Bandy v. State

Citations

• 102 Ohio St. (N.S.) 384

Syllabus

<p>Criminal law — ■First degree murder — Lesser offenses included, when — Evidence governs charge to jury, when — Murder in perpetration of robbery — Section 12400, General Code — Accused entitled to acquittal, when — No evidence of lesser offense —Refusal to instruct jury not error, when.</p> <p>1. Murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter. Whether in an indictment for murder in the first degree in the perpetration of a robbery, a charge is warranted as to murder in the second degree, or manslaughter, depends, however, n'ot merely upon whether or not these are literally included in the formal charge, but upon whether or not there is any evidence tending to support a charge of murder in the second degree, or manslaughter.</p> <p>2. If the indictment charges murder in the first degree in the perpetration of a robbery, under Section 12400, General Code, and there is no evidence tending to support a charge of murder in the second degree, or manslaughter, as distinguished from murder in the first degree, then the defendant, upon the failure of proof as to murder in the first degree, is entitled to an acquittal, and, in such case, it is not error for the court to refuse to charge either murder in the second degree or manslaughter.</p>