State v. Elfrink
State v. Elfrink
Opinion of the Court
The defendant’s first contention is that the judgment should be reversed and the cause remanded for a retrial. Secondly, he contends that, in the event he is denied a retrial, this court should reduce the degree of the offense from murder in the second degree to manslaughter in the first degree.
Numerous errors are assigned, but only two require discussion by this court.
The first relates to the trial court’s charge to the jury on the lesser included offense of manslaughter. The complaint is that the charge is incomplete and hence erroneous. It reads as follows:
“Whoever unlawfully ldlls another, otherwise than purposely and with deliberate and premeditated malice, and otherwise than purposely and maliciously, and without deliberation and premeditation, is guilty of manslaughter in the first degree. To put it another way, manslaughter in the first degree is the unlawful Mlling by one person of another, either upon a sudden quarrel and upon legal provocation, or unintentionally while the slayer is engaged in the commission of some unlawful act.
“When a person is ldlled under the influence of sudden passion, or in the heat of blood produced by an adequate and reasonable provocation, and before a
The defendant agrees that this statement is correct and contains no error. However, he insists that the trial court should have extended this part of the charge by defining some of the words used, and that failure to do so constituted prejudicial error. But there are at least three difficulties with this contention of the defendant. In the first place, this alleged error clearly is one of omission instead of commission. Second, the record discloses the following colloquy at the conclusion of the charge to the jury:
“The Court (addressing counsel for both parties): Have I omitted anything gentlemen ?
“Mr. Tague: Fine charge.
“Mr. Allen: Fine.
“The Court (addressed to the jury): You may now retire to your jury room and commence your deliberations. When you arrive at a verdict you will notify the bailiff.”
In both civil and criminal cases this court on numerous occasions has commented on the clear duty of counsel under such circumstances to bring to the trial court’s attention any claimed inadequacy and to request that the otherwise correct charge be supplemented by an additional statement. In the first paragraph of the syllabus in the recent controlling decision of this court in the case of State v. Tudor, 154 Ohio St., 249, 95 N. E. (2d), 385, it was held:
“1. Where a trial court gives an instruction in answer to an inquiry of the jury which instruction is in
And, furthermore, the defendant concedes the correctness of the trial court’s charge concerning the offense of which he was convicted — murder in the second degree.
Hence, under these circumstances the defendant is without cause for complaint as to the charge on the subject of manslaughter.
The remaining assignment of error requiring discussion by this court is the contention that there is no evidence in the record warranting the verdict of guilty of murder in the second degree. This assignment necessitates an outline of the pertinent facts.
The victim of the killing was a man named Kilbarger' who then was about 34 years of age, weighed about 180 pounds, was five feet, 11 inches tall and had a disabled right arm. At that time the defendant Elfrink was about 50 years of age, weighed about 165 pounds and was over six feet tall. For some years both were employed as workmen at a private school located on a farm near New Lexington, Ohio. On the farm was a house in which the rooms were occupied by a number of employees of the school. Kilbarger had a home in New Lexington but he also had a room in the farmhouse for his own use while serving as driver of the school bus and as a repair man. The defendant Elfrink ’s home was one of the rooms in the farmhouse, and he was employed as a farm hand. The rooms oc
Under these circumstances can it properly be said that there is no evidence warranting a verdict of guilty of murder in the second degree? This court is of the view that it can not so hold without invading the province of the jury. In the indictment it was charged that Elfrink “unlawfully, purposely and maliciously” killed Kilbarger. The jury so found, and the reason for the verdict is not difficult to find if the jury believed that the defendant fatally shot the unarmed decedent and then fired four more bullets into his head and chest after he was prostrate and dying on the floor.
The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.