The State of Ohio, Appellee, v. Mastel, Appellant, 26 Ohio St. 2d 170

Schneider, J. Defendant was indicted on three counts, only one of which is involved in this appeal, to-wit: unlawfully and maliciously shooting one Gary Crago with intent to wound him, to which defendant pleaded not guilty. The evidence showed that defendant drove to the home of Gary in order to talk over the alleged mistreatment of defendant’s children and estranged wife by Gary. Defendant testified that he took a loaded .45 caliber pistol with him in his automobile for protection. While defendant and Gary were talking, the latter’s father, Donald Crago, drove into the driveway and parked beside defendant’s car.

Defendant, who by now was holding the .45 caliber pistol in his hand, ordered Donald out of his car, telling him to stand back until he had finished talking with Gary. Both Cragos and their wives testified that defendant had struck Gary in the face with his hand or fist prior to the shooting, and defendant acknowledged striking Gary at least once in the mouth with the loaded gun itself. When the altercation ended, three shots had been fired from the .45 pistol, with the last two hitting Gary in the left leg, and the weapon was still in defendant’s hand.

Defendant claimed self-defense and that the shooting was accidental. Before the court’s general charge, and thereafter, defendant requested a jury instruction on a lesser included offense of assault and battery, which request was refused. However, the court apparently charged on assault with a dangerous weapon because the jury returned a verdict of guilty of that crime. The Court of Appeals affirmed the judgment entered upon the verdict.

Defendant argues that the jury should have been permitted to consider the offense of assault and battery and that the trial court’s refusal, over objection, so to charge resulted in error prejudicial to him. He relies upon Windle v. State (1921), 102 Ohio St. 439, and upon the more recent State v. Notion (1969), 19 Ohio St. 2d 133, which was announced subsequent to defendant’s trial. However, the thrust of both cases is such as to uphold the action of the trial court in its refusal to give the requested charge, and we affirm.

In Windle, supra (102 Ohio St. 439), this court remanded for a new trial in a situation involving an indictment charging, in separate counts, shooting with intent to kill and shooting with intent to wound, where the trial court had refused to charge on the lesser included offense of assault and battery. Although this would appear to substantiate defendant’s position, it does not. The difficulty lies in the assault with the dangerous weapon statute (R. C. 2901.241), which was enacted as late as 1959, 38 years after Windie. That

section requires the same elements of proof as are required to establish assault and battery, with the added element of the dangerous weapon. No comparable

section existed in 1921. In State v.

Nolton, supra (19 Ohio St. 2d 133), this court indulged in an extended evaluation of different degrees of offenses, and the reasons for appropriate charges, stating that, “. . . if the trier could reasonably find against the state and for the accused upon one ... of the elements of the crime charged and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense, then a charge on the lesser included offense is both warranted and required, not only for the benefit of the state but for the benefit of the accused.” Applying that rationale to the present fact situation, the only element which here differentiates the offense of aggravated assault (the verdict returned) from assault and battery (the charge requested) is the use of the dangerous weapon.

Since defendant’s own testimony shows that he not only shot Gary Crago, but also struck him in the mouth with a loaded .45 caliber pistol, it is not reasonable that the jury could find that all the elements of assault and battery were proved, and yet not convict on the charge of assault with a dangerous weapon. Conversely, if the jury had accepted defendant’s claim that he acted in self-defense, his acquittal of the principal offense and his conviction upon any lesser included offense would be unreasonable.

Apparently, the jury did accept the claim that the gun fired accidentally, thus eliminating the elements of malice and of a specific intent to wound. However, the evidence fully supports a finding of guilty of assault with a dangerous weapon, based upon defendant’s possession and use of the gun at the time it fired resulting in Gary being struck in the leg by two bullets. Since the bullets which struck Gary admittedly came from the gun in the possession of the defendant, we think it clear that under the facts of this case defendant could not possibly have been guilty of assault and battery, R.

C. 2901.25, at that particular time, without also being guilty of aggravated assault, R. C. 2901.241. For this reason, the trial court’s refusal to charge on simple assault and battery was not error. Judgment affirmed. 0’Neill, C. J., Stern and Leach, JJ., concur. Herbbrt, J., concurs in the judgment. Duncan and Corrigan, JJ., dissent.