The opinion
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DISSENTING OPINION
By MATTHEWS, J.
I find myself unable to concur in the affimance just announced.
The indictment charged the appellant and two others with having murdered Arthur Sponsel. There were three counts in the indictment, each charging murder in the first degree. In the first count the homicide was alleged to have been committed “unlawfully, purposely, and of deliberate and premeditated malice.” In the second count it was charged that the appellant did unlawfully, purposely, and wilfully kill Arthur Sponsel, a policeman, “while the said Arthur Sponsel was in the discharge of his duties as said policeman.” And in the third count it was alleged that appellant “did unlawfully, purposely, and while attempting to perpetrate a burglary, kill Arthur Sponsel.”
The jury returned a verdict finding the appellant “guilty as he stands charged in the third count of the indictment, and not guilty as he stands charged in the first and second counts of the indictment.”
That Arthur Sponsel was shot and killed at the time and place claimed by the state was not disputed. The appellant signed a written confession and verbally approved, with one slight detail excepted, the written confession of one of his co-defendants. These confessions were admitted in evidence and, I think properly so, notwithstanding the defendant’s contention that they were involuntary. By these confessions, it appeared that the appellant and his co-defendants went out on the night in question to steal, qualified only by references to the defendant’s intoxication, from which an inference might be drawn that he did not have the capacity to entertain a specific criminal intent; they were pursuing that purpose when the decedent interrupted them at the time and place charged in the indictment and bill of parhculars furnished the defendant on his motion by the state. While there was no direct admission that either of the defendants fired the shot that killed Arthur Sponsel, there was the statement in the confession that the appellant fired his pistol in his direction, and that after the shots were fired Sponsel turned and ran. Sponsel’s body was found in a nearby lot under such circumstances as to indicate that he had been murdered. These confessions also clearly indicate that the defendants were engaged in attempting to break and enter the building referred to in the special charge and in the bill of particulars.
In the confession, the appellant referred to the amount of alcoholic liquor which he had drunk right before, and while engaged with his co-defendant on that night, and at the trial, the only evidence introduced by him was on that subject.
At the request of the state, the court instructed the jury before argument that:
“The court instructs you that if you find from the evidence that the defendants, William Hobbs and Charles Vincent Rose, or either of them, pursuant to a conspiracy or common design, entered upon the premises occupied by Mike Vertich in the city of Hamilton, Butler county, Ohio, with intent to break and enter' the building on said premises, and said defendants, or either of them, committed some overt act in attempting to break and enter said building, then the defendant, William Hobbs, would be guilty of attempting to perpetrate a burglary.”
In the general charge given after argument, the court instructed the jury upon the subject of murder in attempting to perpetrate a burglary, but said nothing in further definition or qualification of the definition already given of the crime of attempting to commit a burglary.
By §12438 'GC it is enacted that:
“Whoever in the night season maliciously and forcibly breaks and enters, or attempts to break and enter an uninhabited dwelling house, or a kitchen, smoke-house, shop, office, storehouse, warehouse, malt-house, stillhouse, mill, pottery, factory, water craft, schoolhouse, church or meeting house, barn or stable, railroad car, car factory, station house, hall or other building, or attempts to break and enter an inhabited dwelling house with intent to steal property of any value, or with intent tc commit a felony, shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.”
The title of this section is “Burglary in an uninhabited dwelling and other building.”
It will be observed that the definition by the court entirely omits the element of intent with which the attempt to break and enter is accompanied. The only requirements under the definition were that
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there be an entrance upon the premises with 'intent to break and enter, and that some overt act in attempting to break and enter be committed. If these elements were present, then the court told the jury that the appellant would be guilty of attempting to perpetrate a burglary. And in the general charge the jury was told that if the appellant purposely killed while attempting to perpetrate a burglary, he was guilty of murder in the first negree.
Was this substantial error prejudicial tc the appellant?
That it was error is clear. Proof of all the elements stated in the special charge would not establish an attempt to perpetrate a burglary. That is conceded by the state. But if is said that it is an error of omission, and, therefore, not reversible error in the absence of a specific exception. However at we view it, the record presents more than a mere failure to charge. The court in the special charge assumed to instruct the jury on the elements of an attempt to perpetrate the crime of burglary, and the definition given was erroneous. Now an attempt to commit a crime differs from the crime itself only in the respect that the overt act falls short of the actual commission of the crime. 13 Ohio Jur. 77. Burglary, as defined in Section 13438, General Code, requires the presence of malice and force in the breaking and entry, and in addition the intent to steal or commit a felony. An attempt must also include these mental attitudes. A definition that omits them and characterizes as burglary or an attempt to commit burglary the elements so stated is an incorrect statement of the law. It was an error of commission, properly reserved by a general exception under the statute prior to the taking effect of the present appellate code. By §11560, GC, as amended by the appellate Code, no exception of any sort is necessary to lay the foundation for review whenever the matter has been called to the attention of the court by objection, motion, or otherwise, and the court has ruled thereon, error may be predicated upon erroneous statements contained in the charge not induced by the complaining party, without exception being taken to be charged. While Section 11560, General Cade, is a part. of the Code of Civil procedure, we do not suppose a stricter rule would be imposed upon one seeking a review of a conviction of crime. So I conclude that the error has been properly reserved. Regardless of this, as it was an error of commission, the general exception was sufficient.
But it is said the error was not prejudicial.
When this record is examined I am forced to the conclusion that the principal effort of the appellant was to prove that his mental condition was such that he could not entertain the intent requisite to the crime of murder in the first degree. His evidence was confined to the subject of his intoxication, which was of legal significance only in so far as it tended to prove that he cou’d not entertain the necessary intent. And he was so far successful that the trial court deemed it necessary to instruct the jury on the subject of intoxication. Now this charge defining burglary, so that no proof of intent or malice was necessary, rendered the evidence of intoxication of no avail, so far as ■ concerned reducing the offense below first degree murder and authorized a verdict of guilty of murder in the first degree, upon proof of an intentional killing without proof of any additional animus. This, of course, was substantial error, to the prejudice of the appellant.
Reliance is placed upon State v McCoy, 88 Ohio St, 447, State v Moon, 124 Oh St 465 and State v Huffman, 131 Oh St 27, 5 O.O. 325 , as justification for disregarding this manifest error in defining an attempt to commit a burg’ary. Neither case supports the conclusion. All State v McCoy decides is that a conviction will not be reversed for failure to charge on the included offenses, where no request is made and only a general exception reserved. The court had .charged correctly on the crime of which the accused was convicted.
Ail State v Moon decides is that a failure to instruct the jury that it must not consider -the punishment is not prejudicial tc the defendant.
And State v Huffman is an authority . for the proposition that if the statute defining an offense includes a particular intent, that intent must be alleged and proved. It certainly is not authority to support the entire deletion of a particular intent from the statutory definition of a crime.
(2) The court instructed the jury on the subject of the included offenses of murder in the second degree and manslaughter, but limited his instruction on this subject to the first count. Counsel for appellant requested that similar instructions be given as to the second and third counts, which request was denied,
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to which exception was noted, which distinguishes this case from State v McCoy, supra.
(3) Counsel also requested that appropriate forms of verdict be submitted as tc the second and third counts, which also was refused, to which exception was noted.
I am of the opinion that the court erred in refusing to submit to the jury the issues of the lesser offenses, included in the crimes charged in the second and third counts. Bandy v State, 102 Oh St 384, 131 NE 499 , 21 A.L.R. 594 .
Upon a new trial, the issues presented ■will not be limited in any way by the result of the first trial (Section 13449-4, General Code; 12 Ohio Jur. 673; 8 R.C.L. 162 and 163; Jones v State, 144 Miss. 52 , 109 So. 265 , 59 A.L.R. 1146 ) and, therefore, if the evidence should warrant it, the instructions should cover the lesser degress oi crime included in the crime of murder ir the first degree, charged in each count of the indictment.
I find no other error prejudicial to the appellant.
For these reasons, the judgment should be reversed, and the cause remanded for further proceedings in accordance with law.,