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[No. 8.

it would have been successful, if the ship had continued to expose only her red light. The steamer's duty of avoiding the ship did not cease because the ship shut in her green light and exposed her red light. It continued in the altered circumstances. As the exigency was sudden and unforeseen, and as the vessels were nearing each other rapidly, promptness of decision and action on the part of the steamer was necessary. Even if the ship had continued to expose only her red light, the steamer might, it may be conceded, have passed her in safety by going on at the same speed as before, without starboarding or with starboarding. But I think it quite clear that if the ship had continued to expose only her red light, the steamer would, having ported, have equally avoided a collision with the ship, especially as, on the weight of the evidence, the steamer's engines were slowed at the time her helm was ported. The steamer adopted this manæuvre of porting and slowing deliberately and wisely. There was no apparent necessity at that time that she should stop and reverse her engines. She discharged her duty of avoiding the ship by proper movements, for the second time. She did this, although the ship was in fault in her movements, in the presence of what she could and should have seen was a steamer. These movements of the steamer had been made, and she was swinging to starboard, under her port helm, when the ship shut in her red light, and exposed only her green light. Seeing this confusion of purpose in the ship, the engines of the steamer were stopped and reversed at full speed. This was proper. There was nothing else for the steamer to do. The ship had twice turned from a course and position in reference to which the steamer had acted, and acted in a way which would have given safety to the ship. Whatever followed the ship had brought upon herself. For what ensued after the ship exhibited her green light the second time the steamer was not responsible. Before the collision the ship made another change, and shut in her green light, and showed only her red light.

A strenuous effort was made on the part of the libellants to induce the belief that the changes by the ship from green to red and from red back to green were produced by the yawing of the ship in the following sea and with the free wind. But it is impossible to believe this, for the green light was visible at first, alone, for four minutes continuously, with no glimpse of the red light, and the green light opened from two points on the starboard bow of the steamer to three and a half points on the same bow before the red light appeared. The effects of yawing would have been sooner observed.

It is earnestly contended, for the libellants, that the red light of the ship, because of which the steamer ported, was in sight for only one minute, and that when the green light of the ship again appeared, the steamer should have kept going ahead, and should have starboarded. The ship was a third time, and in a third position, imposing on the steamer the duty of avoiding her, after the steamer had twice assumed and discharged that duty. The distance between the vessels was diminishing fast, and with this erratic vessel nearly ahead and the danger of collision apparent and imminent, it was the highest duty of the steamer to stop and reverse her engines. She did so, and her engines were reversed at full speed, and, on the evidence, she had got stern way on at the time of the collision.

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If it were to be conceded that the stopping and reversing was an error of judgment, it could not be held to have been a fault, occurring as it did, after what had previously happened, but would be regarded as an error which the libellants could not make a ground of complaint. But it is not to be admitted that it was an error of judgment.

Although the court is asked to condemn the movements of the steamer, no testimony of any expert in seamanship or in navigation is adduced to show that such movements were faulty, or unwise, or imprudent, or unintelligent. The case of the libellants seems to rest on the proposition that it was the duty of the steamer to keep out of the way of the ship, and that it is not established that the ship changed her course. But the steamer could act only in view of what she saw, and what she had a right reasonably to infer from what she saw. Her movements were taken with a reasonable certainty that they would give safety to both vessels. She exercised the highest degree of diligence imposed by the law, in her efforts to avoid the ship. She exercised that diligence discreetly throughout to the end, in all the emergencies which the vacillating movements of the ship threw upon her.

The libel is dismissed with costs.


(To appear in 29 Ohio St.)




1. Where an application is made for a discharge, under section 162 of the Criminal Code

(66 Ohio L. 311), at any term of the court, on the ground that the defendant, who had given bail for his appearance, was not brought to trial before the end of the third term after the indictment was found, such application should be refused, if at such term the state is ready for trial, although the cause cannot be tried for want of time

at such term. 2. Where, on the trial of a criminal cause, a juror is challenged by the defendant for

cause, and the challenge is improperly refused; but such juror is afterward excused on a peremptory challenge, the judgment will not be reversed for such error, if an acceptable jury be empanelled before the defendant has exhausted his right to peremptory

challenges. Mimms v. The State, 16 Ohio St. 221. 3. Intention or purpose to kill may be present in the crime of manslaughter, where the

killing is without malice upon a sudden quarrel. 4. Where death is caused by the use of a deadly weapon, and the circumstances of the

killing are detailed to the jury, some of which tend to disprove a malicious or intentional killing, it is misleading to charge the jury “ that in this case the law raises a presumption of malice in the defendant, and an intent on his part to kill the de

ceased. 5. Where a person in the lawful pursuit of his business, and without blame, is violently

assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant if necessary to save his own life or prevent enormous bodily harm.

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[No. 8.

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ERROR to the court of common pleas of Gallia County.

Several assignments for error set out in the record are not specially mentioned in the opinion of the court.

The case is sufficiently stated in the opinion of the court.

S. A. Nash, for the plaintiff in error. 1. The challenge for cause should have been sustained. Frazie v. The State, 23 Ohio State, 551,

2. The court erred in its charge as to the presumption of intent. Fonts v. The State, 8 Ohio St. 98; Robbins v. The State, Ib. 131; Kain v. The State, Ib. 306; Hagan v. The State, 10 Ib. 459; Shaeffner v. The State, Ib. 598; Rufer v. The State, 25 Ib. 464; 1 Archb. 87, 118, 215; 1 Wharton, 292, 631; Wright, 499; Foster's C. L. 255; Commonwealth v. York, 9 Met. 116; Same v. Webster, 5 Cush. 305; 1 Gray, 61 ; State v. Patterson, 45 Vt. 308; 42 N. Y. 165; 5 Iowa, 433; State v. Murphy, 33 Iowa, 270; State v. Porter, 34 Ib. 131; 10 Mich. 212; Patten v. The People, 18 Mich. 314; Head v. The State, 44 Miss. 731.

The construction given to our statute of murder in the first and second degrees, in making the intent in giving the mortal wound an essential ingredient of the charge, demands of the state undoubted proof of that intent before calling upon the defendant to meet the case made against him.

3. On the subject of “retreating.”_2 Bishop, secs. 624, 632, 633; Stoffer v. The State, 15 Ohio St. 47; Foster's C. L. Cases, 274; 1 East, 271; Oliver v. The State, 17 Ala. 587; State v. Harris, 1 Jones (N. C.), 190; 9 Iowa, 188; 20 Ib. 569; 8 Mich. 150 ; 7 Humph. 429; People v. Sullivan, 3 Selden, 396; State v. Baker, 1 Jones (N. C.), 276; The State v. Kennedy, 7 Nevada, 374 ; 8 Bush, 481 ; 2 Duval, 328; Marts v. The State, 26 Ohio St. 162; 25 Texas, 174; 24 Ind. 151; Shorter v. The People, 2 Comst. 193 ;. Campbell v. The People, 16 Ill. 17; 23 Ib. 17; 24 İb. 241; 14 B. Mon. 615; 18 Ib. 49; State v. Sloan, 47 Mo. 604; 3 Minn. 270; 17 Ala. 587; 32 Conn. 75.

Simeon Nash, also for plaintiff in error, filed a brief urging substantially the same points as those made by S. A. Nash.

John Little, attorney general, for the state. 1. Indictment is good. Loeffler v. The State, 10 Ohio St. 598.

2. The defendant was not prejudiced by the refusal of the court to sustain the defendant's challenge for cause, for the reason that the peremptory challenges were not exhausted. Code of Criminal Procedure,

3. The doctrine stated by the court below, in its charge as to presumptions of malice and intent to kill, is law in Ohio. Silvers v. The State, 22 Ohio St. 99; Wright, 20.

4. As to the doctrine that the burden of proof is upon the defendant to show justification in self-defence, &c., the homicide being established, see Selvers v. The State, 22 Ohio St. 99; 24 Ohio St. 584.

5. The doctrine of “retreating to the wall” is undecided in Ohio. The law, it seems to me, should be decided to be that which would best protect human life.

McILVAINE, J. The plaintiff in error was indicted for the crime of murder in the first degree at the February term, 1872, of the court of common pleas of Gallia County. At the succeeding term, in May of the

sec. 90.

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(No. 8.

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same year, a trial was had which resulted in a verdict of guilty of murder in the second degree. This verdict was set aside by the court, and the defendant was admitted to bail. At the March term, 1876, he was again

. put upon trial, convicted, and sentenced for murder in the second degree.

At the several terms of the court intervening between May, 1872, and the October term, 1875, the cause was continued without objection on the part of the defendant, who, from time to time, gave bail for his appearance as required by the court.

At the last named term, to wit, on the 13th day of September, 1875, the defendant moved the court for his discharge under section 162 of the Criminal Code (66 Ohio L. 311), which provides as follows: “If any person indicted for any offence, who has given bail for his appearance, shall not be brought to trial before the end of the third term of the court in which the cause is pending, held after such indictment is found, he shall be entitled to be discharged, so far as relates to such offence, unless the delay happen on his application, or be occasioned by the want of time to try such cause at such third term.” Two days thereafter, to wit, on the 15th of the month, the same being the last day of the term, and the state being then ready to proceed to trial, this motion was overruled by the court and the cause continued, for the reason that there was no time to try the cause at that term.

When the above section is considered with section 163, following, it is clear that a defendant cannot be discharged for the reason stated, except upon an application to the court during a term thereof; and when an application is made at a term when the state is ready to proceed to trial, but the cause cannot be tried at such term for want of time, the discharge should not be ordered. See Ex parte McGhehan, 22 Ohio St. 442.

2. Upon the last trial, several persons named in the special venire for thirty-six jurors were examined under oath as to their qualifications as jurors, who stated severally that they had formed and expressed an opinion as to the guilt or innocence of the defendant from reading a report of the testimony of witnesses offered on the former trial of the case. Thereupon the defendant challenged such jurors for cause. But it appearing from further examination of such jurors that they felt themselves able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court refused the challenges for cause. These challenges should have been sustained. Such jurors are not rendered competent by section 134 of the Criminal Code, as amended February 10, 1872. 69 Ohio L. 11; Frazie v. The State, 23 Ohio St. 551.

It appears from the record, however, that each of these objectionable jurors was afterward excused on a peremptory challenge, and that a full panel of impartial and acceptable jurors was obtained from the persons named in the special venire, before the defendant had exhausted his right of peremptory challenge, so that, in fact, no prejudice resulted to defendant from such erroneous ruling of the court. See Mimms v. The State, 16 Ohio St. 221.

3. The alleged death was caused by a shot from a pistol, and the testimony tended to show that the homicide was committed by defendant upon a sudden quarrel, and in defence of his person and his property.

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(No. 8.


The charge in the indictment included murder in the second degree and manslaughter. The court properly defined these crimes to the jury substantially in the words of the statute, namely: “ That if any person shall purposely and maliciously, but without deliberation and premeditation, kill another, every such person shall be deemed guilty of murder in the second degree ;” and, “That if any person shall unlawfully kill another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter.” Whereupon the court said to the jury, “ You will see that the difference between manslaughter and murder in the second degree is the absence of malice and purpose to kill.” And thereupon the court proceeded to charge as follows: “If you find from the evidence that the defendant used a deadly weapon in this case, and that death ensued from the use of such deadly weapon, then the law raises the presumption of malice in the defendant, and also an intent on his part to kill the decedent."

We can well see how the jury, under these instructions, may have been led to convict the defendant of murder in the second degree, though guilty of manslaughter only, or even though not guilty of any crime whatever. It was plainly inferable, from the first instruction above stated, that the defendant's crime was not manslaughter, if the killing were intentional. Such is not the law of manslaughter. If the killing be unlawful, but without malice, as upon a sudden quarrel, although intentional, the crime is nevertheless manslaughter only. It is true that the jury must have found the presence of malice as well as purpose to kill; but having first found the purpose to kill, as we may suppose, they entered on the inquiry as to malice under the influence of an instruction, that the defendant was guilty of murder or not guilty of any crime whatever: thus exposing the defendant to a moral influence against him, which should not have had lodgment in the minds of the jurors.

But the latter instruction, though not so clearly erroneous, was more palpably prejudicial to the defendant as misleading to the jury. As an abstract proposition, where the circumstances of a homicide are not known, further than the mere fact that the death was caused by the use of a deadly weapon, we do not deny that the jury may, from such fact alone, infer both malice and a purpose to kill. But where the attending circumstances are shown in detail, some of which tend to disprove the presence of malice or purpose to kill, it is misleading and erroneous to charge a jury that, in such a case, the law raises a presumption of malice and intent to kill from the isolated fact that death was caused by the use of a deadly weapon. In such case the presence of malice or intent to kill must be determined from all the circumstances proven, including, of course, the character of the weapon.

indeed be said, with much reason, that the use of a deadly weapon in the taking of life raises the same presumptions whether other attending circumstances be shown or not; and that when other facts and circumstances are shown, they either strengthen or rebut the presumptions so arising from the character of the weapon.

The question before us, however, is not one of mere logic; but rather, how would jurors of ordinary understandings interpret and reason upon such a charge? The instruction was, “ If you find from the evidence

It may

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