#### The State of Ohio, Appellee, *v.*Salter, Appellant.

(No. 30951

Decided March 24, 1948.)

*265
      *Mr. Harry Friberg*and *Mr. Joel S. Rhinefort,*for appellee.

*Mr. William D. Driscoll,*for appellant.

Sohngen, J.

Salter asserts 13 assignments of error. The ninth assignment of error, namely, “the finding is contrary to law and is not sustained by sufficient evidence and is contrary to the manifest weight of the evidence,” raises the principal questions for our decision. ,

*266As to the contention that the finding of guilty is not sustained by sufficient evidence and is contrary to the manifest weight of the evidence, suffice it .to say that we are not required to weigh the evidence in a criminal ease. Section 13459-1, General Code; *State*v. *Petro,*148 Ohio St., 473.

We come now to the principal question for our decision.

Murder in the' first degree is defined by Section 12400, General Code, as follows:

> “Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in. the penitentiary during life.”

To warrant a conviction of murder in the first degree, all the elements of the crime as defined by Section 12400, General Code, including the element of *intent to hill,*must be established beyond a reasonable doubt. *Jones*v. *State,*51 Ohio St., 331, 38 N. E., 79. Salter contends “that in the absence of allegation and proof of premeditation, deliberation and malice,” the-state must prove beyond all reasonable doubt he was in the commission of one of the enumerated crimes set out in the statute, in this case rape, and, moreover, must so prove he had, at the same time, the specific' intent to kill, and did,kill; and that there is no evidence in this case which proves-directly or inferentially that Salter intended to kill anyone when he administered the chloroform to Barbara.

Salter relies on the case of *Robbins*v. *State,*8 Ohio St., 131, to sustain his contention. In that case the law question raised, which is pertinent to the law question in the instant case, involved the court’s charge to *267the jury. The indictment in the *Bobbins case*charged murder in the first degree by administering poison. The facts disclosed that the administration of the poison was for the sole purpose of causing an abortion, and this was the intent of the accused , and also of the person who took the poison and died. The court’s charge, in the *Robbins case,*found of pages 167, 190 and 191, was, in part, as follows :

> “ ‘In most cases of murder in the first degree, it is necessary to establish, by proof, beyond a reasonable •doubt, the fact of killing, *the intent to hill,*and the deliberate and premeditated malice; but, *on such an indictment as this, in order to find the defendant guilty of murder in the first degree, it is not necessary that ■the defendant at any time have intended to hill Nancy Holly** * V

> **** if the accused administered the poison to . Nancy Holly of which she died, with a knowledge of its poisonous or deadly quality, and with intent not to kill her, but to produce an abortion, or destroy a child ■of which she was pregnant at the time, this would be ■sufficient to constitute murder in the first degree.”

This court held there was error in that charge and remanded the cause for further proceedings.

In the instant ease, the state concedes that in order to warrant a conviction of murder in the first degree, the element of purpose and intent to kill must be established beyond a reasonable doubt; and agrees that, because of the error in the court’s charge in the *Robbins case,*this court very properly reversed the judgment of the trial court there and remanded the ease for further proceedings.

The *Robbins case*is distinguishable from the instant case. That case does not sustain Salter’s contention because the question there raised is not involved in the instant case. Here, no instructions to a jury were involved. The trial judges sitting as judge *268and jury heard the evidence, found the defendant guilty, and in so doing found all the necessary elements, including intent to kill, to have been proved beyond a reasonable doubt.

Section 12400, General Code, *supra,*sets out three types of situations where a homicide constitutes murder in the first degree. (1) Where committed purposely and with deliberate and premeditated malice; (2) where committed purposely and by means of poison; and (3) where committed purposely and in perpetrating, or attempting to perpetrate, rape, arson, robbery or burglary.

What does the phrase “purposely * * * kills” mean as used in Section 12400, General Code? Does it mean that it must be directly and positively proved that Salter, as he pursued the gratification of his lust as his main design, had the thought that “I am going to kill Barbara Dunn.” We do not think so.

Intent is a mental phenomenon, and in order to determine whether an intent to do a certain act existed, the circumstances surrounding the act must be examined and the intent determined therefrom. In the case of *State*v. *Huffman,*131 Ohio St., 27, 1 N. E. (2d), 313, paragraph four of the syllabus reads as follows:

> “The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony, of a third person and it need not be. It' must be gathered from the surrounding facts and circumstances under proper instructions from the court. ’ ’

Salter, in order to perpetrate rape, administered a known poison, from a bottle so labeled, which caused the death of Barbara Dunn; but he contends that all he intended was to produce a state of anesthesia that he might accomplish his assault, and that he did not intend to kill. Can he be said not to have had the intent to Mil Barbara when he knowingly and purposely *269used chloroform, knowing as he did that it was poison and that death might ensue from its use? We do not think so.

From such circumstances and from the intent to do the act which resulted in the death, the intent to kill which is contemplated in. Section 12400, General Code, may be established beyond a reasonable doubt.

The rule might be stated thus: In a prosecution under Section 12400, General Code, where the proof establishes beyond reasonable doubt that the accused, in the perpetration of rape, intentionally administered poison knowing it to be such and death resulted therefrom, such accused may be found guilty of murder in the first degree.

Numerous other errors are urged by Salter. We have carefully examined these alleged errors and have found none prejudicial to Salter. He has had a fair trial, and since the trial judges, without the intervention of a jury, determined the factual issues, including the purpose or intent of Salter to kill in the commission of a rape, which judgment was affirmed by the Court of Appeals, it is our opinion that the judgment of the Court of Appeals should be and it hereby is affirmed. ,

*Judgment affirmed.*

Weygandt, C. J., Turner and Zimmerman, JJ., concur.

Stewart, J., concurs in the judgment.

Matthias and Hart, JJ., dissent.

Stewart, J.,

concurring. I concur in the judgment in this case but for reasons differing from those given in the majority opinion. I do not agree that this case is distinguishable from *Robbins*v. State, 8 Ohio St., 131. If the *Robbins case*properly stated the law I *270would concur in the dissenting opinion in the instant -case.

The *Robbins case*construed a statute substantially the same as Section 12400, General Code, involved in the instant case. At the time of the decision in the *Robbins case,*there were five members of this court and the court divided three to two in the decision in that case. The majority construed the statute as does the dissenting opinion in the instant case. The majority there held that where one administers a poison with an intent to produce abortion, but not to kill the woman, and the woman dies from the effects of the drug, the offense cannot constitute murder in the first degree under the criminal statute of this state.

It seems to me that the majority opinion in the *Robbins case,*which is relied upon in the dissenting opinion in the instant case, does not properly construe the statute. I am of the opinion that Section 12400, General Code, properly construed, means whoever purposely and either of deliberate and premeditated malice, or by means of poison purposely, or in purposely perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree, etc. In other words, murder in the first degree results from purposely killing another with deliberate and premeditated malice, or from killing another by -purposely administering poison, or in the purposeful perpetration or attempting to perpetrate rape, etc.

I am in agreement with the dissenting opinion of Judge Swan in the *Robbins case*where he said on page 195:

> “I dissent, however, if it holds that when one comrmits a rape with so much brutality as to cause the death of his victim, he may extenuate the murder and escape capital punishment by showing that he intended only to gratify his lust; or that the killing was an un*271intentional incident resulting from the accomplishment of his main design.

> “Killing another, in the prepetration of rape, arson, robbery, or burglary, is, I hold, murder in the first degree; and every-evil intent and purpose in one engaged in the commission of these high crimes, is, in law, incontrovertibly implied. If, in such cases, the* jury may inquire, and do find that there was no intent to kill, what is the offense if it be not murder in. the first degree? Murder in the second degree requires a purpose to kill. Is it the mild offense of manslaughter?”

In my opinion that part of the *Robbins*case, which-holds that it is necessary to prove a purpose or intent to kill, upon the part of the one who has caused the death of another by purposely administering poison, or in purposely perpetrating or attempting to perpetrate rape, arson, robbery or burglary, should be overruled.

Turner, J., concurs in the foregoing concurring opinion.

Hart, J.,

dissenting. The defendant is guilty of a most atrocious crime, but in my opinion he is not guilty of murder in the first degree, for which the death penalty has been imposed. For that reason, I must dissent from the judgment in this case.

In Ohio, all crimes and degrees of crime are fixed and defined by statute and these statutes must be liberally construed in favor of an accused. In this, case the defendant was indicted under Section 12400,. General Code, for murder by means of poison while in the commission of rape, but under the statute even, where there is a killing by means of poison or in the-perpetration of rape there must -be a specific intent, not only to administer the poison and to perpetrate.*272the rape, but to kill the victim. It is not sufficient to prove that the defendant intentionally administered the poison.

Section 12400, General Code, reads as follows:

> “Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

As applied to the instant case the statute reads:

“Whoever, *purposely, (and** **** by means of poison, or in perpetrating * * * rape, * * *) *hills another*is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy * * *.” (Italics and parentheses supplied.)

In other words, the adverb, “purposely,” qualifies the verb, “kills,” and makes the intent to kill, not only where there is premeditation but where there is an administration of poison, or the perpetration of rape, an ingredient of the crime. The majority opinion indicates the view that intent and purpose to kill is an essential element of the crime charged, but that is not so declared in the syllabus.

This court has held that “purposely” implies an act of the will, an intention, a design to do the act *(Clark*v. *State,*12 Ohio, 483, 40 Am. Dec., 481). Intent to kill, although not an essential element at common law, is in Ohio an essential element of murder in the first or second degree, except in cases arising under Section 12401, General Code (maliciously placing an obstruction upon a railroad, or displacing or injuring railroad equipment, with intent to endanger the passage of a locomotive or a car), or under Section 12402, General *273Code (convict or prisoner in custody of guard or officer, killing such guard or officer). *Jones*v. *State,*51 Ohio St., 331, 38 N. E., 79; *Filmore*v. *Metropolitan Life Ins. Co.,*82 Ohio St., 208, 92 N. E., 26, 137 Am. St. Rep., 778, 28 L. R. A. (N. S.), 675; *Fouts*v. *State,*8 Ohio St., 98; *Kain*v. *State,*8 Ohio St., 306; *Nichols*v. *State,*8 Ohio St., 435; *Hagan*v. *State,*10 Ohio St., 459; *Munday*v. *State,*5 C. C. (N. S.), 656, 16 C. D., 712, affirmed, 72 Ohio St., 614, 76 N. E., 1132.

The leading case in Ohio construing the provisions of Section 12400, General Code, is *Robbins*v. *State,*8 Ohio St., 131, which holds that the word, “purposely,” used in the statute in question qualifies all that follows it and that the killing of another cannot be murder under such -statute unless it is done with intent to kill. In that case the defendant administered a drug to a pregnant woman with intent to procure an abortion but not with the intent to kill, although death resulted from the use of the drug. That case was followed in the case of *Turk*v. *State,*48 Ohio App., 489, 194 N. E., 425, affirmed, 129 Ohio St., 245, 194 N. E., 453, where it was held that in a prosecution for first degree murder in perpetrating arson, there must be shown a purpose and intent to kill before the crime of murder is complete.

In my opinion, there is no evidence in the record in this case of an intent to kill, and, therefore, the conviction of murder in the first degree was erroneous. In the first place, there was no evidence of any motive to kill, and none was ever suggested. On the other hand, all the facts and circumstances disprove an intent to kill. Defendant’s only purpose and intent in administering chloroform, not a basic poison, was to anesthetize his victim so she would make no outcry or disturbance while he accomplished his purpose. True, in handling the chloroform, he was dealing with a poisonous drug, but he made no effort to administer *274it internally or in any manner purposely to injure his victim. From the medical testimony, it appears that the administration of the chloroform would probably not have produced any ill result, except for the fact that the victim had an unusual glandular condition which made the administration of any anesthetic especially dangerous to her. When defendant discovered the unfortunate result of his act he did not attempt to escape but awakened the members of the family, called the fire department emergency squad, applied artificial respiration and made every desperate effort within his power to save her life.

The defendant should be convicted and punished for his crime, but in my opinion there is no evidence in the record showing an intent or purpose ,to kill, and, therefore, no evidence to warrant conviction for murder in the first degree.

Matthias, J., concurs in the foregoing dissenting opinion.