
    Ralls v. The State of Ohio.
    (Decided August 11, 1931.)
    
      Mr. Arden W. Wisman and Mr. Elmer W. Lutz, for plaintiff in error.
    
      Mr. J. D. Sears, for defendant in error.
   Klinger, J.

The plaintiff in error, Blanton Ralls, was jointly indicted with Walter Ralls and Elijah Ralls, at the January term, 1931, of the court of common pleas of Crawford county, Ohio, for the crime of murder in the first degree, under Section 12402-1, General Code (111 Ohio Laws, 77). This section of the Code provides:

“Whoever purposely and wilfully kills a sheriff * * * while such sheriff * * * is in the discharge of his duties, is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

To this indictment the plaintiff in error pleaded not guilty, and then interposed a motion asking for a change of venue, which the trial court overruled, to which ruling of the court the plaintiff in error excepted.

The case then, on March 10, 1931, proceeded to trial upon the issues joined. Upon the conclusion of the opening statement to the jury by the prosecuting attorney, the attorneys for plaintiff in error filed an objection to the indictment and to the opening statement of the prosecuting attorney, and also filed a motion to exclude all testimony of the state pertaining to the fact that the deceased was a sheriff and was engaged in the discharge of his duties as such sheriff at the time he was shot. This objection and motion were overruled by the trial court, to which ruling the plaintiff in error excepted. Thereupon the trial proceeded. Exceptions were taken during the trial to the admission and rejection of evidence and to the rulings of the court on the admission and rejection of evidence. On the 12th day of March, 1931, the jury returned a verdict finding the defendant, Blanton Balls, guilty of murder in the first degree, and made no recommendation of mercy. After the verdict, motion for a new trial was filed,* also a motion in arrest of judgment. Both these motions were overruled by the trial court. A second and third motion for a new trial, on the ground of newly discovered evidence and other errors, were filed and overruled by the court, to which, rulings of the court the plaintiff in error excepted.

We will consider these questions in the order in which they are presented. First, did the trial court err in refusing to grant a change of venue?

Much evidence and many affidavits were submitted on both sides. The trial court, upon consideration of all the evidence, affidavits and testimony, •decided that a fair trial could and would be given to the defendant in Crawford county, Ohio. As a reviewing court we do not feel able to say that the trial judge erred or that he was guilty of an abuse of discretion in so ruling.

It is true that this tragedy was the cause of much public interest and comment in Crawford county. However, at the trial, the trial court asked all the prospective jurors whether, if selected to sit as triers of the facts in the case they would listen to the evidence as given by the witnesses, and follow the law as the court would give it, in weighing and considering the testimony, without being prejudiced by what had been said or read concerning the tragedy or the defendant on trial. All the jurors answered the court they would decide the case according to the evidence offered at the trial and apply it according to the rules, of law as given by the court, regardless of anything that they might have read or heard concerning the case. If the trial court, hearing and seeing these jurors, believed them, and he evidently did, we as a reviewing court do not feel justified in challenging the correctness of the trial court’s conclusions. In regard to this assignment of error, it is sufficient to say that the opinions of the jurors were not formed from reading or hearing the testimony of witnesses, or conversation with them, but merely from newspaper reports and public rumors. They testified on their voir dire that they would, if selected, render an impartial verdict, and the trial court was evidently of the opinion that they would. As a reviewing court, we could not say that this was an abuse of discretion on the part of the trial court. See McHugh v. State, 42 Ohio St., 154, and Doll v. State, 45 Ohio St., 445, 15 N. E., 293.

- The next question presented, “the sufficiency of the evidence and error of the trial court in the admission of evidence as to the official capacity of George Davenport,” goes to the sufficiency of the indictment. In other words, does the indictment charge the crime of murder in the first degree?

We find the Supreme Court has on at least one occasion emphatically expressed its interpretation of Section 12402-1 of the General Code.

Counsel for plaintiff in error maintain that murder in the first degree is not charged in this indictment, and therefore the opening statement of the prosecuting attorney to the jury was prejudicial. The objection on the part of plaintiff in error to the indictment does not charge a defect in the indictment, but the claim is that it does not charge the crime of murder in the first degree, but does charge the crime of shooting with intent to kill or assault with intent to kill.

This indictment, as has been heretofore stated, is drawn under Section 12402-1 of the General Code, which provides:

“Whoever purposely and wilfully kills a sheriff * * * in the discharge of his duties, is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy. ’ ’

The validity of this section, together with the sufficiency of an indictment drawn thereunder, came before the Supreme Court in the case of Holt v. State, 107 Ohio St., 307, 140 N. E., 349, Atkins v. State, 115 Ohio St., 542, 155 N. E., 189, and Freeman v. State, 119 Ohio St., 250, 163 N. E., 202. According to these holdings this court is of the opinion that the indictment correctly and sufficiently charges the crime of murder in the first degree under this section of the statute, and the court in Holt v. State, 107 Ohio St., 307, 140 N. E., 349, supra, held that this section of the statute is not contrary to the provisions of Article I, Section 9, and Article II, Section 26, of the Constitution of Ohio. According.to these holdings, this court is of the opinion that the indictment correctly and sufficiently charges the crime of murder in the first degree under this section of the statute.

The indictment sufficiently charges the crime of murder in the first degree under Section 12402-1, General Code of Ohio, by use of the following words:

“The jurors of the Grand Jury of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present that Walter Ralls, Blanton Ralls and Elijah Ralls late of said county, on the 23rd day of January in the year of our Lord one thousand nine hundred and thirty-one at the county of Crawford aforesaid, with force and arms at the county of Crawford, and State of Ohio, aforesaid, in and upon one George Davenport, a sheriff of Crawford county, Ohio, then and there being, and whilst the said George Davenport, as a sheriff aforesaid, was engaged in the discharge of his duties as a sheriff as aforesaid, did make an assault in a menacing manner, with a certain shot gun then and there loaded and charged with gunpowder and leaden shot, which said shot gun, they, the said Walter Ralls, Blanton Ralls and Elijah Ralls, then and there had in their joint possession and control, and then and there unlawfully, purposely and wilfully did discharge and shoot off to, against and upon the said George Davenport, a sheriff as aforesaid, whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, with the intent the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, unlawfully and purposely to kill and murder; and that the said Walter Ralls, Blanton Ralls and Elijah Ralls, with the leaden shot aforesaid so as aforesaid by them, the said Walter Ralls, Blanton Ralls and Elijah Ralls, by force of the gunpowder aforesaid, then; and there discharged and shot out of the shot gun aforesaid, then and there unlawfully, purposely and wilfully did him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, strike, penetrate and wound, with the intent him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, unlawfully, purposely and wilfully to kill and murder, then and there giving to him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid in the abdomen of the body of him, the said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, a mortal wound of which said mortal wound the' said George Davenport, a sheriff as aforesaid, and whilst the said George Davenport was engaged in the discharge of his duties as a sheriff as aforesaid, then and there died. Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The next ground of error complained of was that the trial court erred in not granting a new trial because of newly discovered evidence. There is nothing in the record, in our opinion, that warrants this claim or contention.

The admissions and confessions of Blanton Ralls were offered in evidence, and this written confession is not contradicted by his testimony- at the trial, but is supported in most particulars.

This statement, together with his testimony at the trial, showed that Blanton Ralls had participated in the crime of burglary, and that the sheriff and his aides and the local police officers of Crestline were trying to apprehend "Walter Ralls, a confederate of Blanton Ralls, for this crime of burglary; that a conspiracy was entered into between Walter Ralls, Blanton Ralls and Elijah Ralls to fight the officers of the law who were trying to apprehend the burglars ; that, in furtherance of this conspiracy to resist the officers of the law they armed themselves with a revolver, a rifle and a shotgun for the express purpose of resisting arrest and fighting off the officers of the law; and that in pursuance of this agreement and in carrying out this plan, the sheriff was shot, from the effects of which he died.

This admission, both in his statement and his evidence offered at the trial, brings this case within the section of the statute under which this indictment is drafted. It in fact admits the guilt of all the parties participating in the conspiracy. If all the other evidence were disregarded, the jury would be warranted and justified in arriving at the verdict and conclusion it did, upon this statement and testimony of Blanton Ralls.

When two or more persons conspire to resist a sheriff in the legal discharge of his official duties, and arm themselves with firearms for the purpose of resisting the officer, and one of the conspirators thereupon shoots and kills the sheriff while in the discharge of his official duties, all the conspirators, under Section 12402-1 of the General Code of Ohio, are equally guilty of murder in the first degree.

A number of other errors are assigned in the motion for new trial and in the brief of counsel. We have carefully investigated the transcript and bill of exceptions and find no error that would warrant or justify a reversal. The finding and judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Justice, P. J., concurs.

Lloyd, J., of the Sixth Appellate District, concurs in the judgment.  