I respectfully dissent from the majority opinion for the reason that the jury may have been and probably was confused by the general charge. Section 2945.83 *Page 438 (D), Revised Code. I fully recognize that the general exception of the defendant to the charge will reach only errors of commission. But, if considering the charge in its entirety, it may have confused the jury in its application of the law to the facts, the judgment should be reversed.
The majority opinion states the facts fairly and fully, which in their most favorable light to the defendant present the defense of self-defense, Graham v. State, 98 Ohio St. 77, 81,120 N.E. 232, 18 A. L. R., 1272, and also a general defense against the charge of voluntary and involuntary manslaughter.
No distinction is made in the general charge between the two types of manslaughter which is held to be necessary in State v.Carter, 75 Ohio App. 545, 58 N.E.2d 794, the seventh paragraph of the syllabus; State v. Laswell, 78 Ohio App. 202,66 N.E.2d 555, paragraph five of the syllabus. In this case, both types of manslaughter were clearly projected into the record and should have been differentiated for the information of the jury.
The killing of Lupo, Jr., was admitted, but, against the charge of voluntary manslaughter, the defendant asserted that he did not intentionally shoot the deceased but that the discharge of the revolver was purely accidental. Although our Supreme Court has not spoken on the subject, an intentional killing is probably a material element of voluntary manslaughter as now defined in the statute. State v. McDaniel, 103 Ohio App. 163,144 N.E.2d 683.
Against the charge of involuntary manslaughter, the defendant's testimony tended to prove that in the shooting which killed Lupo, Jr., he committed no unlawful act.
The state, to support the conviction of involuntary manslaughter, must prove the killing to have occurred in the commission of an unlawful act. Whether or not such a killing occurred was for the determination of the jury. It must further appear that the act committed was made unlawful by statute.Johnson v. State, 66 Ohio St. 59, 63 N.E. 607, 90 Am. St. Rep., 564, 61 L.R.A., 277; State v. Schaeffer, 96 Ohio St. 215,117 N.E. 220, L.R.A. 1918B, 945.
Upon the facts as developed by the defendant, the jury could have found that when the second shot was fired which *Page 439 killed Lupo, Jr., the defendant, in the situation as it appeared to him in the exercise of his faculties, believed and had good reason to believe that he was in imminent danger of great bodily harm.
When the defendant's attention was first directed to Offenberger, the drunken woman whom he was accompanying was screaming, and the circumstances could well have led the defendant to believe that Offenberger was abusing her. When defendant remonstrated with Offenberger, he left, but with the threat that he would return. He did return, and with him came seven or eight other young men with whom he had been drinking for hours. They did not come back deliberately but on the run. To the defendant they may have presented the appearance of a gang with a fixed purpose of getting even with him for his offense toward one of their number. They came up close to the defendant, menaced him, threw bricks at him or his associate and, finally, one of the number, a brother of Lupo, Jr., assaulted the defendant violently. All these occurrences were late in the night season. Admittedly, the defendant shot the first time merely to frighten the group which was menacing him. In the situation as it then appeared to the defendant, even before the final assault on him, the jury could have found that he acted in self-defense. If he was assaulted by Lupo at about the time and before he fired the second shot, the jury would have been justified in acquitting him on the ground of self-defense. It matters not that the evidence may, in our judgment, preponderate in favor of the conclusion that the assault on the defendant did not occur until after the second shot or whether he acted as a reasonable man in shooting the second time.
Let us then examine the general charge upon the foregoing factual developments. There is no doubt that it employed the reasonable man theory in charging the law of self-defense. It instructed the jury to test the action of the defendant in shooting Lupo, Jr., as a reasonable man. This form of charge has been repudiated in State v. Sheets, 115 Ohio St. 308,152 N.E. 664; Marts v. State, 26 Ohio St. 162; Nelson v. State,42 Ohio App. 252, 181 N.E. 448. In the Sheets case, the Supreme Court affirmed the Appellate Court which had reversed the trial judge upon the giving of a charge quite like the one which we *Page 440 have under consideration. True, the special charge, given at the request of the defendant, properly stated the law of self-defense, but this did not cure the error in the general charge for the manifest reason that it is impossible now to determine which instruction the jury accepted as a correct statement of the law. 39 Ohio Jurisprudence, 928, Trial, Section 254, and the many cases there cited. The failure to properly charge on self-defense was prejudicially erroneous to the defendant.
The trial judge said to the jury that if the killing was accidental, the defendant should be acquitted. But, he also charged as follows:
"If he intentionally fired the shot but did not intend to kill * * * [Lewis] Lupo or anybody else, then, of course, he would not be guilty of murder in the second degree, but he would be guilty of a lesser offense of manslaughter."
This instruction said to the jury that, as a matter of law, if the defendant intentionally fired the second shot he thereby committed an unlawful act. This, in our judgment, was an invasion of the province of the jury. The charge in the following sentence states that the killing though unintentional, must have been unlawful, but this did not remove the fault in that part of the charge which we have quoted. Upon the whole, this sentence is substantially a reiteration of the quoted language above.
In Martin v. State, 70 Ohio St. 219, 71 N.E. 640, the court held that a predecessor statute to Section 3773.21, Revised Code, did not have application to "one who discharges fire-arms on his own premises" and that "one who unintentionally kills and shoots another by discharging fire-arms on his own premises is not thereby guilty of manslaughter." This statute now reads:
"No person shall discharge a firearm on a lawn, park, pleasure ground, orchard, or other ground appurtenant to a school-house, church, or an inhabited dwelling, the property of another, or a charitable institution, or upon or over a public road or highway. This section does not prevent or prohibit the owner thereof from discharging firearms upon his own enclosure."
At the time Martin v. State, supra, was decided, the last sentence as it now appears in the foregoing statute was omitted.
Section 3773.04, Revised Code, makes it an offense to point *Page 441 or aim a fire-arm at or toward another but provides that it must be intentionally done and also that it does not extend to cases in which firearms are used in self-defense. These are the only pertinent statutes which we find relating to the illegal discharge of firearms.
The facts as developed in this case present a close question as to the guilt of the defendant of any offense. It was, therefore, vital that the charge clearly present to the jury the law which should govern its resolution of the facts. It does not, in our opinion, meet the requirement.
The first and second assignments of error are well made. The conviction and sentence of the defendant should be reversed and the cause remanded.
HORNBECK, J., of the Second Appellate District, sitting by designation in the Tenth Appellate District.