I concur in the foregoing opinion of Kovachy, J., and in the judgment of reversal on the ground that under the facts and circumstances, as shown by the record, the judgment of guilty of murder in the first degree is contrary *Page 270 to the manifest weight of the evidence. The findings of fact of the trial court, to which I wish particularly to direct attention, are contained in paragraphs one and four which read 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 9th, with any preconceived plan or design, or conspiracy, to precipitate a robbery."
4. "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 affected, and as part of the res gestae, one of the co-conspirators, 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."
While the finding in paragraph one above is in Milam's favor as far as it goes, it does not go far enough because it does not clearly and objectively appraise the evidence. A careful examination of the record shows that there is absolutely noevidence that defendant Milam had any preconceived plan, designor conspiracy to commit a robbery. On the contrary, the evidence shows positively that Milam, an inexperienced young man of the age of eighteen years, was the innocent victim of the machinations of two evil men, Davis and Lyons, on mischief bent, who tricked him into accompanying them on the pretense of having a peaceful discussion with one, Alonzo Buchanan. Their stated purpose was to induce Buchanan voluntarily to return to them money which they had lost to him in gambling. They awakened Milam out of a sound sleep at 3:30 a. m. on the morning of December 9th, stating in substance that they had just discovered that Buchanan, by the use of marked cards, had cheated them out of money that night, and that the money which Buchanan had won from Milam when he had been taken to Buchanan's home by Davis a few nights before had been procured *Page 271 by the same nefarious means. They assured Milam that if he would drive them in his car to Buchanan's home, there would be no trouble of any kind and no violence, and Davis, in particular, assured him that he knew from past experience that Buchanan would willingly return the money which he had gained from them by cheating upon being confronted by them with the evidence of this fact.
The evidence clearly shows that Milam did not know that Davis was armed, or that Davis theretofore had been acting as a shill or confederate in crime with Buchanan, or that Davis, who had first taken him to Buchanan's home a few nights before, had shared in the money which Buchanan had won from Milam on that occasion. Milam did not know that Davis intended to turn upon his confederate, Buchanan, and intended to enforce his demands at the point of a gun. This evidence is extremely important, as it clearly shows that Milam positively was not a prior co-conspirator with Davis and Lyons in what occurred in the early hours of the morning at the Buchanan home.
Referring to the findings of fact as contained in paragraph four above, it is obvious that the language therein is taken almost verbatim from the case of State v. Habig. 106 Ohio St. 151,140 N.E. 195. An examination of the Habig case clearly shows a set of facts entirely distinguishable from the facts of the instant case. In the Habig case, the evidence shows that Habig and two of his companions were prior co-conspirators. When they had some difficulty with one of their victims, they started to flee, taking the proceeds of the robbery with them. One of the victims called the police, who immediately set out in pursuit of the robbers. Patrolman Dyke was in the lead and intercepted the robbers, and, when he ordered them to stop, was fatally shot by Habig. The shooting occurred in hot pursuit and without any surrender by Habig or either of his two companions. Habig was indicted for murder in the first degree. Upon trial the court found that the evidence did not sustain the first count of the indictment of premeditated malice but did sustain the second count — namely, murder in the commission of a robbery, and in doing so, used language similar to that quoted above in paragraph four of the findings of the trial court. *Page 272
The Habig case approved and followed Conrad v. State, 75 Ohio St. 52,78 N.E. 957. Without detailing the facts of that case, we call attention to paragraph two of the syllabus which reads:
"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 technically completed or not."
How different are the facts in the instant case. In the first place, as previously noted, Milam was not a prior co-conspirator; and second, according to the undisputed evidence, Milam surrendered to the police officer at the first opportunity afforded him by stopping his car immediately upon being signaled so to do. Furthermore, at no time did Milam disobey the orders of Officer Lentz, but, on the contrary, obeyed every order of the officer, remained submissive, and accepted arrest willingly and without hesitancy. The evidence also shows that he stopped his car against the desperate urgings of Davis and Lyons to keep on going and not only surrendered himself to the police officer, but, by his act, in co-operating with Officer Lentz, delivered both Lyons and Davis into his custody.
The evidence shows further that Lyons and Davis also submitted to the jurisdiction of the police officer for a period of time sufficient to enable Officer Lentz to order them to remain seated in the car while he went back to the police car and put in a call for assistance. The evidence shows that they obeyed this order. The evidence shows also that, thereafter, Officer Lentz returned to the car, opened the door on the driver's side where Milam was seated, reached in, removed the keys from the ignition lock and, according to Milam, told them they were under arrest. It was after all three were under the jurisdiction of the police officer that Lyons attempted, at least three times, to get out of the car on the passenger side and at least twice obeyed the command of Officer Lentz to stay in the car. It was not until the third time that Lyons got out of the car that he went to the rear of the car, *Page 273 and then, without any provocation, wantonly, maliciously and unexpectedly fired at Officer Lentz, causing his death, for which Lyons is now under sentence of death, this court having affirmed a judgment of guilty of murder in the first degree entered in the Court of Common Pleas. When Lyons fired the fatal shot, Davis took advantage of this opportunity to attempt to escape along with Lyons.
In the meantime, Milam again made no attempt to escape although urged to by Davis, but instead remained at the wheel of the car where he was found crying when the other officers arrived on the scene. When he saw the other officers, he directed them to where Officer Lentz was lying on the ground by saying — over here officer, someone has been hurt — or words to that effect. Thereafter, he co-operated with the police in locating Davis, and in all other respects. Also, he refused to testify in favor of Lyons or Davis.
The evidence warrants the view that the acts performed by Milam in stopping his car and in surrendering himself to the custody of Officer Lentz and at the same time delivering Davis and Lyons to the custody of the police officer for an appreciable period were sufficient to show a break in the continuity of events and an intervening episode between the robbery and the homicide, by reason of which it should not beheld as a matter of law under the principle of the Habig andConrad cases, that the defendant was guilty of murder in the first degree.
This is especially true since Milam was not a prior co-conspirator, had no intention to commit a robbery but was present on the scene only because of false and fraudulent representations of Davis and Lyons, was under duress while in the Buchanan household, as shown in the opinion of Kovachy, J., and at all times submitted to the officer, obeying his commands in all respects, and in refusing to escape after the homicide although urged by Davis to do so. Furthermore, the evidence tends to show a complete lack of any felonious intent on Milam's part because he had no knowledge of the crime intended and perpetrated by Davis and Lyons in the robbery of Buchanan.
The only basis upon which Milam could be held to answer for the crime of Lyons and Davis would be as an aider and *Page 274 abettor, since whoever aids, abets, or procures another to commit an offense may be prosecuted as a principal. To hold under the evidence, as shown in this case, that Milam conspired to commit a felony or that he purposefully aided or abetted the slayer, is, in our opinion, contrary to the manifest weight of the evidence.
The state also places some reliance upon the case ofCommonwealth v. Doris, 287 Pa. 547, 135 A. 313, also discussed in the dissenting opinion. The Doris case must be distinguished from the instant case on the facts. It is inapplicable here because Doris, with four others, formed a conspiracy to rob a bank messenger. Doris was one of the group of conspirators. In escaping with the stolen property, they were obliged to abandon both the car and the loot. They fled together on foot but kept up a running fire upon the officers. Doris was one of those who kept firing while fleeing, thus indicating his murderous intent and although an officer was killed after Doris was wounded and captured, nevertheless Doris was properly found guilty of murder as the result of the death of the officer. The many factual difference between the two cases are too obvious to require further discussion.
It is worthy of observation that the Habig, Conrad and Doriscases, supra, as well as all other cases cited and relied upon by the state, have one thing in common by reason of which they must be distinguished from the instant case. In all of these cases, the defendants had a felonious intent in their conspiracy to commit the crime of robbery, burglary or other felony. In the case at bar, all the evidence tends to negative a felonious intent on the part of the defendant. Here we have a young man, quite immature and guileless, who was innocently tricked into a web of circumstance by hardened criminals, from which he attempted to extricate himself at the first opportunity which afforded him any degree of safety.
While we do not find any authoritative decisions in Ohio factually analogous to the instant case, certain cases in other jurisdictions may throw some light on the subject, although the fact situation here presented is so unusual and extraordinary that we doubt whether there are any other cases directly in point. *Page 275
In Patton v. Commonwealth, 289 Ky. 771, 160 S.W.2d 180, it was held, as appears by the second and third paragraphs of the syllabus:
"2. To constitute one guilty of `aiding and abetting' in the commission of a crime, it is essential that evidence be introduced to show a plan or concert of action in its commission or to show that the accused by overt act or pronouncement has encouraged, assisted or procured the principal to commit the unlawful act, and one's mere presence at the scene of the murder is not sufficient proof of an `unlawful act' to submit the issue of aiding and abetting to the jury.
"3. Where defendant got out of automobile with his hands up and did not participate in or encourage attack on officer made by defendant's brother, and made no attempt to escape after fatal shooting of officer, although he could have done so, court properly refused to instruct jury on count charging that defendant had `aided or abetted' his brother in the commission of the crime."
To the same general effect, see the earlier case of Whitt v.Commonwealth, 221 Ky. 490, 298 S.W. 1101.
Coming now briefly to consider the motion for new trial, it appears that evidence was presented to the court that Lyons from his place in the death row in the Ohio Penitentiary made a statement which repudiated certain of his testimony given in the trial of his own cause with respect to Milam. This testimony, coming in the shadow of impending death, when it could be of no benefit or advantage to Lyons, should have been given more serious consideration by the court because it exonerated Milam from complicity either as a co-conspirator or as an accomplice in the robbery and supported the view that Milam was so frightened that "he was shaking in his boots while in the Buchanan home." This, together with the fact that the evidence given by Davis at the trial, was completely at variance with the evidence given by the trusty in the jail in respect to what Davis told him about the case, would also tend to exonerate Milam and should have been sufficient to cause the court to re-examine the entire case with a view to granting the motion for new trial which, in our opinion, in the light of all the evidence, unquestionably should have been granted. *Page 276
In conclusion, it is important to observe that the bill of exceptions in this case consists of 741 pages. It is obvious, therefore, that extended quotations of testimony, taken out of context, as appears in the dissenting opinion, cannot alone form the basis of a judgment of the entire case on its merits. It should be observed also that the testimony of four defense witnesses was stipulated as to material facts in the case, a practice which should not be indulged in a first degree murder case. The presence of witnesses on the witness stand is highly important in determining their credibility and the weight to be given to their testimony. A complete appraisal of the evidence forces the conviction that in this case the defendant was unwittingly dragooned into a situation of peril so great and under such peculiar circumstances, which developed so rapidly and unexpectedly, and over which he had no control, which should question any felonious intent on his part.
In this case an officer of the law was shot down in the performance of his duty — a heinous offense which must be deeply deplored. It is important to the people of the state of Ohio that the guilty in such case should be punished to the full extent of the law. It is equally important to the people of the state of Ohio that the proceedings in such case be in strict accordance with the rules of law.
I concur in the judgment of reversal because upon an examination of the entire case, it clearly appears that the judgment of the trial court is manifestly against the weight of the evidence and requires a reversal and a new trial under the rule laid down by the Supreme Court in the two cases ofState v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517, andState v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148.