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

(No. 1939

Decided November 29, 1947.)

*Mr. Mathias H. Hech,*prosecuting attorney, and *Mr. Robert Schroeder,*for appellee.

*Mr. Thomas B. Talbot*and *Mr. J. H. Patricoff,*for appellant.

Wiseman, P. J.

This is an appeal on questions of law from a judgment of'the Common Pleas Court of Montgomery county, which rendered judgment on the verdict in a case in which the defendant was indicted, tried and convicted of murder in the second degree.

The defendant, appellant herein, assigned as error: *338That the verdict is contrary to law; that the verdict is against the jnanifest weight of the evidence; that the trial court failed to modify the verdict in accordance with the evidence; that the evidence did not warrant a conviction of murder in the second degree; and other errors apparent on the face of the record. The several errors assigned are considered together since the principal question for determination is whether there was 'sufficient evidence to warrant a conviction of murder in the second degree.

The defendant contends that the evidence does not show him to be guilty of the crime charged and for which he was convicted but proves the lesser crime of manslaughter in the first degree. The contention is made that the trial court, under the provisions of Section 13449-1, paragraph 4, General Code, should have modified the verdict accordingly and, also, that this court should modify the verdict and pass sentence on the verdict as modified. Section 13459-6, General Code.

Is the evidence sufficient to support the verdict? Under a plea of not guilty the defendant attempted to show that he shot and killed the decedent in self-defense. Apparently the jury found that the evidence was insufficient to support such defense. The state at all times carried the burden to prove- the defendant guilty of the crime charged beyond a reasonable doubt. There is ample evidence to support the verdict.

The evidence shows that on the afternoon in question the defendant, the decedent, Rufus Wright, and two other men came out of a cafe and entered upon a property in the rear of the cafe where they engaged in shooting craps. An argument ensued and the occupant of the property ordered them away. Thereupon they walked down an alley, crossed the street and entered a vacant lot. The evidence shows that *339the defendant claimed that the decedent had taken his money in the crap game. The decedent was unarmed and at the time the shot was fired was at least ten feet from the defendant. There is evidence from which the conclusion may be drawn that immediately before the shooting the decedent was in the act of walking away from the defendant. The bullet which killed the decedent entered the breast on the left side and lodged in the ribs on the right side. This fact lends support to the contention that the decedent was not facing or approaching the defendant at the time the shot was fired. On the other hand, it supports the. contention that the deeerdent was in the act of walking away and had turned slightly to look toward the defendant at the time the shot was fired. Immediately after firing the shot the defendant threw the gun away, left the scene of the crime, and did not return to his home. He was apprehended the following day at the home of a' friend.

On cross-examination the defendant testified as follows :

“Q. You did intend to shoot him through, didn’t you? A. Yes, sir.

* * * # *

“Q. It was your-purpose to shoot? A. Yes, sir.

# * * * #

“Q. Then the first time and the first thing you had trouble with Rufus about was over the thirty-five cent bet? A. Yes, sir.

“Q. And you won that bet? A. Yes, sir, I did.

“Q. And you have gambled before, haven’t you? A. Yes, sir.

“Q. Quite a bit? A. Yes, sir.

“Q. And when you win a bet you want to collect it, don’t you ? A. When I win I like to collect it.

“Q. And Wright didn’t pay you, did he? A. No, sir, be didn’-t.”

*340Whoever purposely and maliciously kills another is guilty of murder in the second degree. Section 12403, General Code. There is evidence from which the jury could conclude that the defendant purposely killed the decedent. Proof that a killing was done purposely may be deduced from the attendant circumstances, the type of instrument used, the manner of its use and its tendency to destroy life when used in that manner. In the case at bar the evidence shows that the defendant used a .32 caliber revolver, a deadly weapon. The jury could reasonably deduce from the facts proved that the killing was done purposely and willfully.

Was the killing malicious? Only simple malice is required to be shown in murder in the second degree, and it may be implied from the facts proved. Simple malice may be presumed by proof of cruel acts and inhuman and atrocious conduct which indicates a reckless disregard of human life, although a deliberate design of taking life is absent. When a killing under such circumstances is' established ■ our law raises the presumption of simple malice or such malice as under our statute would constitute murder in the second degree. *Lindsey*v. *State,*69 Ohio St., 215, 69 N. E., 126; 21 Ohio Jurisprudence, 39, 60. Under the facts in this case simple malice would be presumed.

We can not find that the verdict is against the manifest weight of the evidence; neither is the verdict contrary to law. The court can not find in the evidence sufficient support for an order modifying the verdict.

We are of the opinion that the defendant had a fair trial arid that substantial justice has been done.

Finding no error in the record, the judgment is affirmed.

*Judgment affirmed.*

Miller and Hornbeck, JJ., concur.