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Malone v. State

Supreme Court of Ohio
Feb 26, 1936
200 N.E. 473 (Ohio 1936)


In Malone, the prosecutor asked the defendant whether he had "wrecked a railroad train[,]" "wrecked an engine on the New York Central Belt Line [,]" "held up a man by the point of a gun [,]" "entered a place and burglarized it and took some property [,]" "committed burglary and larceny[,]" and "escaped twice from the Hudson Boys Farm[.]" 200 N.E. at 477.

Summary of this case from State v. Schnabel


No. 25603

Decided February 26, 1936.

Criminal law — Murder in attempting to perpetrate robbery — Section 12400, General Code — Charge to jury — Instruction on offenses less than first degree murder, not required, when — Evidence — Cross-examination of defendant as to other offenses, prejudicial error — Prior proceedings in Juvenile Court — Section 1669, General Code.

1. Where one is indicted and tried for murder in the attempted perpetration of robbery under Section 12400, General Code, no instruction on any lesser grade of homicide than murder in the first degree is requisite or proper when evidence to support the same is lacking. ( Bandy v. State, 102 Ohio St. 384, approved and followed.)

2. It is prejudicial error to permit cross-examination of a defendant in a criminal case as to the commission of offenses prior to the one for which he is being tried, when such inquiry is predicated upon Juvenile Court proceedings against him as a juvenile delinquent, examination of this character being within the prohibitions of Section 1669, General Code.

ERROR to the Court of Appeals of Cuyahoga county.

John Malone, sixteen years old, sent from the Juvenile Court to the Court of Common Pleas by virtue of Section 1681, General Code, was indicted by the grand jury of Cuyahoga county for murder in the first degree. It was charged that on or about the 14th day of November, 1934, he "unlawfully, purposely and while attempting to perpetrate a robbery killed Frank Patlon." This was the only count in the indictment.

On the trial, the state introduced proof that Patlon, connected with a garage and gasoline filling station in the city of Cleveland, died on November 18, 1934, from the effects of a bullet fired from a .25 caliber automatic pistol, which entered his body two inches below the navel and ruptured his intestines. He was shot on the early morning of November 14, 1934, at his place of business.

Called as witnesses by the state were Ralph Nativio, formerly night watchman at a roller rink (presumably a roller skating rink), and two companions, who testified in substance that about two o'clock on the morning of November 14, 1934, defendant, in company with Louis Morano, a minor nineteen years old, came to the roller rink, remained some ten minutes and left. They returned in about half an hour. Defendant at that time had in his possession a .25 caliber Colt automatic pistol, which had been purloined from the rink on the earlier visit (identified as the weapon from which the fatal shot was fired), and said "We shot a man," to which Morano added, "Yes, we are lugens" (meaning dumb-heads). Defendant thereupon retracted his statement with the remark that he was only fooling. One of the witnesses also heard defendant say something about a fight, and two of them testified that as defendant and Morano left the rink for the second time the latter was talking to defendant about money — "Don't forget there is money in it."

On November 22nd or 23rd, 1934, defendant voluntarily surrendered himself to the Cleveland police. For some time he denied any part in the shooting of Patlon, but after being confronted by two of the witnesses from the roller rink, at the Bureau of Criminal Investigation, agreed to confess.

According to the testimony of Detective Sergeant Wolf, who with several others was present, the confession was voluntarily made without inducements to or ill treatment of defendant, around midnight of November 23, 1934, and was accurately written out on a typewriter by a stenographer. Defendant read it and wrote at the end with pen and ink, "I have read this statement and it is true," and signed his name in the presence of two witnesses, who affixed their signatures to the paper.

This written and signed statement, in the usual form containing advice to defendant that anything he might say would be used for or against him, was introduced in evidence by the state and is attached to the bill of exceptions as an exhibit. Such parts as are pertinent are herewith reproduced:

"On the morning of November 14, 1934, Louis Morano and I, planned to rob the filling station on 105th and Woodhill. So I went over to the roller rink at 110th and Woodland, and stole a gun from the roller rink, they didn't know it that I got the gun. Then Louis Morano and I, went down there, I was supposed to go in and ask for gas and then stick him up. Then Louis was supposed to follow me and search the guy. When he bend down to get the can, I said, Stick them up, so he turned around and was going to hit me with the can and I pushed him away. And all the while I was waiting for Louie, then I told him to back up because I was going to search the cash register, so he went to grab a hammer, so I told him to leave it go and come a little closer towards me. And still Louis didn't come yet. So I told him to [come] forward, then he rushed for me and grabbed both of my hands. So I went to cock the automatic and the gun went off, it shot him in the stomach, just then Louis was coming in, then he turned around and we ran away. Then we went to the roller rink and I told Nativio, Ralph Nativio, that I shot a guy. He said, What did you do it for, I said, the guy started to fight with me. So I told him to throw the gun away and he said, he couldn't. He told me to go home. So I went home. I went to sleep."

Next, defendant related his various activities from that time until he surrendered.

The confession continues:

"Q. Where was Louis Morano when you shot the man? A. When I shot the man he was just coming in. * * *

"Q. Just how did you happen to shoot this man? A. When I went to cock the automatic there already was a shell in there and I touched the trigger and it went off, then we ran away.

"Q. Did the man say anything when you shot him? A. No, he just groaned. * * *

"Q. How did you know there was a gun in the roller rink? A. Because I stayed there a lot of nights with Nativio and I knew where he kept the gun."

Defendant took the witness stand in his own behalf, and told an entirely different story from that contained in the purported confession. He testified that he met Louis Morano on Woodland avenue; that they went to the roller rink, arriving about two o'clock, and that Morano stole the automatic pistol. They left the rink together, and Morano suggested that they "stick up" the gasoline filling station at 105th street and Woodland avenue, to which defendant assented. However, they found it closed. Whereupon Morano suggested that they do the same thing at the Patlon station. Defendant flatly refused, because he knew Patlon and Patlon knew him. Morano stated that he was going to rob it any way. The two boys separated. Defendant walked a short distance and heard a shot. Morano then ran up to him and exclaimed, "Johnny, you know what, I just shot a guy," and began to plead with defendant to assume the blame, because he would be treated more leniently on account of his youth. On their way back to the roller rink Morano handed defendant the pistol and offered to pay him $5,000 if he would shoulder responsibility for the crime. When they entered the roller rink, defendant said jokingly to those present, "We shot a guy." The following evening defendant and Morano met again, when defendant definitely consented "to take the blame."

Defendant further testified that the statement he had given the police was false in material parts and was made solely in furtherance of his agreement with Morano to accept responsibility for the shooting. He also stated that what he did tell the police had not been quoted correctly, and that they subjected him to some rough handling to make him talk.

Immediately preceding the general charge, the trial judge instructed the jury, at the request of counsel for defendant:

"If the evidence in this case shows that the shooting of Frank Patlon was accidental, and that Frank Patlon died as a result of that accidental shooting, then it is the duty of the jury to find the defendant not guilty."

The general charge was limited to murder in the first degree. The jury returned a verdict of murder in the first degree, with a recommendation of mercy, upon which defendant was sentenced to imprisonment in the penitentiary for life.

Error was prosecuted by the defendant to the Court of Appeals, which court affirmed the judgment below, and the case is now in the Supreme Court because of the granting of defendant's motion for leave to file a petition in error.

Mr. Blase A. Buonpane, for plaintiff in error.

Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Anthony A. Rutkowski, for defendant in error.

In seeking a reversal, counsel for defendant relies on four grounds of error:

(1) Refusal of the trial court to charge on the grades of homicide less than first degree murder;

(2) Permitting the state to inquire of the defendant on cross-examination as to offenses charged against him in the Juvenile Court and there disposed of;

(3) Failure to instruct the jury adequately on the matter of confessions;

(4) Refusal to charge that if the defendant abandoned participation in the attempted robbery, he was entitled to acquittal.

These questions will be discussed in the order stated.

The indictment was drawn under Section 12400, General Code, reading in part: "Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree * * *."

Because of the peculiar wording of the quoted statute, this court has held that to support a conviction thereunder for a commission of any of the specific crimes therein named, intent or purpose must be shown. In commenting upon this phase of the statute the following language is used in 21 Ohio Jurisprudence, Section 14, pages 47 and 48:

"Unlike the common-law rule and that established in some states, the statute is clear that there must be an intentional killing in this type of murder as well as in the deliberate and premeditated type. However, it is not necessary to show deliberate and premeditated malice in such a killing. The enormity and turpitude of the criminal act in which the offender is engaged at the time supply the place of the deliberate and premeditated malice made an element of the first class. It was the intent of the legislature to make this a substitute for deliberation and premeditation."

It has been contended with much earnestness that where one is indicted and tried under Section 12400, General Code, for murder in the perpetration or attempted perpetration of one of the specific offenses designated in such statute, there must be a conviction as charged or an acquittal, and that an instruction on any lesser crime than murder in the first degree is wholly unauthorized. (Kinkead, J., in State v. Pierce, 24 N. P. (N.S.), 413.)

However, this court is committed to a broader view through a number of decisions covering a period of many years. Such view, relating to that portion of the statute having to do with murder in the commission of one of the felonies enumerated, is fairly stated in 21 Ohio Jurisprudence, Section 14, page 51, as follows:

"Where an indictment charges a defendant with murder under this part of the statute, and no other class of homicide is charged, and the evidence tends to prove no other grade of crime, no instruction should be given to the jury concerning murder in the second degree or manslaughter. Hence, the accused should be convicted of the extreme offense or none at all. However, it has generally been held that, where there is evidence to support a lesser charge, the accused might rightfully be convicted of the lower offense and the court would be justified in charging upon it."

See Section 13448-2, General Code; Robbins v. State, 8 Ohio St. 131; Adams v. State, 29 Ohio St. 412; Dresback v. State, 38 Ohio St. 365; Lindsey v. State, 69 Ohio St. 215, 69 N.E. 126; State v. Schaeffer, 96 Ohio St. 215, 117 N.E. 220, L.R.A. 1918B, 945, Ann. Cas. 1918E, 1137; Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A. L. R., 594. And compare, Freeman v. State, 119 Ohio St. 250, 163 N.E. 202, and Glasscock v. State, 125 Ohio St. 75, 180 N.E. 539.

This brings us to an examination of the evidence in the instant case. Whether defendant was entitled to an instruction on a lesser degree of homicide than murder in the first degree depends largely upon an analysis of his alleged confession, which the state introduced in evidence as a part of its case. Taken as a whole, it is our conclusion that such confession cannot reasonably be said to contain sufficient elements of unintentional conduct or accident to warrant a charge grounded upon that theory.

When the facts of any case disclose that an individual has deliberately gone out to commit robbery with a loaded firearm in his hand, and shoots and kills his victim in that undertaking, it is difficult to conceive that the act was unintentionally done. The guilty person should be held strictly accountable for the atrocity. At least, in such a setting, an unintentional or accidental killing should be fairly presented by the evidence to merit serious attention.

In this case the general charge was correctly limited to murder in the first degree. If the jury believed the evidence adduced by the state, a verdict of guilty in accordance with the indictment was proper. If it believed defendant's account of what transpired, as he gave it on defense, the verdict should have been one of acquittal. There was no middle ground.

Of course, it goes without saying that the trial judge erred in favor of the accused when he charged at the request of counsel that if the shooting was accidental, defendant should be found not guilty. If the element of accident were in the case, the shooting occurred while defendant was engaged in an unlawful act, and could be nothing short of manslaughter. Sections 12404 and 12421, General Code; State v. Schaeffer, supra; Freeman v. State, supra; Wharton's Criminal Law (12th Ed.), Vol. 1, Section 449, pages 687 and 688.

Upon cross-examination of defendant, the record shows the following:

"Q. You wrecked a railroad train once, didn't you?

"Objection by counsel for defendant.

"A. They tried to put the blame on me. * * *"


"The Court: I understand there is an objection to the questioning of defendant about a railroad wreck.

"Mr. Buonpane: There is.

"The Court: I will hear you on your objection.

"Mr. Buonpane: That question, Your Honor, is addressed to some incident or alleged offense which might have taken place, and occurrences, prior to this in question. Wherever it happened, or whatever it was, it was disposed of in Juvenile Court. Now, matters that are treated in Juvenile Court with reference to juvenile offenders are not placed in the same category as offenses or crimes, when committed by juvenile offenders. They are disposed of not as crimes, but as delinquencies.

"Whereupon discussion was had by the Court with counsel for plaintiff [the State] and counsel for defendant.

"And thereupon the Court overruled to [sic] the objection of counsel for defendant; to which ruling of the Court counsel for defendant then and there excepted.

"And thereupon the jury returned to the courtroom.

"Cross Examination resumed by Mr. Hart.

"Q. Isn't it true that some years ago you wrecked a railroad train? A. No, sir.

"Objection by counsel for defendant.

"The Court: Wait until your attorney has time to make his objection and the Court has time to rule.

"Q. Isn't it true you wrecked an engine on the New York Central Belt Line by placing a spike on the track? A. No, sir, I deny that, I was placed on probation any way.

"Q. What is that?

"Mr. Buoupane: I object to each and every one of these questions along that line, and take my exceptions.

"A. I was placed on probation for that and didn't do it.

"Q. Who put you on probation, some judge? A. Yes.

"Q. Isn't it true that in 1931 you held up a man by the point of a gun?

"Objection by counsel for defendant.

"Objection overruled; exception.

"A. Yes, that.

"Motion to strike the answer from the record.

"Motion overruled; exception.

"Q. You did do that? A. Yes.

"Q. Isn't it true that in 1933 you entered a place and burglarized it and took some property? A. No, we didn't have a fair chance on that.

"Q. Isn't it true that in May, 1932, on the 12th day, you committed burglary and larceny? A. No, sir.

"Q. That is not true? A. No, sir.

"Q. Isn't it true you escaped twice from the Hudson Boys Farm? A. Yes.

"Mr. Buonpane: I am objecting to all these questions. I take my exceptions.

"Objection overruled; exception."

We consider the above questions objectionable under the pronouncement of this court in Wagner v. State, 115 Ohio St. 136, 152 N.E. 28, particularly in the light of what is about to be said.

Taking various of the questions and answers together, it is reasonably plain that defendant was being as to matters which had been the subject examined as to matters which had been the subject of proceedings in the Juvenile Court, and in which he had been a principal. This becomes the more convincing when we consider defendant's undisputed testimony that he became sixteen years of age on October 21, 1934, and when we turn to Section 1659, General Code, requiring that "When a minor under the age of eighteen years is arrested on and under any charge, complaint, affidavit, or indictment, whether for a felony or a misdemeanor, such child shall be taken directly before the juvenile judge;" etc.

Section 1669, General Code, provides: "The disposition of, or any order, judgment, or finding against a child under this chapter [Juvenile Court], or any evidence given in any proceeding thereunder, shall not in any civil, criminal or other cause or proceeding whatever, in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases herein against the same child." (Referring to the Juvenile Court.)

The Supreme Court of Louisiana had occasion to interpret a provision similar to our Section 1669, General Code, in the case of State v. Kelly, 169 La. 753, 126 So. 49. That court sustained a ruling by the trial court refusing to permit questions to be propounded to a fourteen year old witness on cross-examination to affect his credibility, based upon charges against him in the Juvenile Court, but containing no mention of such tribunal. Appropriate to the instant case is the following language from the opinion: "The Juvenile Court Act for the parish of Orleans provides that: 'No charges or affidavits made, evidence given or judgment rendered against any child in said court [meaning the Juvenile Court] shall be at any time thereafter admissible against said child in any other proceedings in any other court of the state.' Section 6, Act No. 126, of 1921 (Ex. Sess.) p. 321. * * *

"It is equally within the ban of the provision to use such proceedings, or the facts elicited by such inquiry, against the one proceeded against as a juvenile, in any other court than the juvenile court, whether they be used against him as a defendant or other party litigant, or as merely a witness, to discredit him, in a case by and against another."

There is no difficulty in discerning the purpose underlying the enactment of Section 1669, General Code. Misdeeds of children are not looked upon in the Juvenile Court as crimes carrying conviction, but as delinquencies which the state endeavors to rectify by placing the child under favorable influences and by the employment of other corrective methods.

Motivated by a humanitarian impulse, the law prohibits the use of Juvenile Court proceedings, or of proof developed thereon, against a child in any other court to discredit him or to mark him as one possessing a criminal history. To permit their use for such purpose is contrary to both the letter and spirit of the legislative enactment in question.

Under no circumstances could the state have introduced records from the Juvenile Court proving or tending to prove the commission of the acts implied in the questions asked defendant. Since the foundation upon which the questions in issue rested could not be exposed because of the inhibition of the statute, the questions themselves were barred by the same obstacle.

These observations result in the conclusion that the trial court committed prejudicial error in allowing the state, especially over objection and protest of counsel, to inquire of defendant as to his past behavior, founded upon his Juvenile Court involvements.

We attach small importance to the last two assignments of error. The trial court instructed the jury sufficiently as to confessions, including the manner in which they should be regarded, and the record fails to disclose that counsel requested anything further on this subject.

No charge on the effect of defendant's abandonment of the plan to rob Patlon was requisite or proper. If his testimony were accepted, and it is the only testimony on the point, he never entered upon that project and therefore never abandoned it.

Because of the error found to be prejudicial, the judgments of the Court of Common Pleas and of the Court of Appeals are reversed, and the cause remanded to the former court for further proceedings.

Judgment reversed.


Summaries of

Malone v. State

Supreme Court of Ohio
Feb 26, 1936
200 N.E. 473 (Ohio 1936)

In Malone, the prosecutor asked the defendant whether he had "wrecked a railroad train[,]" "wrecked an engine on the New York Central Belt Line [,]" "held up a man by the point of a gun [,]" "entered a place and burglarized it and took some property [,]" "committed burglary and larceny[,]" and "escaped twice from the Hudson Boys Farm[.]" 200 N.E. at 477.

Summary of this case from State v. Schnabel
Case details for

Malone v. State

Case Details


Court:Supreme Court of Ohio

Date published: Feb 26, 1936


200 N.E. 473 (Ohio 1936)
200 N.E. 473

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