This action was brought originally in the Cuyahoga Common Pleas by the State against Emmanual Ross under an indictment of first degree murder.

The evidence disclosed that Ross and one Slim Young were attempting to rob the proprietor of a confectionery store and that during this transaction the proprietor was killed by a gun wound, the shot coming from a gun in the possession of Ross.

The court charged the jury in part as follows:

“It is for you to determine from all the evidence in this case whether this defendant, with another man named Slim Young, was engaged in that robbery or attempting to perpetrate a robbery.”

Four forms of verdicts were given the jury by the court none of which were a form for a not guilty verdict and the court instructed that the foreman should sign the particular form of verdict consistent with the finding of the jury.

The judgment of the Common Pleas on the verdict for first degree murder was affirmed by the Appeals.

Ross in the Supreme Court contends:

1. That the court erred in refusing evidence which might show the conduct of the accused associates not causing him to be drunk and thereby not in possession of his normal mind.

2. That the charge of the court improperly relieved the jury of finding that a robbery or attempted robbery took place.

3. That the forms of verdicts given the jury did not permit to return a verdict of not guilty.

4. That the prosecutor engaged in misconduct which prejudiced the accused.