
    Rudner v. The State of Ohio.
    (Decided October 17, 1927.)
    
      
      Mr. George Gordon Battle and Mr. E. L. Mills, for plaintiff in error.
    
      Mr. H. W. Harter, Jr., prosecuting attorney, and Mr. C. B. McClintoch, for defendant in'error.
   Richards, J.

Ben Rudner, Patrick Eugene Mc-Dermott, and Louis Mazer, were jointly indicted for first degree murder in the killing of Don R. Mellett in the city of Canton, the indictment charging that the murder was committed unlawfully and purposely and with deliberate and premeditated malice.

Ben Rudner was tried separately, and the jury returned a verdict finding him not guilty of murder in the first degree, but guilty of murder in the second degree. Thereupon a motion in arrest of judgment was filed by the defendant, and later an amended motion in arrest of judgment was filed, based on the ground that the offense of second degree murder is not embraced within the indictment, and that the evidence did not tend to make out a case of second degree, murder against the defendant. In the amended motion the defendant contended, and now contends, that, if the evidence had a tendency to' prove anything, it had a tendency to prove first degree murder, committed as a result of deliberation and premeditation.. The defendant, having been found not guilty of first degree murder, therefore insists that he is entitled to be discharged under the clause of the Constitution of Ohio (Article 1, Section 10) which provides that .no person shall be twice in jeopardy for the same offense, and insists also that to further prosecute him is a violation of the federal Constitution. The defendant also filed a motion for new trial, based on various grounds. All of these motions were overruled, and defendant was sentenced to the penitentiary on the verdict finding him guilty of second degree murder. A bill of exceptions was taken, setting out all of the evidence.

The defendant, now plaintiff in error, came into this court and filed a motion to dismiss the error proceedings brought by him, in so far as they pertain to the motion for a new trial, and asking that this cause proceed for hearing and determination by this court on the motion in arrest of judgment and discharge of the prisoner only. That motion has been granted by this court, and the only matter remaining for consideration is whether the motion in arrest of judgment and to discharge the prisoner should have been granted by the trial court.

We have no hesitancy in reaching a conclusion that the crime of murder in the second degree is embraced, as an included offense, within the indictment charging first degree murder, in this case, under the provisions of Section 13692, General Code. The charge is not one of murder committed in attempting to perpetrate a robbery, as was the case in Duvall v. State, 111 Ohio St., 657, 146 N. E., 90.

It is not contended in this case that Ben Eudner was present at the shooting of Don E. Mellett, which occurred in the city of Canton on July 16, 1926, but it is contended that he conspired with certain other persons to bring about the murder, and the record contains much evidence which, if believed by the' jury, would have justified a verdict of murder in the first degree. Counsel urge that the record contains no evidence to justify a verdict of guilty of murder in the second degree, and insist that the motion in arrest of judgment should therefore have been granted and the defendant discharged. To sustain this contention reliance is placed on Sparf and Hansen v. United States, 156 U. S., 51, 15 S. Ct., 273, 39 L. Ed., 343, and Bandy v. State, 102 Ohio St., 384, 131 N. E., 499, 21 A. L. R., 594,

Certainly it must be conceded that no one can properly be convicted of crime unless the evidence is such as to justify a finding by the jury that he is guilty of that particular crime. The jury having found Rudner not guilty of murder in the first degree, the question remains whether evidence was introduced which, if believed by the jury, would justify returning a verdict of guilty of murder in the second degree. The bill of exceptions contains testimony, the credibility of which was for the jury, tending to show the existence of a conspiracy against Don R. Mellett — between Rudner and certain other persons — and that Rudner had said he “wanted a guy beaten up,” and that he would pay for it. The evidence clearly shows that the man referred to was a newspaper publisher, who is easily identified by the evidence as Don R. Mellett.

The evidence contained in the bill of exceptions discloses a case within the principle announced by the Supreme Court in the opinion in State v. Doty, 94 Ohio St., 258, 263, 113 N. E., 811, 813. On the latter page the rule is stated in the following language :

“If Doty conspired with Sullivan in a deliberate and premeditated purpose to kill, he would be guilty of murder in the first degree, although he did not in fact fire the shot. And if Doty engaged in a conspiracy or common design, having for its purpose the use of deadly weapons or force and violence upon the workmen at Christ Hospital, and the crime committed was the natural and probable consequence of the execution of such common design, or was undertaken under such circumstances as would probably endanger human life, then Doty, under our statute, would be equally guilty with Sullivan who actually fired the shot, although Doty neither knew of nor connived at the shot. ’ ’

Murder in the first degree involves deliberation and premeditation, and these are not involved in second degree murder. The state, in prosecuting a first degree murder case, may often prove the homicide, and that it was purposely and maliciously committed, and may be unable to prove the further element of deliberation and premeditation, and thus be unable to establish beyond a reasonable doubt all of the elements constituting murder in the first degree, although the evidence may show beyond a reasonable doubt that the defendant was guilty of murder in the second degree.

Certainly from the evidence disclosed in the bill of exceptions in this case, the plaintiff in error cannot have been prejudiced by the fact that the jury found him guilty of murder in the second degree, instead of murder in the first degree.

We do not find it necessary to determine in this case whether a verdict of guilty of murder in the second degree could be sustained in a case where all the evidence showed beyond a reasonable doubt that the homicide was committed purposely and maliciously, and with a deliberate and premeditated purpose on the part of the defendant to kill.

Thus far the court has assumed, notwithstanding the order dismissing the motion for a new trial and the alleged grounds of error in support thereof, that the court would still be justified in looking to the bill of exceptions to ascertain the existence or nonexistence of error. The alleged errors now relied on arise wholly on the motion in arrest of judgment, and such motion has no greater scope than is provided by statute. Under the provisions of Section 13748, General Code, a motion in arrest of judgment can only be granted(for two'causes: First, that the grand jury had no legal authority to inquire into the offense charged, because it was not committed within the jurisdiction of the court; and, second, because the facts stated in the indictment do not constitute an offense. If either one of these grounds existed, it would appear upon the face of the record; but it is perfectly clear that neither of these grounds ha-s any foundation in fact or law in this case.

We find no prejudicial error, and the judgment is affirmed.

Judgment affirmed.

Williams and Lloyd, JJ., concur.

Judges Richards, Williams and Lloyd, of the Sixth Appellate District, sitting in place of Judges Shields, Lemert and Houck, of the Fifth Appellate District.  