in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree," etc.

Section 12403, General Code, provides:

"Whoever, purposely and maliciously kills another, except in the manner described in the next three preceding sections, is guilty of murder in the second degree and shall be imprisoned in the penitentiary during life."

Section 13692, among other things, provides:

"When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof. If the offense charged is murder, and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime, and pronounce sentence accordingly."

Section 13583 provides:

"In an indictment for murder in the second degree or manslaughter, the manner in which, or the means by which the death was caused need not be set forth. It shall be sufficient in an indictment for murder in the second degree to charge that the defendant did purposely and maliciously, and for manslaughter that the defendant did unlawfully, kill the deceased."

In the case of Robbins v. State, 8 Ohio St., 131, in the last paragraph of the syllabus, it is held:

"The statute having required that, 'in all trials for murder,' the jury shall, if they find the defendant guilty, ascertain from the evidence before them the degree of the homicide, it is error for the court to instruct the jury, on the trial of an indictment

for murder in the first degree by means of poison, that, in this kind of a case, murder is not of different degrees, and that, therefore, if they find the defendant guilty as he stands charged in the indictment, they must return a verdict for murder in the first degree."

This decision was rendered by a divided court, but it has never been overruled or modified by any subsequent decision of our supreme court.

In some jurisdictions this decision has been criticised and disapproved and in others it has been followed.

Counsel for defendant in error claims that our statutes have been materially changed since the decision in the Robbins case.

At the time of the decision of our supreme court in the Robbins case the statute providing for a conviction upon included offenses applied to trials in murder cases.

The statute was subsequently amended so as to apply to all cases of included offenses.

We do not think this amendment changed the effect of the law as to murder cases.

The Robbins case was approved in the case of Adams v. State, 29 Ohio St., 412, and it was there held:

"Under section thirty-nine of the crimes act, it is within the lawful province of the jury, in all trials for murder, to determine the grade of the crime."

The case of Lindsey v. State, 69 Ohio St., 215, was a case wherein the defendant was indicted for murder in attempting to commit a robbery, and it was held in the third paragraph of the syllabus:

"An indictment, which charges, in proper form, an attempt to commit robbery, and then avers that the defendant, with others, in such attempt, did unlawfully and purposely, by means of a revolver loaded with gunpowder and a leaden bullet, shoot the deceased, with intent to unlawfully and purposely kill and murder him, and did, by means of the shooting, strike, penetrate, and wound him, with intent unlawfully and purposely to kill and murder him, thereby giving him a mortal wound from which he instantly died, and that by these means, they did unlawfully, purposely, and in an attempt to perpetrate a robbery, kill and murder the deceased, sufficiently charges murder in the second degree, although the word malice is not employed in the indictment in describing the act."

In a collateral proceeding of habeas corpus, jurisdiction is determined from the scope of the indictment in the original case. We do not have the evidence taken in the trial in the Butler county case before us, nor do we know from the record what occurred in the trial of that case. We do know, however, that a sufficient indictment for murder in the first degree was returned against the defendant in error in Butler county, Ohio, and that he was convicted and sentenced in Butler county, Ohio, for murder in the second degree.

Various cases have been cited which involve the charge of the trial court upon the evidence in cases involving murder by poison and also in cases involving murder in the perpetration of robbery.

We think the case at bar is distinguishable from cases where the trial court hearing the evidence is

required to submit an appropriate charge upon the evidence which has been introduced.

We have not been referred to any case where a verdict of murder in the second degree under an indictment similar to the one under consideration has been held to be a nullity.

The case of Dresback v. State, 38 Ohio St., 365, is relied upon by counsel for defendant in error. In this case it is held:

"On the trial of an indictment for murder in the first degree, charging the accused with purposely killing another by administering poison, the evidence tending to show no other grade of offense, it is error to charge the jury to the effect that if they find the accused guilty their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter. And where the verdict is returned for a lower grade of homicide than murder in the first degree, a new trial should be granted, where it appears from the evidence that a verdict of acquittal might have been rendered had the jury been properly instructed."

The Dresback case involved the irregularity of the trial.

There was a conviction of murder in the second degree in the Dresback case, and in the syllabus and also in the opinion of that case it is clearly held that the verdict of murder in the second degree was ground for a new trial.

In order to sustain the contention of counsel for defendant in error the court in the Dresback case should have held that the verdict of murder in the second degree was a nullity, and should have dis

Thomas v. Cowdrey.

[13 Ohio charged the defendant. We think the fact that the court in the Dresback case ordered a new trial is a sufficient answer to the claim of counsel for defendant in error that such verdict and sentence thereon were null and void.

The case of State v. Schaeffer, 96 Ohio St., 215. is a case which arose upon the evidence. The court held that where the death of the party struck by the automobile was instantaneous there was no element of assault and battery.

On page 228 of that opinion the Lindsey case, above referred to, is mentioned, but the same is not disapproved or even criticised in so far as different degrees of murder are concerned.

We have carefully examined the authorities cited in the very exhaustive briefs which have been filed by counsel, but will not attempt to discuss or review such authorities in detail.

It should be noted that error was prosecuted to the court of appeals of Butler county from the conviction and sentence of the common pleas court of Butler county.

The judgment of the court of common pleas was affirmed by the court of appeals. (Cowdrey v. State, 11 Ohio App., 291.)

An application to file a petition in error seeking the reversal of the judgment of the court of appeals of Butler county was presented to the supreme court, and such application was rejected.

The fact that the supreme court refused leave to file a petition in error from the judgment of affirmance of the original case is some indication of the views of the supreme court upon the validity of the sentence in question.