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

(No. 3781

Decided January 20, 1945.)

*Mr. Ralph J. Bartlett,*prosecuting attorney, and *Mr. Forrest F. Smith,*for appellee.

*Mr. Frank H. Ward,*for appellant.

By the Court.

Appellant complains of error in the trial court’s refusal at the end of its charge to further instruct the jury that it might find the appellant guilty of the lesser offenses of robbery, *i. e.,*assault and assault and battery.

*113Appellant further asserts that he offered proof in his own behalf that he was not armed at the time of the commission of the offense charged; and that he was then engaged in the collection of a debt due him by the prosecuting witness. He testified that he did have a piece of cardboard in his inside right coat pocket, which he at the time shifted to his right side pants pocket. Three witnesses testified that it was a revolver, not cardboard. No matter which it was, it is evident from their testimony and that of the appellant that the prosecuting witness was put in fear of his life. The appellant states that he deliberately left the prosecuting witness in that state of mind. It is, therefore, certain that the appellant was at least guilty of an assault. There was no evidence of a battery of any kind; hence, a charge on that offense would have been improper. It is also clear that had the jury concluded that he did not have a gun, and that he was not just merely collecting a debt, but through threat and fear was taking from the prosecuting witness the sum demanded, it might then have properly found the appellant guilty of robbery. The evidence of the state would have proved either one of three offenses, that is, armed robbery, robbery or assault.

Appellant urges that the court’s refusal to charge upon a lesser offense deprived him of his right to have the jury find him guilty of these lesser offenses, in that it either had to find him guilty of the crime charged or acquit him. The evidence clearly established that appellant was guilty of the offense charged or some degree thereof, and it might well have been that the jury went the full extent and found him guilty as charged, rather than acquit him.

The rule of *Bandy*v. *State,*102 Ohio St., 384, 131 N. E., 499, 21 A. L. R., 594, and kindred cases, is that lesser offenses are only to be charged upon, where there *114is evidence before the jury from which it may properly find the accused guilty of a lesser offense. When there is no such evidence, the lesser offense ought not to be charged.

But when such evidence appears, the lesser offense must be charged and the jury given an opportunity to determine the degree of an accused’s offense. When it is denied this right of choice by a court’s refusal to charge, then the court has usurped the jury’s prerogative, not only to determine the degree of the offense, but to pass upon the credibility of witnesses which lays within its exclusive province.

It follows that the judgment entered on the jury’s verdict must be reversed and the cause remanded for a new trial.

*Judgment reversed.*

Hornbeck, P. J., Geiger and Sherick, JJ., concur.

Sherick, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.