Opinion Per Curiam.

sion order the company to pay him compensation from September 15, 1915. On the hearing the commission found that the proof submitted by the claimant in support of his claim "does not establish the fact that the disability described in said application is due to an injury sustained by him while in the course of his employment," and, therefore, denied his application.

The claimant appealed to the common pleas court on April 20, 1916, and at the January term, 1917, to-wit, January 8, 1917, the cause was, on motion of the plaintiff, dismissed at his costs by the court of common pleas. Some eleven months afterwards, about December 30, 1917, the claimant filed his application with the Industrial Commission for a rehearing of his claim, and such proceedings were thereafter had before the commission with reference thereto that the application was dismissed by the commission.

The plaintiff then appealed to the common pleas court again, where a motion was filed to dismiss the appeal, which was overruled by the court. On the final hearing of the cause in the common pleas court, judgment was rendered for the plaintiff, and, on error, this judgment was affirmed by the court of appeals. This proceeding is brought to reverse the judgment below.

On the authority of Industrial Commission v. Glenn, 101 Ohio St., 454, the motion to dismiss the appeal filed by the defendant should have been sustained for the reasons given in the opinion in the

Statement of the Case.

Glenn case. For these reasons the judgments of the courts below will be reversed.

Judgments reversed.

MARSHALL, C. J., JOHNSON, ROBINSON, JONES and MATTHIAS, JJ., concur.

BANDY V. THE STATE OF OHIO.

Criminal law-First degree murder - Lesser offenses included, when-Evidence governs charge to jury, when - Murder in perpetration of robbery-Section 12400, General Code - Accused entitled to acquittal, when - No evidence of lesser offense - Refusal to instruct jury not error, when.

1. Murder in the first degree, literally considered, necessarily includes murder in the second degree and manslaughter. Whether in an indictment for murder in the first degree in the perpetration of a robbery, a charge is warranted as to murder in the second degree, or manslaughter, depends, however, not merely upon whether or not these are literally included in the formal charge, but upon whether or not there is any evidence tending to support a charge of murder in the second degree, or manslaughter.

2. If the indictment charges murder in the first degree in the perpetration of a robbery, under Section 12400, General Code, and there is no evidence tending to support a charge of murder in the second degree, or manslaughter, as distinguished from murder in the first degree, then the defendant, upon the failure of proof as to murder in the first degree, is entitled to an acquittal, and, in such case, it is not error for the court to refuse to charge either murder in the second degree or manslaughter.

(No. 16794 Decided May 3, 1921.)

ERROR to the Court of Appeals of Franklin county.

Counsel for Parties.

The plaintiff in error, Henderson Bandy, was indicted by a grand jury of Franklin county for murder in the first degree, under Section 12400, General Code, the pertinent part of which reads:

ing

"Whoever, purposely, *

* robbery

guilty of murder in the first degree."

in perpetrat

kills another is

To that indictment the plea of not guilty was entered. Upon the trial, the judge charged the jury on murder in the first degree, and refused to charge or furnish verdict forms to the jury for any lesser degree of homicide.

The jury returned a verdict of guilty of murder in the first degree as charged, and recommended mercy. Motion for a new trial was filed, based upon numerous minor errors in the admission and rejection of evidence and upon the major error of the court's refusal to charge on the lower grades of homicide.

New trial was denied by the court of common pleas. Error was prosecuted to the court of appeals, which affirmed the judgment below.

Error is now prosecuted to this court to reverse that judgment.

Mr. Matthew L. Bigger and Mr. John H. Cooper, for plaintiff in error.

Mr. John R. King, prosecuting attorney; Mr. Jos. A. Godown, assistant prosecuting attorney, and Mr. James C. Nicholson, for defendant in error.

Opinion, per WANAMAKER, J.

WANAMAKER, J. The one big question involved in this case arises out of the charge and refusal to charge of the common pleas court upon trial on an indictment of murder in the first degree committed in the perpetration of a robbery, under Section 12400, General Code.

The ruling of the court on this question appears from a very full and exhaustive opinion on the motion for a new trial, based chiefly on the alleged error referred to above.

The view of the trial judge in that respect is best stated in his ruling on the motion for new trial, which is in the following language:

"Where an indictment charges a defendant with purposely killing another while perpetrating robbery upon him, no other class of homicide being charged, and the evidence tending to prove no other grade of the crime, no instruction should be given the jury concerning murder in the second degree, or manslaughter, nor should verdicts therefor be submitted to the jury."

For the purpose of clarifying earlier decisions of this court, which undoubtedly have left the state of the law in more or less confusion, this case was admitted in the hope that a further study of the law would lead to a simplification of its status and a reconcilement of those earlier decisions, which have been largely responsible for the present uncertainty of the law; all with a view to conserve the legal rights of both the state and the accused.

The charge of the court to the jury should naturally and necessarily include a simple and orderly statement of the issues of fact and the rules of law

Opinion, per WANAMAKER, J.

applicable thereto and helpful to the jury in the determination of those several issues of fact, upon which their verdict is to be based.

.

But, what are the issues of fact with which the jury are to deal in the case at bar, and from whence do they arise?

In civil cases, the issues of fact tried by the jury arise out of the pleadings. This is a sound and salutary rule.

The principle is that all parties in such cases should be advised in advance as to the issues thereof, and that, thereafter, unless amended, the evidence must be confined to the issues so raised.

But, in criminal cases, the rule is naturally and necessarily different from that in civil cases.

The indictment, information, or affidavit in a criminal prosecution, necessarily confines the state to the charge made against the defendant, in order that the defendant shall know, as the constitution provides, "the nature of the accusation against him."

But the defendant is not limited or confined to a literal plea of not guilty. He may interpose any pertinent defense in the evidence, relying either upon the evidence of the state, or upon the evidence that he himself may tender to support his defense, or upon both, however numerous his defenses may be. Among the very common defenses are those of alibi, self-defense, insanity, accident, drunkenness, or any other defense the defendant may see fit to interpose which the law has recognized as proper and adequate in whole or in part, and such defenses in the course of our legal procedure inherently and