Avant v. State ( 1924 )

FARR, J.

Epitomized Opinion

Avant was indicted for murder in the first degree, and convicted without a recommendation of mercy. One Elizabeth Stitle was murdered near a schoolhouse in Youngstown. A few days thereafter the accused was apprehended in McKees Rocks, Pa., and confessed the murder to arresting officers. It was claimed that he later confessed to police officers and the prosecuting attorney. A motion was made upon the trial to require the court to elect whether it would proceed to try the accused upon the first or second count in the indictment, the indictment charging murder and assault with the intent to commit rape, which was overruled. In affirming the conviction, the court of appeals held:

1. Where a person is examined by arresting officers as to his aets and conduct in relation thereto and such person does not claim his privilege, he will be deemed to have testified voluntarily and such examination does not constitute a violation of Sec. 10 Art. 1 of the Ohio Constitution.

Attorneys—David Shermer and P. B. Mulhol-land, for Avant; H. H. Hull, for State of Ohio.

2. Where two closely alleged offenses arise from the same transaction and may be established by sustantially the same evidence, both may be included in separate counts of the same indictment.

3. As the murder appears to have been brutally inflicted, it cannot be' said that the jury’s failure to recommend mercy was improper.

4. It cannot be said that the mind of the accused was so mentally deranged as to operate as an excuse for this offense.

5. Where the instructions given sufficiently covered the only issues upon which there is any evidence, a failure to give other instructions is not error.