affirming intermediate court's modifying first-degree murder to manslaughterSummary of this case from People v. Hoffmeister
Decided May 7, 1941.
Court of Appeals — Concurrence of judges — Murder in first degree — Two judges may modify judgment by reducing conviction to lesser offense — In absence of evidence establishing first degree murder — But two judges may not reverse on weight of evidence — Section 6, Article IV, Constitution.
1. If there is no evidence to establish beyond a reasonable doubt the guilt of a defendant of murder in the first degree, the Court of Appeals on review, two judges concurring, may modify and affirm a conviction of such defendant by reducing such conviction from murder in the first degree to the appropriate lesser included offense.
2. By virtue of Section 6 of Article IV of the Constitution, the Court of Appeals, two judges concurring, may not reverse on the weight of the evidence, a conviction by the trial court of a defendant of murder in the first degree, but may, if the record warrants, modify and affirm such conviction by reducing it from murder in the first degree to manslaughter.
APPEAL from the Court of Appeals of Cuyahoga county.
Angelo Porello, appellee herein, was indicted for first degree murder, he having, at his own place of business on Woodland avenue, Cleveland, shot and killed Joseph Smeraldi on the night of November 11, 1939. A jury was waived and the case heard by three judges of the Common Pleas Court of Cuyahoga county. Porello admitted the killing but claimed that he acted in self-defense. He was found guilty of murder in the first degree without recommendation of mercy and was sentenced to electrocution.
A motion for new trial was filed on the ground, among others, that the verdict was not sustained by the evidence and especially was not sustained by sufficient evidence to justify the verdict of guilty of murder in the first degree. The motion for new trial being overruled, an appeal was taken to the Court of Appeals where substantially the same alleged errors were urged.
The Court of Appeals, two judges concurring, modified the judgment of the Court of Common Pleas from first degree murder to manslaughter and affirmed the judgment as modified with a remand for resentence of the appellee.
The state filed an appeal as of right to this court, and also filed a motion for leave to appeal. The appeal as of right was dismissed but the motion for leave to appeal was allowed by this court. The appellee filed a cross-appeal claiming that the Court of Appeals erred in not reversing the judgment of the Common Pleas Court and entering a final judgment of acquittal or remanding the cause for a new trial.
Angelo Porello and Joseph Smeraldi had been partners in 1936 in operating an illegal liquor still. Porello had served time for the violation of the liquor laws, and since his release had made his home and operated a small retail store at 2016 Woodland avenue, where the killing took place. Smeraldi also had a criminal record, having been arrested and convicted for stealing an automobile, and having been sentenced to the Mansfield Reformatory, from which he had been released only a few weeks before he was killed. On one or more occasions before the evening of the killing, violent quarrels had taken place between Porello and Smeraldi, during which Smeraldi had threatened the life of Porello.
The only living eyewitness to the killing was the defendant Porello, and the pertinent facts appearing in the record are largely furnished by his testimony at the trial. His testimony as summarized by the Court, of Appeals in its opinion is as follows:
"On the evening of November 11, 1939, a little before 11 p. m., an automobile stopped in front of his [Porello's] home and store * * *. Smeraldi got out of the car and entered the storeroom. On entering, Smeraldi said to the defendant, 'I be waiting for you I find you alone.' Also, 'I want you two things to do, one thing, don't talking about me, and another thing, pull all money you got in your pocket and hand to me.'
"The defendant was standing behind the counter and on the counter there was a pair of shears which when closing at night defendant would usually wedge into a staple so as to securely lock the door. Smeraldi grabbed the shears and said to the defendant, 'Don't make no move because I will going to put this, I going to stick this in your heart and I make it come out from your back.'
"Defendant drew $25 in five dollar bills out of his pocket which he handed to Smeraldi. Smeraldi said that he wanted the 'big bill.' Defendant answered, 'I got, Mr. Joe, little more change in the side show case. If you want me to get it, I get it for you.' The defendant then opened the show case where there was an automatic revolver. He picked up the revolver and said to Smeraldi, 'This is the big bill.'
"Smeraldi had 'scissors in his hand and another hand he had alone. * * * I was scared that the hand he got alone I don't know what he got and I figure this fellow going to shoot me.' The defendant then shot Smeraldi, firing seven shots in all, of which at least three would have been fatal.
"When the police arrived Smeraldi was lying on the floor dead, with a pair of scissors in one hand. The five dollar bills were also on the floor. A photograph of Smeraldi lying on the floor, showing the shears in his right hand, was taken by the police * * *.
"The defendant claims that he killed Smeraldi in self-defense. He contends that Smeraldi entered the building * * * for the purpose of committing a robbery, and that the defendant in resisting robbery, believing himself in imminent danger of his life, shot Smeraldi.
"The defendant offered evidence that Smeraldi was out of funds; that he had no money on his person when he was killed and that while in prison he had stated to others that the defendant owed him a substantial sum of money from the time they operated a still together and that he intended to get it when he got out of prison. * * *
"At the time of the killing, defendant was behind a counter and Smeraldi was in front of it. At the hearing counsel for defendant contended that defendant was placed in imminent peril from the shears which Smeraldi had seized. However, an examination of the record discloses that the defendant did not claim at the trial that he believed himself in danger because of the shears. Defendant testified that he 'wasn't scared with the scissors. I was scared that the hand he got alone. I don't know what he got and I figure this fellow going to shoot me.' As to the shooting, defendant testified that 'I thought he pulled out a gun and my finger was in the trigger and shoot the rest in the gun.' * * *
"The state claims that Smeraldi did not have the shears in his hand when he was shot but that after the shooting and before calling the police, the defendant placed the shears in Smeraldi's hand in the position shown by the photograph, to bolster a claim that the shooting was in self-defense."
Mr. Frank T. Cullitan, prosecuting attorney, Mr. Neil W. McGill and Mr. John P. Butler, for appellant.
Mr. William E. Minshall, Mr. Elmer E. McNulty and Mr. William L. Brooker, for appellee.
The question before this court is: May the Court of Appeals in a homicide case, two judges concurring, modify a conviction of murder in the first degree entered by the trial court and reduce the conviction to manslaughter, where the court, two judges concurring, rejects the claim of self-defense but finds that the record does not show premeditation requisite for murder in the first degree?
The answer to this question may depend upon the determination of a second question, viz.: Is there any evidence in the record which would establish beyond a reasonable doubt that the appellee was guilty of murder in the first degree; and if there is no such evidence, can the Court of Appeals by the concurrence of two judges modify and reduce the conviction from murder in the first degree to manslaughter?
While the appeal of the state as a matter of right was dismissed, nevertheless, the admission of the case to this court for review on the motion for leave to appeal, admitted it for all purposes, and the constitutional question sought to be raised by the state is now before this court for decision.
Section 6 of Article IV of the Constitution provides that, "The Courts of Appeals shall have * * * jurisdiction * * * to review, affirm, modify or reverse the judgments of the Court of Common Pleas * * *. No judgment of a Court of Common Pleas * * * shall be reversed except by the concurrence of all the judges of the Court of Appeals on the weight of the evidence, and by a majority of such Court of Appeals upon other questions." (Italics ours.)
The Ohio Criminal Code (Section 13459-6, General Code) provides that "Upon the hearing of the appeal the court may affirm the judgment or reverse it, in whole or in part, or modify it as provided in section 1, paragraph 4, of the chapter entitled, 'New Trials, Etc.' * * *." (Italics ours.) Section 1, paragraph 4 of the chapter entitled "New Trials, Etc.," being Section 13449-1, General Code, paragraph 4, authorizes a new trial on the ground:
"That the verdict is not sustained by sufficient evidence, or is contrary to law; but if the evidence shows the defendant to be not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and pass sentence on such verdict or finding as modified, and this power shall extend to any court to which the cause may be taken by proceedings in error."
The state claims that regardless of the language employed in the entry of the court, the action of the Court of Appeals in this case was an attempt to reverse the judgment of the Common Pleas Court on the weight of the evidence by the concurrence of only two judges, and that such action was erroneous and illegal. If the action of the court in this case amounts to a reversal, it would be obliged to remand for a new trial. The entry approved by the court provided for a modification and affirmance which is authorized under the Constitution and statute, since the crime of murder in the first degree includes the lesser crime of manslaughter; and by strict construction of the constitutional language, the court, by the concurrence of two judges, could modify and affirm, even though it could not reverse.
Furthermore, if there was no evidence to sustain the finding and judgment of the Common Pleas Court as to murder in the first degree, then the Court of Appeals could reverse that judgment on the concurrence of two of its members. Porter, Exr., v. Lerch, 129 Ohio St. 47, 62, 193 N.E. 766.
The Court of Appeals readily, and this court thinks correctly, determined that the appellee's claim of self-defense was not established. The Court of Appeals also took the position that there was no evidence to sustain the essential elements of the crime of murder in the first degree and in this we concur. The Court of Appeals in the course of its opinion says:
"There is surprisingly little attempt to introduce any evidence in the record tending to show that the killing of Smeraldi was premeditated * * *. When the prosecutor at the hearing in this court [Court of Appeals] was asked for what reason in his opinion did Smeraldi enter defendant's store and home, he answered frankly, 'he may have gone there to get money.' We think from the evidence in this case that this was most likely Smeraldi's purpose and what is more likely than that a quarrel developed, old animosities were revived and that the killing was in hot blood."
The finding of the court on this question, as expressed in its opinion, is as follows:
"It is the conclusion of this court that defendant failed in his proof that the killing was in self-defense. The majority of the court are convinced that there is no evidence in this record which is not consistent, in fact is not more consistent with the conclusion that the killing of Smeraldi followed as a result of a quarrel, probably following a demand for money by Smeraldi, than with the view that this was a case of premeditated murder. No proof was offered, in our opinion, that justified the court in finding beyond a reasonable doubt that defendant was guilty of murder in the first degree."
We think the judgment of the Court of Appeals should be affirmed.
TURNER, ZIMMERMAN and BETTMAN, JJ., concur.
WEYGANDT, C.J., and WILLIAMS, J., concur in the syllabus but dissent from the judgment.
MATTHIAS, J., not participating.