dissenting:
I regret that I am not able to concur in the judgment of my associates as expressed in the majority opinion. It would be idle for me to go over all of the details of this case which have been comprehensively presented in the majority opinion. I may have, in my own mind, doubts as to the validity of the so-called confession but waive this for reasons given by Judge Hornbeck.
I am, however, definitely committed to the conclusion that there has been in this case prejudicial error, and I will note my reasons as briefly as possible.
Sec; 13437-2 GC, recites what shall constitute a sufficient indictment. The first sentence is:
“The indictment or information is sufficient if it can be ■ understood”, *250enumerating five particulars, of which 4 and 5 are especially • applicable.
Sec. 13437-6 GC provides the forms in charging offenses, stating:
“The following forms may be used in the cases in which they are applicable, but any other forms authorized by this or any other law of this state may also be used, and other brief and comprehensive forms applicable to other offenses may be used.”
In the section cited there are fifteen different forms prescribed beginning'with “adultery” and ending with “robbery”. The form prescribed and used in the case at bar for murder in the first degree is as follows:
A. B. unlawfully, purposely and of deliberate and premeditated malice, killed C. D.; or A. B. did unlawfully, purposely and while in the perpetration of (or attempting to perpetrate) a burglary, kill C. D.”
The last paragraph of the section is to this effect:
“Provided, that the prosecuting attorney, if seasonably requested by the defendant, or upon order of the court, shall furnish a bill of particulars setting up specifically the nature of the offense charged.” (Emphasis mine.)
It is admitted in this case that the prosecuting attorney was seasonably requested by the defendant to furnish a bill of particulars. The Judge, presiding at the trial, denied the request of the defendant for reasons stated in his opinion.
Before the adoption in 1929 of the present statute providing for the short form, which was used in this case, the Supreme Court, in the case of State v Boyatt, 114 Oh St 397, passed upon the question of the right of a defendant to have a bill of particulars. It was held that “under the General Codé, the State cannot be required to file a bill of particulars in criminal cases”. Allen, J., rendered a very concise and clear opinion. She stated on page 399:
“The attorney for the defendant, however, claims that he is entitled to have the motion for the bill of particulars granted upon the ground that the defendant is entitled to be apprised of the nature of the charge against him. Under *251the decisions in this state, however, the defendant’s rights in that particular are amply protected by the holdings with regard to the requisites of the indicment. This court has decided that an indictment must contain a complete description of the offense charged, and that it must state every circumstance of an intention, knowledge, or action that constitutes the crime.”
Further, on the same page:
“Therefore the defendant, under Ohio law, due to the requisites of the indictment, is given all that he legitimately can ask as to being apprised of the nature of the crime.” (Emphasis mine.)
The present statute became effective in 1929, three years after Judge Allen’s opinion. It provided, in substance, short forms for indictments which did not contain all the matters that the Court had held were essential to a proper indictment as set out on page 399.
As a protection to a defendant and as compensation to him for the requirement that he proceed to trial under the short form provided in said section, there is the provision that there shall be furnished by the prosecuting attorney a bill of particulars “setting up specifically the nature of the offense charged”.
In the Boyatt case the Court passed upon the old form of indictment and held that the bill of particulars did not make more definite and certain the indictment which was already specific.
The Legislature in agreeing that short forms of indictment might be used, felt that it was only just to the person charged that a bill of particulars be provided which would furnish the defendant the specific matters which the longer form of indictment .used prior to the passage of the statute made obligatory. I do not concede that any Court trying a defendant has a right to say, in the face of the provision of the statute that if, seasonably requested, the defendant may be denied the right to be informed of those facts which in his judgment are essential to make the charge specific and to enable him to meet the evidence of the State which must be confined within the limits of the bill of particulars. I do not believe that it is within the province of the Court to tell the defendant that in spite of'his request and belief that he should have more definite statements which may be furnish*252ed by a bill of particulars, that he is not entitled to such a bill of particulars. In the case at bar it became very important to the defendant to ascertain the exact time when the offense is claimed by the state to have been committed, because he had the definite and declared intention of asserting an alibi. It is not for the Court to say, “You have made -a confession in 'which you have stated the time of the occurrence, which is now charged against you in the indictment, and therefore you are not entitled to a bill of particulars”. The=statute is certain, definite and specific and should not be nullified by what a court may think of the request or of the necessity of having specific information. The Judge writing the opinion has twice stated in the opinion that the refusal to furnish this information by way of the bill of particulars was error, but that the same was not prejudicial.
If has been suggested that the statute permitting short forms would be nullified if the defendant could demand a bill of particulars setting up specifically the nature of the offense charged. The statute permits short forms and, no doubt in the great majority of cases, no bill of particulars would be requested, and the purpose of the statute in simplifying procedure would be, in a large 'measure, accomplished. But, when the defendant requests a bill, the prosecuting attorney shall furnish same. This is the provision of the statute.
The present case is of supreme importance to defendant and every protection provided by the statute should be scrupulously accorded to him. While the crime committed was atrocious, and its perpetrator should justly suffer the extreme penalty, yet all right thinking citizens must contíede that before conviction he should have the full protection of the law.
I, therefore must dissent, basing the same not upon what I regard as rather flimsy evidence as to the validity of the confession, but solely because the defendant in his own judgment and within the time prescribed - by the statute, requested information which the statute positively says must be furnished to him and which was refused.
I can readily conceive that if the view taken by the trial court is to be endorsed, that trial courts will be led to the denial of a bill of particulars because the court in its own mind has some reason =that is satisfactory to it.
I therefore dissent from the judgment which affirms the judgment of the Court below.