and purposely killing one Fred Wengert, while attempting to perpetrate a robbery. A verdict of guilty was returned but the jury recommended mercy, and Southard was sentenced accordingly.

Error was prosecuted, it being claimed by Southard that the court erred in the admission of evidence; in its charge and in its refusal to charge; and also that no offense was charged in the indictment. The only important question relates to the sufficiency of the indictment. The Court of Appeals held:

1. The indictment is the short form; and it is insisted that it is defective in the failure to' set forth facts constituting attempting to perpetrate a robbery; and it is urged that it only charges a conslusion in that respect.
2. Under an indictment drawn with detail formerly practised, if the killing of Wengert had been charged to have been with deliberate and premeditated malice, the prosecutor could have introduced in evidence facts showing that the killing was in the attempt to perpetrate a robbery, although such attempt was not mentioned in the indictment.
3. Southard was given more information by the present indictment than would have been afforded by one more elaborate.
4. Courts are slowly but surely eliminating many of the senseless technicalities which have so long prevailed in the administration of justice. 109 OS. 77.
5. The indictment is valid; but if it were defective it would not be fatally so within the purview of 13581 GC. which provides that the indictment shall not be held invalid “for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”

Judgment affirmed.  