DISSENTING OPINION
By GUERNSEY, J.The plaintiff in error, Arthur Miller, who will hereafter be referred to as defendant in the relation he appeared in the trial court; on trial befpre a jury in the Court of Common Pleas, was convicted of second degree murder and motion for new trial being overruled, was 'sentenced to life imprisonment in the penitentiary.
Second degree murder is defined in §12403, GC, as follows:
“Whoever purposely and maliciously kills another' * * * is guilty of murder' in 'the second degree and shall be imprisoned in the- penitentiary during life.”
The evidence in this case shows 'that the death of Roy Boggs, with whose murder Miller is charged, resulted from concussion of the brain caused by a fracture of his skull, and the wound on his scalp and skull were of such nature as to, indicate that death resulted from contact between the head of the deceased and some blunt instrument.
Evidence was offered on' behalf of the state tending to show that the wounds from which death resulted, were caused by Miller striking the deceased over the head with a billy or blackjack and evidence was introduced by Miller tending to show that the wounds which resulted in the death of Roy Boggs, were caused by Boggs, who had been engaged in a scuffle with Miller for the possession of a revolver which Miller was endeavoring to take from him, accidentally falling against the bumper of a parked automobile.
As. shown at page 976 of the bill of ex-* ceptions, the court charged the jury as follows:
“If the state has proven, by evidence, beyond a reasonable doubt, that the defendant killed the deceased, malice is presumed and it is also presumed to be mur*459der in the second degree and it is incumbent upon the defendant, after the proof of such killing, to prove the existence of justification, excuse or extenuation for the killing.”
In the fourth paragraph of the syllabus of the case of Jones v State, 51 Oh St page 331, it is held:
“Intention to kill is an essential element of the crime of murder in this state, and must be established beyond a reasonable doubt, to authorize a verdict of murder in the first or second degree. This rule is not changed by reason of the accused contending, and introducing evidence tending to prove, that the homicide was accidental, the legal effect of such evidence being, simply, to controvert an inference of an intent to kill, which may arise from the evidence introduced by the state.”
In the opinion of the court in this case, at page 436, it is stated:
“The rule has been announced in this state more than once, in.general terms, that fvom the act of killing malice might be inferred; but in all of them the intent to kill had been established, if that intent was an ingredient of the crime.”
In the case of James W. Irvin v State of Ohio, 39 Oh St page 186, it was held that:
“Where death is caused by the use of a deadly weapon, and the circumstances of the killing are detailed to a jury, some of which tend to disprove a malicious or intentional killing, it is misleading to charge the jury ‘that in this case the law raises a presumption of malice in the defendant, and an intent on his part to kill the deceased’.”
In the opinion of the court in this case, at page 191, in commenting upon the instruction referred to, the court says:
“But the latter instruction, though not so clearly erroneous, was more palpably prejudicial to the defendant as misleading to the jury. As an abstract proposition, where the circumstances of a homicide are not known, further than the mere fact that the death was caused by the use of a deadly' weapon, we do not deny that the jury may, from such fact ’alone, infer both malice and a purpose to kill. But where the attending circumstances are shown in detail, some of which tend to disprove the presence of malice or purpose to kill, it is misleading and erroneous to charge a jury that in such case the law raised a presumption of malice and intent to kill from the isolated fact that death was caused by the use of a deadly weapon. In such case the presence of malice or intent to kill must be determined from all the circumstances proven, including, of course, the character of the weapon.”
There is an extended discussion of the presumptions with reference to second degree murder, in the case of Bailus v State, O.C.C. Reports, Volume 16, page 336, and after analyzing the various cases on the subject, the court in its opinion at page 247, states that:
“The true rule deducible from the Ohio cases is that where all the attending circumstances of a homicide, including the use of a deadly weapon, appear in evidence, the jury should not be told that a presumption of malice or intent to kill arises from the fact that a deadly weapon was used.”
It is clear from the decisions above referred to, that it is only in cases where the circumstancs of the homicide are not known further than the mere fact that the death was caused by the use of a deadly weapon, the jury may from such fact alone, namely, the fact that the death was caused by the use of a deadly weapon, infer both malice and a purpose to kill.
It will be noted that in the case at bar, the court in that portion of his charge above quoted, did not base the presumptions of malice and intent on the jury finding that the killing had been done by means of a deadly weapon, but based them solely on the jury finding the defendant killed the deceased, and under the charge as given, the jury, if it found that the defendant killed the deceased unintentionally or through accident, were required to return a verdict of second degree murder.
The charge as given was clearly erroneous under the decisions above mentioned as it had the effect of relieving the state from proving purpose to kill on the part of the defendant, which under the statute is a material element of the offense, and deprived the defendant of the benefit of the evidence introduced on his behalf tending to show that the killing was unintentional. It was also clearly prejudicial as it may have resulted and probably did result in the defendant being found guilty of second degree murder and sentenced to life imprisonment instead of being found guilty of manslaughter and sentenced to from one to twenty years imprisonment.
A majority of this court has refused to consider such error as a ground for reversal *460of this judgment, .on the ground that such error was not specified in the briefs filed in this court by plaintiff in error, although there was a general assignment of error in the charge, in the petition in error.
Under the provisions of §12248, GC, as well as under the general rules relating to proceedings in error, this court has the prerogative of considering or not considering- errors not- assigned or specified in the briefs. Tire exercise of this right is dependent on the gravity of the error rather than upon the skill or lack of skill of counsel in making their assignments and specifications of error.
The existence of the prerogative is based on the fundamental duty of the courts to administer justice and to rectify injustice. An-d where an error vitally affecting a substantial right of a party comes to the attention of the court in any manner, it is the duty of the court to' consider such error as a ground for reversal. It is not the duty of the court to search for errors not assigned, but when such error is discovered in the consideration of a case, it is the duty of the court to consider such error.
.As the right to consider errors not assigned or specified, is jurisdictional, the court cannot by any rule of practice, limit its right or its jurisdiction to consider such errors. The true test would appear to be that when an error not assigned or specified, is discovered in a case, the court may or may not consider such error, depending upon the gravity of the error.
In the case at bar, the error in the charge is of the gravest character and if a court should ever exercise its prerogative to consider errors not specified in the briefs, it would appear that it should be exercised in this case.
While in a number- of opinions I have used the expression that under the statute and rule the court would consider only the errors specified in the brief, that expression was used in connection with the facts of the particular case and, amounted only to an expression that the court would not exercise its prerogative of considering errors not specified in that particular case and it was not intended to lay down or acquiesce in any rule that the court would not in any case exercise such prerogative.
•At one time the Ohio courts of review seemed to have regarded.it as their duty to consider errors which might be disclosed by an examination of the record, even though they were not assigned. 12 Ohio Jurisprudence, 813. Subsequently, however, the- Supreme- Court, in the case of McHugh v State, 42 Oh St 154, laid down the rule that:
“In a proceeding to reverse a judgment in either a civil or criminal case the court regards the record as free from error until the contrary appears; and, except as to matters relating to jurisdiction or where counsel have overlooked a statute or decision of this court governing the case, the court confines itself, ordinarily, to the errors alleged by the party complaining.”
In the case at bar it is apparent that counsel for plaintiff in error overlooked the decisions of the Supreme Court in 29 Oh St page 186, and 51 Oh St page 331, above mentioned, governing this case, and this case consequently comes within the exception mentioned.
For the reason mentioned, in my opinion the judgment in this case should be reversed and the cause remanded for a new trial for such prejudicial error in the charge.