State v. Milam ( 1959 )

The defendant, Dallas Edward Milam, with James Wilson Davis and Robert Lee Lyons, was jointly indicted on three counts, each of murder in the first degree, in connection with the shooting of Edward Lentz, a lieutenant on the Cleveland police force.

Milam waived a jury trial and elected to be tried before three judges, who, upon trial, adjudged him guilty of murder in the first degree as to counts one and two, with a recommendation of mercy as to each count. Count one charged the killing of a person while in the perpetration of a robbery, and count two the killing of a policeman while in the discharge of his duties. Milam was found not guilty as to count three which charged the killing of a person purposely and with deliberate and premeditated malice. Motion for new trial, for judgment notwithstanding the verdict, and mitigation were all overruled, and the defendant was sentenced for life to the Ohio Penitentiary. The appeal here is on questions of law from the judgment entered in the Common Pleas Court of Cuyahoga County. The record discloses no substantial dispute as to the salient facts.

Milam was an eighteen-year-old white male raised in a family of nine children in West Virginia, where he obtained eleven years of schooling. He came to Cleveland in August 1957, to live with his older unmarried brother and obtained employment at the Ford Motor Company on the three to eleven p. m. shift. He drove a 1950 Cadillac automobile which he had acquired from a friend in Akron by taking over the payment of the balance of $522 owing on it. At the time of the occurrences involved herein, he and his brother were living at 1516 East 55th Street.

Early on the morning of Thursday, December 6, 1957, he met one James Davis, a thirty-year-old colored male, at a tavern near his home. After the tavern closed at 2:30 a. m., Davis accosted him on the street, and got him to go to the home of Alonzo and Ruth Buchanan, colored folk, to engage in some after hours drinking. While there, he and Davis entered into a poker game with the Buchanans, in which endeavor Milam lost some $37. Davis had an arrangement with Buchanan to get a percentage of winnings from players he brought to the place. In the early morning of December 7, 1957, Davis again took Milam to the Buchanans. Upon this occasion, he watched a poker game in progress and drank beer.

At 3:30 a. m. on Monday, December 9, 1957, Davis, in the company of one Robert Lyons, a total stranger to Milam, awakened Milam to tell him that he and Lyons had discovered that the Buchanans played poker with marked cards and asked Milam to dress and accompany them to the Buchanans to recover the monies that each had been cheated out of by the Buchanans. Milam, in answer to this request, said that he did not want any trouble and did not want to go, but upon the assurance of Davis over and over again that there would be no trouble and that there was nothing to worry about, was persuaded to go, saying: "Well, if you're sure that there's going to be no trouble I will go with you." Milam thereupon dressed, went with Davis and Lyons to his automobile in a parking lot nearby, and drove to the home of the Buchanans. Upon stopping in front of the Buchanan home, Milam was disinclined to enter with them but did so upon Davis' insistence again that there would be no trouble or violence.

Upon entering, they met Buchanan and his wife and the five of them assembled in the basement room. After some talk about marked cards and the return of the money Milam had lost, Davis suddenly and unexpectedly drew a .38 caliber revolver from his waist, and, pointing it at Alonzo Buchanan, said, "This is it." "This is for real." and demanded to know where the money was. Buchanan said he would send his wife Ruth to get it but Davis declined this offer and demanded that they inform him where it was. When told that it was under the bed in a bag, Davis sent Lyons up, who returned with a bag of money containing $420. The Buchanans were then ordered by Davis to lie on the floor, face down, and were each tied up with strips torn from a bedspread on the couch. The Buchanans were then relieved of the valuables on their persons consisting of two watches, a ring and cash; the upstairs was searched where three revolvers were obtained; and the three visitors drove off with Milam at the wheel and Davis and Lyons alongside him in the front seat.

They had proceeded a short distance when a police car sounded its siren directly to the rear of their automobile. Milam testified that Davis or Lyons said to him, "Don't stop," and that he said, "No, I'm going to stop." which he did right there in the middle of the street, since cars were parked on both sides of the street. Within seconds, Lieutenant Edward Lentz of the Cleveland Police Department appeared at the driver's side of the Cadillac and asked them what was going on and informed them that a man had complained to him that he had been robbed by them. Lyons, answering for the three of them, said that they had not robbed anybody but had only taken what belonged to them. Lieutenant Lentz instructed them to stay in the automobile and returned to the police car where he used the radio telephone. He then returned to the Cadillac, opened the left front door, removed the car keys, and told them to stay in the automobile and according to Milam told them that they were under arrest. Lyons at the time tried to get out of the automobile and was told by the lieutenant to remain, which he did. Then Buchanan came to the Cadillac and, pointing to them, said, "Those are the guys that robbed me." Upon that remark, Davis and Lyons started shouting, during which Lyons again tried to get out and again was ordered to remain in the car by Lieutenant Lentz. While Lentz was reaching for the bag of money, Lyons got out of the automobile with a .38 caliber revolver in his hand and rushed to the rear to confront Buchanan. Lentz, standing in the open door with the bag in his hand, turned toward Lyons and ordered him to get back into the Cadillac. Davis, at that moment, motioned for Milam to join him in escaping. Milam declined. Lyons, who was aiming his gun at Buchanan when accosted by Lentz, shifted his aim at Lentz and fired, the pellet striking Lentz in the forehead above the right eye. Lyons directed another shot at Lentz as he lay on the ground. Davis ran off during this commotion. Lyons and Buchanan ran in opposite directions, Buchanan toward his home. Milam remained at the wheel in his automobile. He was found there some minutes afterwards by other police officers, crying.

Counsel for the defendant, in their brief, claim that the record clearly shows eleven reasons why Milam is innocent of these charges. Rephrased, they are:

1. That the defendant never intended to rob the Buchanans and so did not engage in the perpetration of a robbery;

2. That the defendant never entered into any conspiracy to commit a robbery;

3. That the defendant did not aid or abet Davis or Lyons in the robbery;

4. That the defendant informed Davis and Lyons beforehand that he would not be a party to any violence and that he consequently did not enter into any conspiracy to commit an unlawful act;

5. That the defendant did nothing to aid, abet or assist or encourage Davis or Lyons other than those things which he was forced to do out of fear for his own safety and welfare and under duress;

6. That the defendant withdrew from any connection with Davis and Lyons and repented of any wrongdoing when he entered the escape car with them, and that he therefore could not be held accountable for what happened thereafter;

7. That the defendant refused to aid or assist Davis and Lyons in flight and stopped the escape car although urged to go on, thus giving notice to them that they could not look to him for aid or encouragement thereafter;

8. That the defendant completely submitted to arrest and as a consequence was not responsible for what happened thereafter;

9. That Davis and Lyons saw that the defendant had submitted to the control of the police officer and that they all were under the control of such officer and so knew that they could not look further for aid or encouragement from the defendant;

10. That when Davis and Lyons left the escape car, they knew that the defendant could not be counted upon and were on their own for what occurred thereafter;

11. That upon the three in the escape car obeying the lieutenant's order to remain in the car after stopping, the robbery had come to an end and whatever happened thereafter was apart from the robbery and the sole responsibility of those engaged in such happening.

The state maintains that the evidence submitted at the trial of this case proved the defendant guilty beyond a reasonable doubt; that the evidence clearly disclosed that Milam voluntarily joined and became part of the conspiracy and common purpose to rob the Buchanans; that under Ohio law, flight immediately ensuing upon the commission of a robbery with no break in the chain of events is part of the res gestae of the crime perpetrated, and cites State v. Habig, 106 Ohio St. 151,140 N.E. 195, as authority; that the principle of law enunciated in the Habig case applies to the facts in this case; and that the defendant by actively participating in the conspiracy set a force in motion that carries responsibility with it for all wrongful acts resulting from such activity unless he had voluntarily and effectively withdrawn in time to give his fellow conspirators a chance to follow his good example, and that even the intervention of an arrest would not exonerate him from any acts reasonably to be committed in carrying out the conspiracy.

Milam, in court as well as in his statement to the police, admitted participating in the robbery. He pleaded duress as his defense. This, in our opinion, was the paramount issue in the case.

Duress was recognized as a defense in criminal cases by the common law of England. In Rex v. Crutchley, tried in the Court of King's Bench, 24 English Common Law Reports, 244, 5 Car. P., 133, 172 Eng. Rep. Reprint, 909, duress was pleaded as a defense by the defendant. The evidence was that the defendant was seen striking a threshing machine a blow with a sledge hammer as a member of a mob. He, then, was permitted to testify that he with several others was compelled to go with the mob and that he and these several others "agreed to run away from the mob the first opportunity." The evidence was that the defendant left the mob at the first opportunity. The verdict was not guilty.

The defense of duress in criminal cases has found expression in those states of the United States which have had occasion to consider it.

It is stated in paragraph one of the syllabus in Nall v.Commonwealth, 208 Ky. 700, 271 S.W. 1059:

"The law will excuse a person when acting under coercion or compulsion for committing most, if not all, crimes, except taking life of an innocent person."

See State v. Moretti, 66 Wn. 537, 120 P. 102; Ross v.State, 169 Ind. 388, 82 N.E. 781; Beal v. State, 72 Ga. 200;State v. Nargashian, 26 R.I. 299, 58 A. 953; People v.Repke, 103 Mich. 459, 61 N.W. 861; State v. St. Clair (Mo.),262 S.W.2d 25, 40 A. L. R. (2d), 903; Respublica v.McCarty, 2 U.S. (2 Dall.), 86, 1 L. Ed., 300; People v.White, 137 Cal.App. 467, 30 P.2d 555; People v.Martin, 13 Cal.App. 96, 108 P. 1034; United States v.Haskell and Francois (U.S.C.C.A.), 4 Wn. C. C., 402; 8 R. C. L., 125, Section 100; 16 Corpus Juris, 91, Section 59; Law ofCrimes, Clark Marshall (4 Ed), 107, Section 71; 106 Am. St. Rep., 721; 4 Va. Law Review, 519.

The generally accepted rule is stated in 40 A. L. R. (2d), at page 910:

"It has been stated generally that in order to constitute a defense to a criminal charge other than taking the life of an innocent person, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done."

The Supreme Court of Ohio had occasion to state the law with respect to the defense of duress in a criminal case in State v.Sappienza, 84 Ohio St. 63, 95 N.E. 381, the syllabus reading:

"Where, in the trial of an indictment for robbery, it is proved beyond a reasonable doubt, that the defendant was present at the time and place of the crime and participated in the acts which constituted the robbery, and the defendant, for his defense, interposes a plea of duress, the burden is not on the state to disprove such plea, but is on the defendant to maintain his plea by a preponderance of the evidence."

See 15 Ohio Jurisprudence (2d), 494, Section 323.

Since the defendant in the instant case conceded participation in the robbery, the burden rested with him to maintain his plea of duress by a preponderance of the evidence.

The record shows that the defendant was reluctant to go with Davis and Lyons to the Buchanan home for the purpose of getting back the money he had been cheated out of, and went only when assured that there would be no trouble or violence.

The trial court in its conclusions of fact stated:

"1. It is clear to the court that the evidence does not disclose beyond a reasonable doubt that the defendant, Dallas Milam went to the Buchanan home with Davis and Lyons on the morning of December 9, with any preconceived plan or design or conspiracy to precipitate a robbery."

It is our opinion and we hold that the recordconclusively discloses that the defendant was not a party to any "preconceived plan or design or conspiracy to precipitate a robbery."

The record shows also that when Davis pointed the revolver at the Buchanans, Milam was sitting about a foot from Alonzo Buchanan, who was standing, and that he then got permission from Davis to stand back of him. Davis ordered the Buchanans to lie on the floor face down. He then ordered Lyons to tear a bedsheet on the couch into strips and with these, he and Lyons tied up the Buchanans. Milam testified that he in no way helped, Mrs. Buchanan, however, testified that she saw Milam hand some of the strips to Lyons and that Milam assisted Davis in tying her up. Davis said that Milam merely untied a strip that was choking her. Milam said he only said she was tied too tightly. The record clearly shows that the following took place:

Davis and Lyons took the valuables from the Buchanans without any help from Milam. Davis ordered Lyons to go upstairs to search for the money, and Lyons returned with the bag of money. Lyons then again went up to procure a .38 caliber revolver, which Buchanan said was in the buffet drawer, and returned with this pistol and a strong box which, however, contained no money. Davis then decided to have the three go upstairs to search for some $100 bills which he believed had been hidden upstairs by Buchanan, but, before they left the basement room, Davis told Milam to take a drink of whisky, which Milam did. Then Davis told Milam to carry the bottle of whisky, which Milam did. The three went upstairs to look for the $100 bills and the drawers of the bureaus were searched and a mattress was lifted up under which two revolvers were found, a .38 caliber and a .32 caliber. Lyons told Milam to take the .38 caliber revolver, which Milam refused. Lyons then handed Milam the .32 caliber revolver, which Milam took and put in his pocket. Davis then handed Milam the bag of money, which he put into another pocket, and the three then left the home and got into Milam's automobile.

With respect to the upstairs scene, Milam testified that he did not engage in any searching of the drawers and took the .32 caliber revolver only when Lyons insisted he carry one of the two revolvers. Davis testified that Milam engaged in the search of the drawers with them while he stood at the door of the room. Milam testified also, and this is not contradicted in the record, that Davis had the gun in his right hand throughout and motioned with it when ordering him to do things, and that when they walked upstairs, the order was, Lyons in front, Milam in the middle and Davis to the rear with the revolver in his hand.

The record discloses, however, that Mrs. Buchanan testified that no card playing had ever taken place in the basement of her home and that she had never seen Milam prior to the morning of the robbery, which clearly was contrary to the established facts, and that Davis, whose testimony as that of an accomplice had to be received with caution and carefully scrutinized, told a trusty in the county jail that "the white boy had nothing to do with the crime that he was involved in" and that "the white boy didn't know what he was getting into." Davis, also, had been read Milam's statement to the police and knew that Milam was co-operating fully with the police and had given them damaging evidence as to his part in the transaction.

A reviewing court, when passing upon the weight of the evidence, will consider the credit to be given the testimony of a witness where the record on its face presents evidence which clearly impugns the credibility of such witness as to a material fact in the case.

It seems to us, accordingly, that Mrs. Buchanan and Davis were both discredited witnesses and that their testimony with respect to Milam's part in the robbery, different from that given by Milam, was unworthy of belief and cannot be given any weight whatever.

In People v. Crump, 5 Ill.2d 251, at page 255,125 N.E.2d 615, it is stated:

"It is universally recognized that the testimony of an accomplice is fraught with weaknesses, due to the effect of motives, hope of leniency or benefits, or the effect of fear, threats, hostility, etc."

This was a first degree murder trial with the very life of the defendant in the balance. The record shows Davis a depraved person and Mrs. Buchanan a lawless person, and the testimony of each impeached. Should testimony, from such individuals, bearing directly upon the guilt of the defendant be accepted as true? We think it should not. The conviction of a person charged with first degree murder should not rest on evidence so fraught with doubt. Falsus in uno, falsus in omnibus.

Milam's testimony, in contrast, was unimpeached with respect to the essentials. Detective Brewer, a witness for the state, testified that he "could not doubt or refute anything" told him by Milam, and Detective Bruce, that Milam made no misstatement to him.

In Sorgen v. State, 36 Ohio App. 281, 172 N.E. 835, paragraph one of the syllabus states:

"Law presumes that witness is relating truth and not falsehood, and court or jury cannot start with assumption of suspicion of falsehood."

The record as to the robbery itself, therefore, seems to show that Milam took no part in tying up the Buchanans or stealing their personal valuables and was a mere spectator, standing like one transfixed, during the violence perpetrated upon the Buchanans in the basement, and only did what he was told to do, by one or the other of his evil companions in the final stages of the holdup, in carrying the whisky, the .32 caliber revolver and the bag of money.

With respect to the episode in the Cadillac, Milam testified that on opening the door to his automobile he took the .32 caliber revolver out of his pocket and threw it with the bag of money on the floor of the front seat, saying he didn't want anything to do with it and then said to Davis, "You told me that there wasn't going to be any trouble and now you have took this from him," and that Davis said, "No, but you did keep a cool head," and Lyons said, "If you had got excited, we would have tied you up with the others."

The police found $265 with a rubber band around it, a watch and the .32 caliber revolver under the seat on the passenger's side. The bag of money contained $49.20 in coin, a one dollar bill and a ring. Milam had $1 on his person.

The fact is that when the police siren sounded he stopped the car, despite the fact that he was urged to keep on going. And when Lieutenant Lentz lay mortally wounded on the ground and when every other person had departed, he alone remained on the scene.

The record shows, also, that he co-operated to the fullest extent with the police and helped them in every way possible. He told the police the directions Davis and Lyons took, pointed out Davis' home, picked Lyons out of a lineup in police headquarters, and made a forthright, though confusing, statement to the police, freely relating all that he knew about the entire matter, including his part in it.

Did these facts and circumstances warrant a finding "that he, defendant Milam, voluntarily joined in and became a party to the conspiracy and the common purpose to rob the Buchanans as was then in progress; that he did so voluntarily without any coercion or duress" as found by the trial judges?

Unfortunately, we cannot look into a person's mind and see his "state of mind." The best that can be done is to consider all the facts and circumstances surrounding the situation in which a person is involved together with his acts and statements in the matter and from such information determine what probably were the motivating reasons for his acts.

The record to us portrays Milam as a guileless tyro of metropolitan life who unwittingly associated himself with some evil characters. He had no criminal record (when twelve years of age he was in trouble for stealing tennis rackets) and never in his life owned or fired a revolver. His life with his family in West Virginia had been that of an average boy raised on a farm. He had attended school and had worked on various farms during his spare time. His employment record at the Ford Motor Company was exemplary. Is it probable that a young man with such a past would intentionally become a party to an armed robbery at the flick of a whip? Moran v. State, 11 C. C., 464, 5 C. D., 234; Andrews v. State, 15 C. C. (N.S.), 241, 23 C. D., 564.

As we view the record, Davis tricked Milam into accompanying him and Lyons to the Buchanans' home on that fateful morning. He had conceived the diabolical scheme of robbing the Buchanans of monies he knew they had accumulated through gambling with marked cards. He needed Milam as a decoy to get them into the basement of their home for the robbery. He also needed Milam's automobile for a quick getaway. And naive Milam, wholly unsuspecting any such designs on the part of Davis, fell into the trap. When Davis, then, staged the holdup, Milam, entirely surprised, was petrified with fear. His own safety was uppermost in his mind. That is why he asked Davis if he could "get around behind him." Participating in the robbery was farthest from his thoughts as he stood behind Davis, saying nothing and doing nothing. Under those bizarre circumstances, we believe that it was reasonable for him to fear that he was in imminent danger of death or great bodily injury at the hands of such vicious characters if he attempted to leave the place or refused to do anything that they told him to do, and that he did no more than what he believed was necessary to do to ward off any suspicion that he was antagonistic to their desires and unwilling to co-operate.

To us, therefore, the record tends to show that the defendant did not participate in the robbery of his own volition but because of a well-grounded apprehension of present, imminent, and impending death or serious bodily injury at the hands of these men if he did not; that it was reasonable for him to believe that he could not avoid participation in the robbery without immediate exposure to death or great bodily injury; that he seized the first opportunity reasonably safe for him to desist from such participation; and that he refused to escape, when opportunity offered, from no consciousness of wrongdoing.

The law permits the inference that a person fleeing from crime does so out of a consciousness of guilt. The law should likewise permit the inference that a person refusing to flee from crime, though opportunity offers, does so because of no consciousness of guilt. 2 Wigmore on Evidence (3 Ed.), 111, Section 276; 15 Ohio Jurisprudence (2d), 510, Criminal Law, Section 343, and cases cited.

Where an eighteen-year-old youth with a wholesome background of family life on a farm, eleven years of schooling and no criminal record, comes to a large industrial city and obtains employment in a factory where his conduct is exemplary, is tricked by a chance acquaintance, twelve years his senior, into accompanying him and a total stranger to the home of a man and wife, who engage in the unlawful sale of liquor and gambling, at 3:30 in the morning, on the pretext of asking for the return of money the minor had lost gambling there two nights before and with the understanding that there will be no trouble or violence, but in truth and in fact for the dual purpose of creating a plausible excuse to gain entrance into the home for the perpetration of an armed robbery and of obtaining the use of the minor's automobile for a quick getaway thereafter, and the minor knows nothing of such plans or the fact that his acquaintance has a loaded revolver on his person, and when in the home, the villain suddenly and unexpectedly draws the revolver to rob the place and the men tie up the couple and strip them of their personal valuables and the minor, thoroughly frightened, stands watching the violence and takes no part in it whatever, and the villain holds the revolver in his hand throughout the activities and in the last stages of the proceedings tells the minor to carry a bottle of whisky and a bag of money, and the confederate, who also has a .38 caliber revolver on his person taken from the premises, tells him to carry a .32 caliber revolver found in the bedroom, which the minor puts in his pocket, and when the three enter the automobile for the getaway the minor throws the revolver and the bag of money on the floor and says he wants nothing to do with it, and is told by the men that he would have been tied up, too, if he had not gone along with them and, after the automobile starts up with the minor behind the wheel, the siren of a police car sounds directly back of the automobile and the minor, though ordered to go on by one of the men, stops the automobile and a police officer comes to the driver's side of the automobile and tells the three to wait, returns to the police car to radio for help and then, again, comes to the minor's automobile with the man who was robbed and removes the keys to the automobile and appropriates the bag of money and informs the men that they are under arrest, and the minor submits completely to the authority and control of the police officer but the two men argue and shout at their accuser, and one of the men attempts to get out of the automobile on two occasions and is ordered to remain by the police officer but on a third occasion gets out of the automobile with a revolver in his hand to face his accuser and, upon being ordered to return by the police officer, deliberately and purposely shoots the police officer and the two men escape but the minor remains and is found minutes later by other police officers, sitting behind the wheel, crying, and the minor willingly submits to the police and co-operates with them and aids them in apprehending the two men and makes a statement freely relating all, including his part, that he knows about the events, an affirmative defense of coercion and duress to the robbery appears made out by the minor, and his participation in the robbery excused, and a judgment adjudging the minor guilty of murder in the first degree with a recommendation of mercy is manifestly against the weight of the evidence and prejudicially erroneous to him.

The record is conclusive that Milam played no active part whatever in the automobile episode which led to the tragic shooting of Lieutenant Edward Lentz, submitting entirely to the authority and control of the officer. The trial court found him guilty of murder on the theory that he had aided and abetted the robbery, was equally guilty with Davis and Lyons in perpetrating the same, and that the three men were "in flight from the scene of the robbery, and while asporting the proceeds, or loot, of the robbery, and before reaching a haven of safety and security, and before any division of the loot had been effected, as part of the res gestae, one of the coconspirators, while in the perpetration of the robbery, purposefully and maliciously killed Edward Lentz * * *."

The three judges, obviously, came to the conclusion, as pointed out by Hurd, P. J., in his concurring opinion, that the robbery as a matter of law was still in progress and that the participants were accountable to the law for any acts committed in its furtherance until its termination. However, in our opinion, the record discloses a factual situation from which reasonable minds may come to different conclusions as to whether or not the robbery, at the time of the murder, was at an end. One conclusion may well be that an intervening event intruded into the continuity of the robbery and terminated it and that an entirely new episode was inaugurated involving Davis and Lyons but not Milam. Arrest of the three men would be such an intervening event. The conclusions of fact of the trial judges show that that phase of the evidence was not considered and passed on.

"The word (arrest) is `derived from the French, arreter, to stop or stay, and signifies a restraint of a man's person; depriving him of his own will and liberty, and binding him to become obedient to the will of the law. It is called the beginning of imprisonment.' Legrand v. Bedinger, 4 T. B. Mon. (Ky.), 539, 540 (5 C. J., 385)."

It is also stated in Central of Georgia Ry. Co. v.Carlock, 196 Ala. 659, 72 So. 261, in paragraph five of the syllabus:

"An arrest may be made without actual force, or without touching the body; it is sufficient if the party arrested is within the power of the officer, and submits to arrest even as the result of a verbal command."

In State, ex rel. Sadler, v. District Court, 70 Mont. 378,225 P. 1000, it is stated:

"To constitute an `arrest,' four requisites are involved: A purpose to take the person into custody of the law, under real or pretended authority and an actual or constructive seizure or detention of his person, so understood by the person arrested."

See Melton v. State (Fla), 75 So.2d 291; Thompson v.Boston Pub. Co., 285 Mass. 344, 189 N.E. 210; Gold v. Bissell, 1 Wend. (N. Y. 1828), 210, 215; Davis Allcott Co. v.Boozer, 215 Ala. 116, 110 So. 28; Martin v. Houck,141 N.C. 317, 54 S.E. 291; Long v. Ansell, 63 App. D.C., 68,69 F.2d 386, 94 A. L. R., 1466: Price v. United States,119 A.2d 718; 6 Corpus Juris Secundum, 570; 5 Corpus Juris, 385, Section 2; 4 American Jurisprudence, 5, 6.

The question whether the robbery was still continuing or had ended when the homicide occurred was for the trier of the facts to determine in the light of the happenings subsequent to the stopping of the escape automobile by Lieutenant Lentz, and, not to have passed on the question was error prejudicial to the substantial rights of the defendant.

"In practically all jurisdictions, the question whether a particular act was done during the continuance and in furtherance of the common design is held for the jury." 18 Cornell Law Quarterly, 440.

It is stated by the Court of Appeals of the state of New York in People v. Smith, 232 N.Y. 239, 133 N.E. 574, in paragraph two of the syllabus:

"Where, upon trial of an indictment for murder in the first degree, alleged to have been committed by defendant while attempting to escape from a store which he had broken into under circumstances which constituted the crime of burglary in the third degree, the evidence warrants the view that acts performed by the proprietor and his son in apprehending, searching and handcuffing the defendant were sufficient to constitute an arrest and that thereafter defendant performed no further acts in continuance of his original crime of burglary, it should not have been held, as matter of law, that the defendant was still engaged in the crime of burglary when the homicide occurred, but it should have been submitted to the jury to decide whether the commission of this crime has been terminated."

See People v. Walsh, 262 N.Y. 140, 186 N.E. 422.

Accordingly, the judgment entered in the Court of Common Pleas of Cuyahoga County in this case is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

HURD, P. J., concurs.

SKEEL, J., dissents.