Collins v. State , 16 Ohio Law. Abs. 418 ( 1934 )

OPINION

By WASHBURN, PJ.

Buddy Collins was charged with shooting with intent to wound. The trial resulted in a conviction of the crime charged.

It is urged that the trial court erred in not complying with the request of coun,sel for Collins by charging the jury that Colr lins might be found not guilty of shooting with intent to wound but guilty of assault or of assault and battery.

The court charged that Collins could “not be convicted of shooting with intent to wound, notwithstanding he may have shot Arthur Green, if at the time of the shooting he was acting in self-defense.”

There is no objection made to any part of the charge on self-defense, but it is claimed that because the court used the following language — “every man may repel force by force, even to the extent of taking-life, in the defense of his person, his home, or his property” — the court was bound to charge on assault and battery as an included offense, especially as there was evidence tending to support a charge of said lesser offense.

We do not think that the part of the charge above referred to is of any significance in the determination of whether the court should have charged upon said lesser offense in this case.

We think that if there was some evidence tending to support said lesser offense, it was the duty of the court to charge thereon if requested to do so, but that if there was no such evidence, the trial court was right in refusing such request.

Windle v State, 102 Oh St 439.

We can find no such evidence in the record, in this case. It seems to us that Collins, who admitted that he intentionally .shot Green, was guilty of shooting with intent to wound, or that he was not guilty of any offense because he shot in self-defense.

The jury found that he did not shoot in self-defense, and we agree with that finding; and we do not see how he could have been properly found guilty of any lesser offense.

Judgment affirmed.

FUNK and STEVENS, JJ, concur in judgment.