In State v. Fox, 68 Ohio St.2d 53, 428 N.E.2d 410 (1981), 3 defendants were each convicted of attempted murder of a police chief in violation of Ohio Revised Code §§ 2903.02 and 2923.02. At trial the defendants "denied shooting at the [victim police chief's] home."Summary of this case from Mann v. Gray
Decided November 18, 1981.
Criminal law — Attempted murder — Jury instructions — Effect of intoxication on specific intent — Properly refused, when.
Attempted murder, under R.C. 2923.02 and 2903.02, is a specific intent crime, for which evidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the necessary "purpose" to commit murder. ( Nichols v. State, 8 Ohio St. 435, followed.)
APPEAL from the Court of Appeals for Darke County.
Defendants-appellees, Kevin W. Fox, Michael L. Custer and Dennis A. Freeman, were each found guilty by a jury in Darke County upon indictments for the attempted murder of Wallace Rich, Arcanum Chief of Police, a violation of R.C. 2903.02 and 2923.02.
On the evening of August 17, 1979, shots were fired into the home of Chief Rich. Earlier that evening, defendant Freeman had inquired at the Rich home whether the chief was there, Freeman disappearing upon being advised that the chief was upstairs and would be down in a few minutes. A few hours later, and immediately prior to the shooting, the chief's son, Jim, noticed headlights from an approaching automobile and went to a window, where he observed a light green Oldsmobile parked against the curb with what appeared to be a "stick" protruding out of the rear passenger side window. As he stood at the window, the stick pointed in his direction, and Jim observed a "big flash" and heard a blast. The window shattered. A second shot was fired, entering the house through the front door window.
William F. Miller, a patrolman who happened to be next door to the Rich residence, immediately responded upon hearing blasts, observed a green Oldsmobile parked across the street, and followed that auto in his police cruiser to the home of defendant Custer. All three defendants exited the automobile. The patrolman, upon making a visual inspection of the car, viewed a shotgun in the front seat on the passenger side. This gun was removed from the car, at which time the patrolman also observed three expended shotgun shells in the car. Three days later, the three defendants were indicted for the attempted murder of chief Rich.
At trial, defendants denied shooting at the Rich home. Fox and Custer explained that they had been on a hunting trip earlier in the day, and that, later, an unidentified stranger assaulted Custer while the three defendants were drinking beer at the Custer home. A subsequent encounter with the stranger, defendants claimed, culminated in an exchange of gunfire in front of the Rich home. The jury returned guilty verdicts for all defendants, and each was sentenced to a term of imprisonment.
The Court of Appeals reversed the convictions in a split decision, for the sole expressed reason that the trial judge erred in refusing to give a requested instruction on the effect of intoxication on the specific intent required for commission of attempted murder.
The jury instruction which the trial court refused to give reads as follows:
"Voluntary intoxication is not a complete defense to criminal conduct but if the jury finds that the defendants were intoxicated they must consider that fact in relation to the elements charged in the crime and with regard to the defendants' abilities to form intent and purpose as required in the alleged violation.* * * Intoxication may be shown as effecting the existence of intent, premeditation, or deliberation in the commission of a crime. In that class of crimes and offenses which depend upon guilty knowledge, or the coolness and deliberation with which they are perpetrated, intoxication should be submitted to the consideration of the jury. Intoxication is an element to be taken into consideration as showing that state of mind or degree of knowledge. Where a specific intent or knowledge is essential, intoxication may be shown for the purpose of eliminating such element of the offense, or for the purpose of lowering the degree of the offense* * *." (Citations omitted.)
This cause is now before this court upon allowance of a motion for leave to appeal.
Mr. Lee E. Fry, prosecuting attorney, and Mr. Richard M. Howell, for appellant.
Mr. Carl A. Cramer, for appellees.
The common law and statutory rule in American jurisprudence is that voluntary intoxication is not a defense to any crime. Long v. State (1923), 109 Ohio St. 77, 86. An exception to the general rule has developed, where specific intent is a necessary element, that if the intoxication was such as to preclude the formation of such intent, the fact of intoxication may be shown to negative this element. See 8 A.L.R. 3d 1236, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge. In such a case, intoxication, although voluntary, may be considered in determining whether an act was done intentionally or with deliberation or premeditation. State v. French (1961), 171 Ohio St. 501, 502, certiorari denied 366 U.S. 973.
R.C. 2923.02, which in conjunction with R.C. 2903.02 defines the offense of attempt to commit murder, prohibits any person from purposely engaging in conduct which, if successful, would constitute the offense of murder. Thus, the instant offense is a specific intent crime, for which evidence of voluntary intoxication may be taken in order to show defendant was thereby precluded from forming the necessary "purpose" to commit murder. The trial court correctly permitted introduction of evidence of defendants' intoxication on the evening of August 17, 1979.
R.C. 2903.02, provides as follows:
"(A) No person shall purposely cause the death of another.
"(B) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code."
R.C. 2923.02 reads, in part, as follows:
"(A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense."
Relevant to the application of these two statutes is R.C. 2901.22, which in part provides:
"(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature."
Given the admissibility of evidence of intoxication, the issue is whether the trial court erred by refusing to go further and charge the jury on the possibility intoxication negated formation of the specific intent to attempt murder.
This court first addressed this precise issue in Nichols v. State (1858), 8 Ohio St. 435. In that case Caleb Nichols was tried by jury for attempted murder. On appeal, Nichols claimed, among other errors, the failure of the trial court to instruct that drunkenness should be considered by the jury in determining the existence of the malicious intent charged. After "somewhat anxious deliberation," we concluded that "a proper regard to the public safety in the practical administration of criminal justice" mandated introduction of the evidence of intoxication, "to show that the accused did not at the time intend to do the act which he did do." Nichols, supra, at 439. But we refused to require a jury instruction to be given on the question, stating as follows:
The indictment contained two counts: the first, for maliciously stabbing, with intent to kill, one Zachariah Riley; and the other, for maliciously stabbing, with intent to wound, the said Riley. Nichols, supra, at 436.
"* * * [W]hen we admit evidence of intoxication to rebut * * * a charge of deliberation and premeditation, * * * we think we have gone far enough; and that, looking to the practical administration of the criminal law, a due regard to the public safety requires that the mere question of malice should be determined by the circumstances of the case, aside from the fact of intoxication, as in other cases." Id.
This court's denial of a right to a jury charge in Nichols was based on a deep seated distrust of the reliability of such evidence:
"Intoxication is easily simulated. It is often voluntarily induced for the sole purpose of nerving a wicked heart to the firmness requisite for the commission of a crime soberly premeditated, or as an excuse for such crime." Id. Rather than impose a strict rule of criminal procedure, we left the trial judge with discretion to handle the evidence and submit it to the jurors in the appropriate manner.
Subsequent cases decided by this court have recognized the appropriateness of a special jury charge on the effect of intoxication on formation of intent when that issue is properly raised by the evidence. But this court has never found it necessary to promulgate a rule to regulate judges in this matter. Nor is this court well suited to make such a rule. This matter is best left to the discretion of the experienced trial judge.
The evidence in the case sub judice that the defendants were intoxicated was coupled with extensive evidence arguably incompatible with such a condition. Defendants testified in detail to the events leading up to the shooting at chief Rich's home. Nor did any defendant testify that at the time of the offense any of them were influenced by alcohol in their actions, although they did testify to consuming more than two six-packs of beer among themselves. But taking the evidence as a whole, we cannot say it was error for the trial judge to refuse to instruct on intoxication. The trial judge had a better opportunity to observe the demeanor and physical characteristics of the defendants, and was inherently better qualified than an appellate court to decide whether sufficient evidence was introduced to charge on the issue here. Out of a concern for the "practical administration of justice," we conclude, with the trial judge here, that not enough evidence was introduced to warrant the requested instruction.
Accordingly, the judgment of the Court of Appeals is reversed.
CELEBREZZE, C.J., W. BROWN, LOCHER and KRUPANSKY, JJ., concur.
SWEENEY and HOLMES, JJ., concur in the judgment.