State v. Milam , 108 Ohio App. 254 ( 1959 )

I am unable to concur in either of the opinions of the majority of the court or the judgment of reversal which remands the case for re-trial on the ground that the judgment is against the weight, or not supported by sufficient evidence.

The charges, as set out in the indictment, the judgment of the three-judge trial court, and the sentence imposed, have been completely outlined in the majority opinions and need not be repeated. A statement of the essential facts, and of some of the evidence, however, seems necessary in the light of the conclusions reached by the majority of this court with which I cannot concure, and the outline of which will tend to explain the basis of this opinion.

The deceased, a lieutenant of the Police Department (Edward G. Lentz), was shot and killed by one Robert Lee Lyons, at about 4:30 a. m., in front of 6203 Quimby Avenue in the city of Cleveland on December 9, 1957. Lyons, with one Davis and this defendant, had been together beginning about 3:30 a. m. of that day when Lyons and Davis called at the home of this defendant at 1516 East 55th Street and requested him to drive them to the home of Alonzo Buchanan at 5616 Quimby Avenue to seek the return of some gambling losses claimed by all three men; such losses, it was claimed by Davis, had come about because Buchanan had used marked cards. The evidence tends to show that this defendant was taken to the home of Buchanan early in the morning of the 6th of December (2 a. m.) where he lost about $40 in a card game. Davis claimed a much larger loss and that he had discovered, either on the 8th or 9th of December, that marked cards had been used. The defendant insists that when he left his home at 3:30 a. m., December 9th, with Davis and Lyons, he was assured there would be no trouble or violence in getting the money back and that he did not know Davis had a gun. There is some supporting testimony to this claim. Whether one could rely or would be justified in relying on a statement that a known gambler could be expected to give up winnings on a claim of marked cards is open to considerable doubt. There can be no doubt that Buchanan was a gambler; that his basement room was fitted out for gambling; also, there is some evidence that this defendant did sustain a gambling loss in the early morning hours of the 6th of December, while playing poker with Buchanan and others in the basement of Buchanan's home.

After Davis, accompanied by Lyons, made his assurances to this defendant that they could retrieve their gambling losses without trouble or violence of any kind, the defendant drove Davis and Lyons to the Buchanan home on Quimby. As they arrived, Buchanan was also just returning to his home. His explanation of his whereabouts just prior to 3:40 a. m. of December 9th was that he was visting a girl friend on East 61st Street. His wife, who was then home fully dressed, did not go with him on the visit. The testimony of Davis, now serving a life sentence in connection with his part in the murder of Lieutenant Lentz, was that he was an agent of Buchanan's, seeking out customers to participate in gambling in Buchanan's basement. He said he had induced this defendant to visit Buchanan on the 6th of December and had received $10 of the $35 or $40 lost by Milam on that day. Davis testified that Buchanan wanted Davis to get Milam to return for a session of gambling on the morning of the 9th and that Buchanan had driven him over to Milam's residence in furtherance of such purpose. The implication from such testimony is that when Davis, Lyons, and Milam met Buchanan as he entered his home at about 3:40 a. m., he was just returning from the foregoing mission. As the four men entered Buchanan's home, Mrs. Buchanan was in the living room and, as above indicated, fully dressed. The four men went almost immediately to the basement and the wife followed a few minutes later. The only testimony that anything was said about returning money lost by the use of marked cards was that of this defendant. His testimony concerns only his money and no mention was made by him of the money said to have been lost by Davis and Lyons. Within a few minutes after all the participating parties were either seated or standing around a round table, which was a part of the furnishings of the room, Davis pulled a gun, pointed it at Buchanan, and demanded money. Buchanan testified in part:

"The witness: I say, we were there about four or five minutes and that is when Davis pulled his gun.

"* * *

"Q. What, if anything, did he say at that time? A. Well, he says to me, he says, ``This is it,' and I told him, I said, ``Are you kidding?' He said, ``No, I'm real,' you know. That's what he said, so I thought he was kidding.

"Q. All right. After he said, ``This is it,' or, ``This is' — whatever else he said — what took place then? A. Well, he asked me for the money, you know.

"Q. Well, exactly what did he say? A. Well, he said, ``This is it.'

"Q. Yes. A. I said, ``What do you mean?' He says, ``This is for real.' I said, ``Are you kidding?' He said, ``No, I am not kidding.' He said he wasn't kidding, so he asked me for my money and, you know.

"Q. No, I don't know. You said, ``You know.' A. Well, he told me to keep my hands on the table. I know that. I was standing up, and he told me, you know, to keep my hands on the table."

The defendant's testimony as to what took place in the basement was, in part, as follows:

"Q. Now, sir, when all of you were in the basement, what, if any conversation, to the best of your recollection, occurred at that time? A. James Davis got up and walked to the table and told Alonzo Buchanan that he wanted my money back and said — give this man his money back, and he pointed toward me.

"Q. Did James Davis tell Alonzo Buchanan why you were entitled to have your money back? A. Yes, sir; he did.

"Q. What did he tell him? A. He said that Robert and him had caught Alonzo Buchanan using marked cards and cheated me out of my money, and wanted it back.

"* * *

"Q. Now, sir, at this point — up to this time, had any weapon been shown by any person in that basement? A. No, sir.

"Q. All right. What happened, if anything, after Davis told Buchanan that he wanted Buchanan to return to you the money that you had been cheated out of? A. Buchanan said to Davis that he would send Ruth upstairs to get it.

"Q. Referring to Ruth, who is Ruth? A. Mrs. Buchanan, sir.

"Q. All right. And after Alonzo Buchanan told Davis he would send his wife to get it, what, if anything, occurred? A. Davis pulled out his gun.

"Q. Now, at any time prior to the time that Davis pulled out a gun, at this moment, did you, sir, have any knowledge or inkling that there was a gun in Davis' possession? A. No, sir; I did not.

"Q. Now, when Davis pulled out the gun, where were you? A. I was still sitting in the chair.

"Q. And where was Alonzo Buchanan? A. Standing beside me.

"Q. And you have already described that as a distance of six inches to 12 inches; is that correct? A. That is right, sir.

"Q. In what direction did Davis point the pistol? A. Directly at Alonzo Buchanan.

"* * *

"Q. When the gun was pointed at Buchanan, what, sir, did you do? A. Well, I got scared and I asked Davis if I could get around behind him.

"Q. And did you? A. Yes, sir; I did.

"Q. Now, sir, you walked around behind Davis; is that correct? A. Yes, sir.

"Q. Now, sir, what, if anything, happened after that? A. Well, he told Alonzo and Ruth Buchanan to get out on the floor. Wait a minute. I am getting ahead of myself. When he pulled out the gun and told Ruth Buchanan that she would not go anywhere and that she should tell him where the money was, and he would send Robert Lyons to get it.

"Q. And did Ruth Buchanan tell Davis where the money was? A. Yes, sir.

"Q. And where were you at this time? A. Behind Davis, sir.

"* * *

"Q. And then what, if anything, did James Davis, or anyone, do? A. James Davis sent Robert Lyons upstairs to get the money, and told Alonzo and Ruth Buchanan to get down on the floor.

"Q. And did Alonzo and Ruth Buchanan get down on the floor? A. Yes, sir.

"Q. And in what position were they on the floor? A. Face down, sir.

"* * *

"Q. Now, sir, after they lay on the floor and James Davis had sent Lyons up, what, if anything, happened? A. Well, at the time that Alonzo and Ruth Buchanan lay down on the floor — by the time they lay down on the floor, Lyons came back.

"Q. Lyons came back? A. Yes, sir.

"Q. And did he have anything with him? A. Yes, sir.

"Q. What did he have? A. A bag of money, sir."

After Lyons returned with the bag of money, Davis emptied the bag on the table and started to count it. Buchanan told him there was between $400 and $500 there, so, without finishing the count, the money was returned to the bag. Davis then directed Lyons to tear strips from a bedspread on the couch with which they tied the Buchanans as they lay face down on the floor. While the Buchanans were thus immobilized, Lyons and Davis took the watches which they were wearing and also a ring from Mr. Buchanan's finger, which property was put in the bag with the money.

The defendant testified further that Davis directed Lyons to search further for money, that he discovered a .38 caliber revolver in Buchanan's bedroom and a strong box in Buchanan's bedroom closet, which Lyons brought to the basement. The strong box, when forced open with the use of the gun barrel, disclosed nothing of value. All three then went upstairs to look for $100 bills. The defendant claims that although he went along, he took no part in the search. Two more revolvers were uncovered. Lyons offered the larger of the two (a .38 caliber) to this defendant, which he refused. He, however, took the ".32" and put it in his pocket. The defendant then took the bag of money from Lyons at Lyons' request, left the Buchanan house, and got into the defendant's Cadillac, the defendant in the driver's seat, Davis in the middle of the front seat, and Lyons on the passenger's side of the front seat. The defendant, after putting the money bag and the .32 caliber revolver on the floor, started to drive east. The defendant testified as they drove away that he told Davis:

"Well, I told James Davis that I didn't want anything to do with that [referring to the money]. I said, ``you told me that there wasn't going to be any trouble and now you have took this from him.'"

After Davis, Lyons, and this defendant left the basement, Buchanan worked himself loose, climbed out a basement window and ran to call the police. While in the act of calling at a corner phone booth, Lieutenant Lentz drove in sight at the corner of East 55th and Quimby. Buchanan called him for help, got into the police car and started east on Quimby just as the defendant started the Cadillac from the curb. After proceeding about a block or a little more, upon the sound of the police siren, the defendant stopped in the middle of the street in front of 6203 Quimby and the police car stopped about 10 feet to the rear of the Cadillac. Lieutenant Lentz got out of the police car, walked forward to the driver's side of the Cadillac, and said to all three that "this man [Buchanan] tells me you robbed him," and ordered all three to remain in the car. Lieutenant Lentz then returned to the police car, used the police radio, and then both he and Buchanan returned to the Cadillac, Buchanan stopped near the rear. The Lieutenant went to and opened the door on the driver's side of the Cadillac, took the keys from the ignition, and directed all three to stay in the car, saying they were under arrest. Lyons tried on two or three occasions to leave the car, but yielded to the Lieutenant's directions and remained seated. But, finally, he got out, went to the back of the Cadillac, drew a gun, first on Buchanan, and then pointed it directly at Lieutenant Lentz who had just taken possession of the money bag. The first shot felled the Lieutenant, but Lyons fired a second shot while he lay on the ground. Davis made his escape at about the time the shots were fired but this defendant remained seated for two or three minutes until after other police officers arrived and took him in custody.

A reference to the defendant's statement to the police, made voluntarily, within a few hours after the death of Lieutenant Lentz will be considered later but here it must be noted that there is not the slightest suggestion in his statement that he was compelled to comply with any order and command of the codefendants by threat of bodily harm or fear based upon a threat of violence if he did not go along with their purpose or should attempt to leave the unlawful enterprise. He explained the trip upstairs to search for money, which is relied upon as exemplifying duress, as set out by him in his statement as follows:

"So the three of us started upstairs and so Jimmy [Davis] asked me if I wanted a drink and I told him, yeh, that I would take one, so we walked back in the corner where they had the whiskey. We all three took a drink and took one bottle with us. We went upstairs and went through one room, we searched the room and after searching the room, we left."

The court's conclusions of fact are as follows:

"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.

"2. The evidence does disclose, however, beyond reasonable doubt that Davis and Lyons began to precipitate a robbery upon the Buchanans in the presence of the defendant, Milam; and 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. * * *

"3. The evidence further discloses beyond a reasonable doubt that while 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, and as part of the res gestae, one of the coconspirators, while in the perpetration of the robbery, purposefully and maliciously killed Edward G. Lentz, a duly appointed, qualified, and acting police officer of the city of Cleveland while said police officer was in the discharge of his duties as a police officer.

"* * *"

The record clearly supports the court's first conclusion of fact that so far as this defendant is concerned, his visit to the Buchanan home in the early hours of December 9, 1957, was not in furtherance of a conspiracy to rob. The uncontroverted evidence of the defendant is to that effect, and the state makes no contrary claim.

The second conclusion of fact is also justified by the record, that is, after Lyons and Davis started to commit their unlawful acts of taking property (money and jewelry) from the respective persons of the Buchanans by force and by putting them in fear (at the point of a gun), Milam, somewhat reluctantly, but certainly not under duress, gave assistance in carrying out such unlawful conspiracy. His own evidence attempts to show that he, in fact, took no part in the robbery, but such testimony is controverted by both Buchanans and by Davis and, in part, by his own admissions as to his conduct under the circumstances. It is equally clear that he made no effort to leave when the violence started, and followed along with Davis and Lyons during the final search of the premises, and, in fact, carried the money bag and a stolen revolver out of Buchanan's house to his automobile upon leaving, and from that point until the time of arrest, he was driving his companions from the scene of the crime. Duress, as a defense, is affirmative in character requiring a defendant who claims to have acted under duress to establish that claim by the greater weight of the evidence. Such claim is, in effect, a confession and avoidance. The law of Ohio was clearly determined on that question in the case of State v.Sappienza, 84 Ohio St. 63, 95 N.E. 381. The syllabus provides:

"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."

The facts in the Sappienza case are distinguishable from the present case only in the following respects. In that case the defendant was a coconspirator from the beginning. Here the defendant had not agreed to take part in a robbery but was actually on hand with the conspirators under a misapprehension of fact. It is also true that in the Sappienza case the defendant claimed to have announced his withdrawal from the conspiracy before any direct act to carry the plan into effect had taken place, and from that point on, he claims to have acted in fear of his life because of the threats at gun point of his coconspirators. Here the defendant did not utter a word of withdrawal after the intention of Davis and Lyons to rob the Buchanans was clear. At no place in the evidence does the defendant say or act in such a way or fashion as to indicate a withdrawal of support from the robbery, nor is there any evidence that his coconspirators threatened his physical safety if he attempted a withdrawal. The court's conclusion that this defendant actually took part in the robbery is supported by credible evidence and the surrounding circumstances.

The claim that this defendant acted in fear (which is not a legal defense) is almost completely destroyed by his own testimony and police statement. As quoted above, he said that when searching for money, Lyons found two loaded revolvers, one a ".38" and one a ".32." He offered the ".38" to the defendant, which was refused, but the defendant did take the ".32." It would be somewhat unusual for Davis and Lyons to arm the defendant if he were, in fact, under duress. The duress theory is likewise severely challenged by the following statement of the defendant, made to the police, as follows:

"We got in my car and drove about a half block and we heard the siren behind us and I started to stop and Jimmy said, keep going, but I went ahead and stopped the car and this officer came up and asked us what we had been doing."

The defendant gave substantially the same statement when testifying as quoted above. He seemed not to have been concerned with Jimmy's commands under circumstances far more likely to put him in danger of physical injury than at any other time during the robbery. The defense of duress is not presented in this case and fear, as a result of one's own mental temperment, is not a legal defense.

By the third finding of fact, as quoted above, the trial court found that the killing of Lieutenant Lentz (a police officer then on duty) was purposefully done by one of the three conspirators, the three then attempting to and acting in a common design to escape or avoid arrest while fleeing from the scene of a robbery just committed, carrying with them the stolen property, at a point of time before they, the robbers, had reached a haven of safety and before the "loot" was divided, and that the killing of the officer was purposely done while, and as a proximate result of, and during, the perpetrating of a robbery in which this defendant and Davis and Lyons were still acting as coconspirators.

The evidence adduced by the state on which this finding is predicated has been briefly detailed above but some elaboration is necessary. When Milam stopped the Cadillac and Lieutenant Lentz walked up to the left door by the driver's seat of the defendant's automobile, he asked "What is going on here? * * * This man [Buchanan] tells me you robbed him." The Lieutenant directed all three men to remain in the Cadillac, and then returned to the police car and used the radio. This fact, together with the subsequent arrival of other officers, leaves the inference that he called for help. Lieutenant Lentz then returned to the Cadillac with Buchanan following behind. All three men in the Cadillac had obeyed the officer's instructions to remain where they were. Some conversation then ensued between Buchanan, the Lieutenant, Davis, and Lyons, during which time Lyons attempted to get out of the automobile but on each occasion was directed to get back in, which commands he obeyed.

He did, however, leave his seat in the automobile unnoticed, walked or ran to the rear of the car, and crossed over to the left side while Lieutenant Lentz was looking at Buchanan. Buchanan testified that Lyons pushed him aside, pointed a gun at Lieutenant Lentz and fired the bullet, striking the Lieutenant in the forehead, causing almost instant death. Lyons fired a second shot at the Lieutenant after he had fallen to the ground and then ran east on Quimby in attempting to make his escape. In the meantime, Davis, who had been sitting between Milam and Lyons, edged to the right side of the front seat of the Cadillac and, either before or at the time the first shot was fired, started to run east on Quimby to escape from the scene, Buchanan ran west toward his home. This defendant did not move from his automobile until other police officers arrived on the scene. His testimony as to the part of his conduct or actions just prior to and at the scene of the murder is as follows:

"A. I took the gun out of my pocket and threw it on the floor and I took the money and threw it on the floor and I told James —

"* * *

"A. Well, I told James Davis that I didn't want anything to do with that. I said, ``You told me that there wasn't going to be any trouble and now you have took this from him.'

"* * *

"Q. And when you heard the police siren, was there any conversation between you and the other two men in the car? A. Yes, sir.

"Q. What conversation was that? A. Davis said, ``Don't stop.'

"Q. And what, if anything, did you say? A. I said, ``No, I'm going to stop.'

"Q. And did you stop? A. Yes, sir, I did.

"Q. And then what, if anything, happened? A. Well, I stopped and turned off the ignition and it was about, approximately a half a minute, and the police officer came out of the car, stopped a car behind us and got out of the car and walked up to my car.

"* * *

"A. He asked us what had been going on, or something to that effect. He said, ``this man tells me you robbed him,' or something like that. I don't remember the exact words.

"Q. All right, he said, ``What's been going on? This man says you robbed him.' What, if any, reply was made to the officer at that time, and if there was one, by whom was it made? A. Yes, sir. Robert Lyons told him that we haven't, he said, ``Officer, we haven't robbed anybody. We just got what belonged to us.'

"Q. And what, if anything, did the officer then do or say? A. He told us to stay in the car.

"Q. And then what, if anything, did the officer do, if you know? A. He walked back to his car.

"Q. And how long was he back at his car? Do you know, approximately? A. I would say 45 seconds, sir. Well, no, about a minute, about a minute, sir.

"Q. And he walked back to his car for a minute and then what, if anything, did he do? A. He came back to my car, sir.

"* * *

"Q. Then what, if anything, did he say at that time? A. He opened the door and took the keys out of my car.

"Q. Now, when he opened the door of your car, sir, and took the keys out, how close was that officer to you? A. Well, he touched me, sir.

"Q. He touched you; he leaned in the car and took the keys out; is that correct? A. Yes, sir, correct, sir.

"Q. And what did he say, if anything, to you? A. He said, he told us to stay in the car. ``You're under arrest.'

"Q. And then what, if anything, happened? A. Well, at about this point, Robert Lyons attempted to get out of the car on the far side.

"Q. And what, if anything, was said at that time? A. The officer told him to get, to stay in the car.

"Q. I see.

"* * *

"Q. What conversation occurred then? A. Alonzo Buchanan ran up to my car and he said, ``Yes, sir,' or, he said, ``Officer, those are the guys that robbed me.'

"Q. And then what, if anything, did the officer do? A. Well, he was trying to talk to us and Robert Lyons and James Davis were hollering across. Everybody was hollering, and I told James Davis and Robert Lyons, I said, ``Fellows, let's be quiet and let the officer say what he has to say.'

"Q. And what then occurred? A. Well, again Robert Lyons attempted to get out of the car.

"Q. And what did the officer — what happened when he tried to get out of the car the second time? A. The officer told him to stay in the car.

"Q. And then what, if anything, occurred? A. Well, the officer was standing talking to all of us and Robert Lyons then got out on the right side of the car.

"Q. Lyons got out on the right side of the car? A. Correct, sir.

"Q. And when he got out on the right side of the car, was he quiet or was he talking? A. I don't recollect, sir. Everyone was hollering and arguing. I couldn't understand no certain word, that anybody said.

"Q. Well, were you hollering? A. No, sir, I wasn't.

"Q. So Lyons got out of the car hollering, is that correct? A. Everyone was hollering, sir. I heared Lt. Lentz holler two or three times to get back in the car.

"Q. When you say ``Lt. Lentz,' you did not know his name at that time, did you? A. No, sir.

"Q. Now, what, if anything, did you observe Robert Lyons do then? A. He went around the right rear of the car, sir.

"Q. He went around the right rear of the car, and when he went around to the right rear of the car what, if anything, did the officer do? A. Well, he just looked back across the car, sir.

"Q. And did the officer say anything? A. He yelled, ``Get back in the car.'

"Q. At Lyons? A. Yes, sir.

"Q. Now, when he was yelling, ``Get back in the car,' at Lyons, you stated he was standing in the open doorway of the car besides you, is that correct? A. That's right.

"Q. How close, sir, was he to you when he was standing there? A. From six inches, six inches to a foot, sir.

"Q. Now, what, if anything, was James Davis doing while the officer was yelling to Lyons to get back in the car? A. He motioned for me to run.

"Q. And what, if anything, did you do? A. I told him no, that I was going to stay there.

"Q. And what, if anything, did James Davis then do? A. Well, he told me, he said, ``We got to, man; we got to.'

"Q. And what did you say? A. I told him, no, that we have to stay here.

"Q. And then what, if anything, did Davis do? A. Well, he just kept sliding toward the other side of the car, sir.

"Q. And then what did he do after he slid to the other side of the car? A. Well, at about this point, I heard, I heard two shots fired."

The foregoing testimony is corroborated to some extent by Davis, Buchanan, and three or four state's witnesses who lived in the houses fronting on Quimby at the point of the crime and who were awakened by the police siren and observed the scene from their windows.

The legal problem here involved, as claimed by the defendant, is whether it could be said that the escape from the robbery by the conspirators had come to an end by the police officer's "arrest" of the defendant and his associates by directing them to stay in the automobile. It is claimed that what was done by Lyons after getting out of the automobile, thus disregarding the officer's commands, and immediately firing the shot which caused his death, was in furtherance of his desire to escape arrest, and shows, as a matter of law, that the killing was not a part of theres gestae of the robbery or in furtherance of its perpetration under the provisions of Section 2901.01 of the Revised Code. With this contention I cannot agree.

The interval of time between when the defendant started to drive his companions from the Buchanan house (the scene of the robbery), and the death of Lieutenant Lentz, could not, at most, have been more than three or four minutes. The interval between the stopping of the escape car and the officer's death was, of course, a shorter period of time. The defendant by his own testimony was taking part in the escape. He claims to have surrendered during the attempt by his companions to continue their escape. They did not surrender, but vigorously continued their efforts to avoid arrest. A defendant cannot relieve himself from the probable consequences of such attempt to escape from a robbery just committed (which at this point was a part of theres gestae of the crime) until all those involved, and with whom he is associated, have either surrendered, reached a haven of refuge or until actual immediate pursuit had ceased. One cannot withdraw from his participation in a crime to which he has already contributed his efforts in its accomplishment and which is still in actual perpetration by an act of surrender where his coconspirators continue their efforts to escape.

The cases in Ohio dealing with the continued liability of persons escaping from the scene of the commission of crime areConrad v. State, 75 Ohio St. 52, 78 N.E. 957, and State v.Habig, 106 Ohio St. 151, 140 N.E. 195. In the first of these cases, Frank Conrad and another conspired to commit a burglary. They were discovered before accomplishing their purpose. They at once attempted to escape. The officer who was killed was heard to cry out "Halt" which was followed by a revolver shot. Two other shots with a different sound were also heard. The defendant was seen by another officer escaping over the fence at the rear of the lot where the body of the deceased was found. The body of the deceased was found on the lot adjoining the premises which were the subject of the attempted burglary. Paragraphs two, three and four of the syllabus provide:

"2. Where one starts to carry out the purpose to commit a rape, arson, robbery or burglary, and kills another under circumstances so closely connected with the crime which he has undertaken as to be a part of the res gestae thereof, he is guilty of murder in the first degree, within the meaning of Section 6808 of the Revised Statutes, whether the crime which he originally undertook has been techncially completed or not.

"3. When two, in furtherance of a common design, enter upon the perpetration of a burglary armed and prepared to kill if opposed, and while so engaged are discovered, and in the effort to escape one of the burglars kills one who is trying to arrest him, both burglars are equally guilty of the homicide, although one of them was not armed with a deadly weapon, and although such killing was not part of the prearranged plan.

"4. When under such circumstances one of the burglars, at a short distance from the building and on another lot, shot and killed a police officer, who had commanded him to halt, the court properly found that the killing was in the perpetration of the burglary, and that it was murder in the first degree."

There the Ohio Supreme Court held that escape was a part of the res gestae of the crime of attempted burglary, and that when two or more are engaged in the unlawful conspiracy, it matters not which one of the conspirators fired the fatal shot, all are equally guilty of murder in the first degree as a result of a purposeful killing perpetrated by one of the conspirators during the attempted escape by the respective participants.

In the case of State v. Habig, supra (106 Ohio St. 151), Habig, with others, participated in several robberies and, while making his escape, killed a police officer. The first paragraph of the syllabus provides:

"1. Where several persons have jointly committed the crime of robbery of several victims and have taken from one or more of them property of value and are fleeing from the scene of the robbery and immediately thereafter one of the victims runs a short distance in the opposite direction and notifies policement of the crime and the direction in which the robbers are fleeing and the policemen pursue the robbers and intercept them within a few minutes thereafter, and when the robbers have proceeded in their flight a distance of not more than five city squares and while they are still in flight carrying the proceeds of the robbery which had not yet been divided among them and the robbers refuse to surrender and one of their number shoots a policeman and inflicts injuries resulting in his death, such homicide is committed in perpetrating a robbery."

The court, in its opinion, notes the killing of the police officer by Habig in his continuous effort to escape after the actual robbery, about five minutes after the last robbery had been committed, and finds that the attempt to escape is a part of the crime, if pursuit is "immediately begun and continued without interruption until the flight has carried the perpetrator to a place of seeming security, or until uninterrupted pursuit is no longer continuously active." On page 163, the court said:

"In the case at bar, while the crime of robbery had sufficiently progressed to support a conviction against Habig for that crime, he was nevertheless still engaged in his felonious purpose, that of carrying away the proceeds of his crime, and there had been no division of the spoils, neither had the conspirators reached a place of seeming security, nor had their continuous flight come to an end. The alarm was so quickly sounded, the pursuit so immediately begun, and so continuously pursued to the point where the homicide was committed, that the conclusion must be reached that the homicide was committed by Habig while perpetrating the robbery, and as a part of the resgestae."

In Commonwealth v. Doris, 287 Pa. 547, 135 A. 313, the defendant and his confederates held up a bank depository truck and tried to escape with the loot. Their waiting automobile was disabled and they scattered, abandoning the loot. The defendant, revolver in hand, was captured by pursuers. The others kept up the flight and about ten minutes after the defendant was captured and a half mile away from where he was being held, one of the conspirators, still in flight, killed an officer. The defendant was found guilty of the statutory felony of murder under Pennsylvania law which, in part, provides that a murder committed in the perpetration of, or in an attempt to perpetrate specified felonies (including robbery), shall be murder in the first degree.

The cases above cited express the greater weight of authority on the test as to when the commission of a felony comes to an end for the purpose of applying the statutory felony of murder committed while in the perpetration of a robbery, rape, arson or burglary. The subject was considered in an article in 51 Dickinson Law Review, 12, which concludes that "flight and escape" immediately pursued constitutes a part of the res gestae, that is, a part of the crime from which escape is attempted. This is the rule by the great weight of authority, which certainly is supported by Ohio cases.

The defendant, as shown by the evidence, is eighteen years of age. He has passed the eleventh grade in school. The passing of one more grade would make him eligible for college work. His work record has been good. He has been shown as a man of average intelligence. He certainly can distinguish between right and wrong. In his statement to the police, he detailed the events leading up to the death of Lieutenant Lentz by saying "we" and "us" and the like in many places while describing the conduct of each of the participants in the robbery. The statement parallels, without great deviation, those made by others, during every phase of the holdup. No where in this statement does he suggest threats against his personal safety or that he protested the taking of the money by force. This thought came into the record upon trial some months after the killing and has the appearance of being an afterthought. Certainly if the law is going to hold one of weak mind guilty of his unlawful acts until such defendant can show by the greater weight of the evidence that he does not have sufficient mind to distinguish between right and wrong, it (the law) should not extend immunity to one who participates in a dangerous felony who has an average degree of intelligence, but who fails to use it, as society has the right to expect that he should.

Where there is substantial evidence presented without error to support the judgment of the trial court, a reviewing court should not disturb the judgment. The judgment in this case should be affirmed.