Howell v. State

Citations

• 102 Ohio St. (N.S.) 411

Syllabus

<p>Criminal law — First degree murder — Section 12400, General Code —Recommendation of mercy — Discretion of jury absolute — Considerations warranting recommendation — Charge to jury — Argument to jury — Comment by state’s counsel upon recom* mending mercy.</p> <p>1. Section 12400, General Code, giving the jury discretion to recommend mercy in cases of conviction of first degree murder, confers an absolute discretion which should not be influenced by the court. However, this discretion should be exercised in view of all the facts and circumstances disclosed by the evidence.</p> <p>2. Under his oath in the trial of capital offenses, the juror is required to make true deliverance between the state and the accused. This requires not only his determination whether the accused' is guilty of first degree murder, but whether a recommendation of mercy should be made. Both questions should be determined from the knowledge the juror acquires as a juror and from the facts and circumstances developed or undeveloped by the evidence.</p> <p>3. In such a case it is not error for the court, in its charge, to say to the jury that it was their duty “to consider and determine whether or not, in view of all the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence,” they should or should not make such recommendation.</p> <p>4. In such a case, it is not error for the trial court to permit counsel for the state to argue that a recommendation for mercy should be withheld. (Shelton v. State, ante, 376, followed.)</p>