## Facts

- Jonas Fouts and Philip Fouts were jointly indicted in Morgan County, Ohio, for the killing of Benjamin P. Scott on October 28, 1856.
- Jonas was charged as an aider and abettor to first-degree murder and was tried separately after severance.
- At trial, the prosecution introduced testimony about a post-examination jailhouse conversation in Jonas’s presence in which Philip admitted that he and Jonas committed the murder and Jonas assented and participated.
- Jonas was convicted of aiding and abetting murder in the first degree and sentenced to death.
- Jonas sought appellate review by writ of error, raising challenges to indictment sufficiency and several trial procedures, including confession evidence and jury selection.

## Issues

1. Whether failure to provide the accused a true copy of the indictment at least twelve hours before trial in a capital case can be raised after trial, or must be objected to before trial.
2. Whether the accused in a first-degree murder prosecution is entitled to a pretrial list of grand jurors.
3. Whether the State may exercise peremptory challenges during jury selection in a first-degree murder case.
4. Whether a confession is inadmissible because it followed advice that, if guilty, confessing would not worsen the accused’s condition and that he should tell the truth.
5. Whether an indictment for first-degree murder is defective if it alleges the killing was done “purposely and of deliberate and premeditated malice” but does not specifically aver a purpose or intent to kill (or to inflict a mortal wound) as required by statute.

## Decision

- The court held that the statutory right to receive a copy of the indictment in a capital case is waived unless the defendant objects before trial; it cannot be asserted as error after trial.
- The court held there was no legal requirement to furnish the accused a list of grand jurors before trial.
- The court held the prosecutor was entitled to exercise two peremptory challenges in impaneling the jury in a first-degree murder case.
- The court held confession testimony was not rendered incompetent solely because the accused was advised that confessing, if guilty, would not make his condition worse and that he should tell the truth.
- The court held the indictment was substantively insufficient for first-degree murder because it did not directly and specifically aver the statutory purpose or intention to kill (or intent to inflict a mortal wound).
- The conviction was reversed and the cause remanded for further proceedings.

## Legal Principles

- Procedural protections requiring pretrial service of an indictment copy in capital cases must be timely asserted; failure to object before trial constitutes waiver.
- Absent statutory authorization, a defendant has no right to receive a pretrial list of grand jurors in a murder prosecution.
- In first-degree murder trials, the prosecuting attorney may exercise peremptory challenges as permitted by statute (two in this case).
- A confession is not inadmissible merely because it follows general advice to tell the truth, without a promise of benefit or threat of harm sufficient to overcome the will.
- When a criminal statute makes a specific mental state an ingredient of the offense, the indictment must contain a direct and specific averment of that element; proof at trial or conclusory charging language cannot cure its omission.
- Language alleging an assault resulting in death was done “purposely and of deliberate and premeditated malice” does not necessarily allege a purpose or intent to kill under the statutory element.

## Conclusion

The court reversed a first-degree murder conviction because the indictment failed to plead the statutory “purpose to kill” element with the specificity required for crimes whose definitions are fixed by statute rather than common-law forms, while rejecting other claimed procedural and evidentiary errors.


Fouts v. State, 8 Ohio St. 98 (Ohio 1857)