Fred J. Massa, Kenneth Ray McCartney, and Earl Sites were jointly indicted for murder in the first degree. The indictment, in substance, charged that Massa, McCartney, and Sites, on the 27th day of June, 1930, at the county of Crawford and state of Ohio, did unlawfully, purposely, and while in the perpetration of or attempting to perpetrate a robbery, kill Ralph Wilcox.
To this indictment, pleas of not guilty were entered. Separate trials to a jury were had. Verdicts of guilty of murder in the first degree without a recommendation of mercy, were returned. New trials were denied, and sentences of death, in accordance with the law, were imposed.
These causes are now in this court upon petitions in error, and the object of these proceedings is a reversal of the judgments and sentences aforesaid. *Page 534
On the 27th day of June, 1930, about the hour of 10:30 p.m., the plaintiffs in error, in a stolen automobile, drove up to the Texaco filling station at Galion, Ohio. Ralph Wilcox, a young man of twenty years of age, was in charge of this station. His wife was with him. McCartney, who was driving the automobile, ordered five gallons of gasoline. While Wilcox was putting the gasoline in the tank of the automobile, Sites went to the toilet, which was located in the station. After Wilcox had put the gasoline in the tank Massa told him that "the man inside the station would pay him for it." Wilcox thereupon entered the station and Massa followed him to the door thereof. Sites came out of the toilet with a gun in his hand. Massa then drew his gun and ordered Wilcox "to stick them up." Wilcox raised his left hand and Massa shot him. After the shooting, Massa, McCartney, and Sites fled from the scene of the crime in the stolen automobile. Thereafter they were apprehended and voluntarily confessed, in writing, the respective parts they took in the shooting and holdup aforesaid.
According to their confessions they went to the filling station for the purpose of robbing the attendant. Massa, in his confession, states that he shot Wilcox after Wilcox had shot at Sites. He further states that Sites had McCartney's gun in his hand at the time of the shooting. Massa did not testify and no witnesses were called in his behalf. McCartney did not enter the station. He remained at the wheel of the automobile during the entire time of the attempted holdup. He did not testify, and no witnesses were called in his behalf. Sites took the witness stand in his own behalf. He denied *Page 535 that he had a gun at the time of the shooting, and also repudiated his confession insofar as it had him saying, "We had arranged to rob the place," and "While in the toilet I heard shooting, and I came out with McCartney's gun in my hand." In all other respects, he testified that his confession was true. He claimed that some three days prior to the signing of his confession he had been slapped by the chief of police of Mansfield. The chief, however, was not present when the confession was signed, and the sheriff of Richland county and his deputies denied that Sites had been mistreated.
Massa, McCartney, and Sites have criminal records. They were inmates of the Ohio Penitentiary at the time the indictment at bar was presented. According to their own admissions, they had been stealing, robbing, and raping for months prior to the commission of the crime laid in the indictment.
Ralph Wilcox, shortly after the shooting, was taken to the Good Samaritan Hospital at Galion, Ohio, where medical attention was given to him. On August 3, 1930, he died as a direct and proximate result of the bullet wound inflicted upon him by Massa.
The foregoing brief review of the facts of these cases shows how unwarranted is the claim of error that the verdicts are not sustained by sufficient evidence. Unquestionably, the verdicts are supported by the degree of proof which the law requires.
It will be observed that the plaintiffs in error are charged in the indictment with having killed Ralph Wilcox on June 27, 1930, and the proof shows that Ralph Wilcox died on August 3, 1930. On account of the variance, counsel for plaintiffs in error insist *Page 536 that their motions for directed verdicts for plaintiffs in error at the close of all the evidence should have been sustained, and that the refusal of the trial court to so direct constitutes reversible error. With this contention we are not in accord, for the reason that time is not of the essence of the offense.
Section 13437-7 of the General Code (113 Ohio Laws, 165), as far as pertinent, provides: "An indictment * * * shall not be invalid, and the trial, judgment or other proceedings * * * affected * * * for omitting to state the time at which the offense was committed, in a case in which time is not of the essence of the offense; or for stating the time imperfectly; * * *." Furthermore, counsel for plaintiffs in error, prior to the trials, obtained from the prosecuting attorney bills of particulars, in which counsel were advised that Ralph Wilcox had died about one month after the shooting. No prejudice to the plaintiffs in error, therefore, appears by reason of the variance, and hence no reversible error exists. Section 13449-5, General Code.
As to the contention of counsel for plaintiffs in error that by reason of the variance certain constitutional and statutory rights of their clients have been violated, it is enough to say that the records do not sustain such a contention.
Counsel for plaintiffs in error further insist that their motions for directed verdicts should have been sustained for the reason that the state of Ohio had failed to prove that their clients had the capacity to commit the crime charged in the indictment. With this contention we do not agree.
It is true that the state did not prove the age of either Massa or McCartney, but the records are replete *Page 537 with references to them as "men." A "man" is an adult male of the human kind. Furthermore, Massa and McCartney, when arraigned, entered pleas of not guilty, were present at their trials, and were seen by the jury. They heard themselves spoken of as "men," and neither they nor their counsel challenged the use of that word. Surely, in the light of these records, no one could seriously contend that Massa or McCartney were either children under seven years of age or boys not over fourteen years of age, and hence incapable, or at least prima facie presumably incapable, of committing crime. As heretofore stated, they were spoken of as men, and a "man" is one who has attained full growth, has passed the age of puberty, has reached his legal majority, and has come to years of discretion. That word is clearly distinguishable from the words "woman," "boy," and "youth."
Inasmuch as Sites took the witness stand in the trial of his case and stated that he was twenty-eight years of age, this claim of error is not urged by his counsel.
The trial court, over the objections and exceptions of counsel for plaintiffs in error, admitted in evidence a certain gun; also the testimony of Russell L. Sanner to the effect that his house had been burglarized and a certain pistol stolen, the testimony of Mrs. F.C. Jeffers that she had seen Massa in the Sanner house at night, and the testimony of the prosecutor of Richland county, and others, as to what Wilcox said to Massa and as to Massa's conduct and demeanor when confronted by Wilcox at the hospital. The trial court also struck from the records certain testimony of Mrs. Ralph Wilcox to the *Page 538 effect that her husband had a gun at the time of the shooting and that he had shot at the robbers during the attempted holdup. Counsel for plaintiffs in error insist that the trial court erred in admitting and excluding this evidence.
The record discloses that Massa admitted that he shot Wilcox. Hence, the rule of law enounced in Walker v. State, post, 540, 8 O.L. Abs., 657, 175 N.E. 29, has no application here.
As to the gun, McCartney admitted that he owned it, and he and Sites both had it in their possession at the time of their arrest on July 5, 1930. Massa admitted in his confession that he had stolen the German Luger automatic from a house on Highland avenue. Manifestly the rulings of the trial court, even if in some instances erroneous, did not prejudice the plaintiffs in error or prevent them from having a fair trial.
The claim of counsel for Sites that his confession was not given voluntarily is not borne out by the evidence. Hence this claim of error we find and hold to be not well taken.
The trial court, in part, instructed the jury as follows:
"Should your verdict be that the defendant is guilty of murder in the first degree, you have a right to recommend mercy provided you see fit to do so. The statute provides that one who is guilty of murder in the first degree shall be punished by death unless the jury trying the case recommends mercy, in which case, the punishment shall be imprisonment in the penitentiary during life. The effect of such recommendation by you will be to transform the penalty of death, which follows a conviction of murder in the first degree without recommendation *Page 539 of mercy, to imprisonment for life, with the further provision, however, that he shall not be recommended for pardon or parole, except upon proof of innocence established beyond a reasonable doubt, but this provision does not take away from the Governor of the State his constitutional power to pardon."
It is contended by counsel for plaintiffs in error that by so charging the trial court lodged within the minds of the jurors the thought or idea that if mercy was extended the Governor of the State might some day pardon the plaintiffs in error, and that in order to prevent such happenings the jurors, although they might have felt differently had they not been so instructed, refused to recommend mercy. This contention is without merit; all that the trial court did was to charge the law. Furthermore, by the overwhelming weight of the evidence the plaintiffs in error planned a robbery, and, while attempting to consummate it, shot down Ralph Wilcox at a time when he was lawfully defending himself and his master's property. Obviously Massa, McCartney, and Sites did not show Wilcox any mercy, and after a most careful reading of the records in these cases we fail to find any evidence therein tending to show any reason why the jurors should have recommended mercy for them.
All other assignments of error have been carefully examined and found to be without merit.
Holding these views, it follows that the judgments of the court of common pleas now under review should be affirmed.
Judgments affirmed.
PENDLETON, P.J., and RICHARDS, J. (of the Sixth Appellate District), concur. *Page 540