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

(No. 1762

Decided January 24, 1946.)

*Mr. Mathias II. Keck,*prosecuting attorney, and *Mr. Maurice J. Gilbert,*for appellee.

*Mr. A. K. Meek*and *Mr. P. J. Wortman,*for appellant.

Miller, J.

The defendant, George Colley, was charged with murder in the first degree, in that while attempting to perpetrate a robbery he killed one Harry Miller on the morning of December 25, 1937.

The facts pertinent to the issues raised before us disclose that in April 1937, the defendant was declared insane by the Hygiene Commission of Kanawha county, Vest Virginia, and committed to the state *426asylum for the insane at Spencer, West Virginia, from which he escaped and came to Dayton on or about December 10, 1937. On the morning of December 25, 1937, at about 2:30 a. m., defendant encountered Harry Miller on the street and attempted to rob him with a gun acquired several days previous. During the attempted robbery, the deceased resisted and in the scuffle that ensued the gun was discharged with the result that the deceased was shot in the abdomen, from which wound he died later in the day. Miller made a dying statement in which he gave a description of his assailant who Miller said was attempting to rob him. Miller stated that he took a swing at him and was then shot. At another time Miller stated that he “grabbed out” at the assailant before the shooting.

For several weeks after this shooting numerous robberies were committed by this defendant in Montgomery county, which he admitted on his return to Dayton. Several months after the alleged offense the defendant was arrested for an offense in New York state. He plead insanity and after examination by a duly appointed sanity commission he was found to be insane and ordered committed to Mattewan State Hospital, from which he was later released to the Spencer State Hospital, from which he escaped in 1937. On his return to Dayton in 1942 he made a statement to the police in which he admitted the attempted robbery of the deceased, but stated that the discharge of the gun occurred during a scuffle and that the discharge was accidental.

The pleas were not guilty and not guilty by reason of insanity. Upon the plea of insanity, the court appointed a sanity commission composed of three medical experts to examine and observe the defendant, who Avas ordered committed to an insane institution at Dayton for a period of 30 days. This commission reported to the court that the defendant was sane, and *427the court adopted the report, found the defendant to be sane and the case came on for trial.

We now consider the following errors assigned.

The court erred in not ordering a mistrial when the assistant prosecuting attorney was making his opening statement to the jury.

The record discloses that in this opening statement the prosecuting attorney • described numerous other holdups in the city of Dayton beginning the day following the killing of Miller and continuing over the several following weeks, which holdups were admitted by the defendant. The statements as to those crimes were supported by the evidence and were admissible only for the purpose of establishing the identity of the accused. In the opening statement in any case, counsel in good faith may make statements as to what they expect to prove by competent testimony. That was done in this case. The opening 'statement was made in conformity with Section 13442-8, General Code, and was properly made.

The court erred in the admission and rejection of testimony and evidence.

Under this assigned error it is the contention of the defendant that the court erred in admitting the admissions of the defendant in evidence against him since he had been adjudged insane less than one year before the alleged offense and had never been released from the institution for insane at Spencer, West Virginia, from which he had made his escape. There is no presumption of insanity in a criminal case. The law presumes every person over the age of 14 years to be of sufficient capacity to entertain a- criminal intent. Therefore, the presumption is that every such person is sane insofar as criminal responsibility is concerned. *Loeffner*v. *State,*10 Ohio St., 598; 21 Ohio Jurisprudence 78, Section 30. The burden of proof in establishing the defense of insanity rests upon the defend*428ant, but a preponderance of evidence is all that is necessary for that purpose. Even though the evidence introduced by the state tends to show the insanity of the defendant, the burden of proof does not shift. *Rehfeld*v. State, 102 Ohio St., 431, 131 N. E., 712. The admissions of the defendant were properly admitted in evidence. The issues on insanity were submitted to the jury under proper instruction and we are of the opinion that the finding of the jury was fully supported by the evidence.

The court erred in submitting to the jury the question of whether the defendant was guilty of first degree murder, as there was no evidence of murder.

An examination of the record is convincing that the defendant was attempting an armed robbery at the time within the purview of Section 12400, General Code, and the charge was not only properly given but the verdict was amply supported by the evidence. It is the contention of the defendant that the attempted robbery had ceased and that there was then a scuffle over the gun which was accidentally discharged. This was a factual question which was properly submitted to the jury.

The court erred in charging the jury that accidental shooting after attempted robbery had ceased was manslaughter.

We find no error in the charge as given. If there is any testimony supporting a lesser offense it becomes the duty of the court to charge upon it. This was properly done.

We find no prejudicial error in the record and find further that the guilt of the defendant was established by the overwhelming weight of the evidence. The judgment is affirmed.

*Judgment affirmed.*

Hornbeck, P. J., and Wiseman, J., concur.