Opinion
Decided November 2, 1931.
Criminal Law — Second degree murder — Charge to jury prejudicial — Evidence on self-defense issue excluded, and jury not instructed thereon.
Where a woman charged with murder in the second degree testifies that the decedent shot himself, and other witnesses testify as to the statements made by her which, if true, prove that she shot and killed the decedent, and the statements so made by her, if true, also prove that the shooting by her was in self-defense, it is error for the court to exclude from the jury the issue of self-defense.
ERROR: Court of Appeals for Sandusky county.
Messrs. Stahl, Stahl Stahl, for plaintiff in error.
Mr. F.H. Buckingham, prosecuting attorney, and Mr. A.V. Baumann, Jr., for defendant in error.
An indictment charging the plaintiff in error, Bertha M. Ickes, wife of Henry M. Ickes, with murder in the second degree was returned by the grand jury of Sandusky county on July 2, 1931, the charge being that on the morning of June 25, 1931, Henry M. Ickes was shot by Bertha M. Ickes. Mrs. Ickes pleading not guilty to this indictment, a trial was had in the court of common pleas, resulting in a verdict of guilty of manslaughter. A motion for a new trial having been filed and overruled, the plaintiff in error was sentenced to serve a term of not less than two nor more than twenty years in the Ohio Reformatory for Women at Marysville.
By her petition in error filed in this court she prays for a reversal of this judgment, contending that the trial court erred to her prejudice in failing and refusing to charge the jury as to the defense of self-defense.
Plaintiff in error and Henry Ickes were married in 1917, and upon petition of plaintiff in error were divorced in 1927. After the divorce they continued to live together as man and wife. At the time of his death he was about seventy years of age and she was fifty-four.
Ickes was shot on the morning of June 25th, either by himself or by the plaintiff in error. No one witnessed the shooting except Mr. and Mrs. Ickes, and the only account of what occurred is that given by Mrs. Ickes on the witness stand and the statements said to have been made by her to others. Her testimony and the statements accredited to her are in conflict. She testified in substance that Mr. Ickes left the house early on the morning of June 25th, returning an hour or two later; that Ickes "came in and sat down on the edge of the bed and said `Bertha' and I said `What' and he said `Come on and take a drink with me' and he had a pint; he had four pints of hootch in a little square carton and he took one of them bottles and he took a drink and he handed it to me and I took a drink and I said `Don't drink any more' and I said `Go to sleep' and then he took off his wooden leg and he set it up against the corner there as he always did when he undressed to go to bed and he laid back in the bed and I went in the front bedroom and he says `What did you do with my whiskey?'"
She testified that she hid the whiskey, and said to Ickes, "You are drunk and you aren't going to get more;" that he "had his left leg on the edge of the bed and he grabbed me by the throat." She testified that he threatened to kill her, and that "he choked me. I don't know how long, and I tore his hands loose," and then "he grabbed his wooden leg with his right hand and I turned the blow off but it hit me on the head and I hit my head on the edge of the floor and I fell back in the bedroom. I raised up and when I raised up he was coming in and had a gun in his hand. Then I got up and grabbed hold of his wrist and his hand and I know, I don't think, I know I did not touch the gun and he said `I will kill you, I will kill you, and then I will end it all' and then there was a shot and then he staggered, after that he sat on the edge of the bed and laid the gun on the Victrola." Counsel then undertook to show that Ickes, when intoxicated, was vicious and ill-tempered, and said to the court: "We claim self-defense." After some discussion, all of which occurred in the presence of the jury, the court said:
"Self-defense is not in the case. If he fired the shot, then self-defense is not in the case. If this defendant did not fire the shot, she can not be convicted."
Later, the record discloses, counsel for the accused again sought to show that when Ickes was intoxicated he was vicious and cruel, stating to the court:
"I am going on the theory that we have a right to any defense, and if it should be found that it had been any one of three things, suicide or accidentally got shot, then we have the right to claim self-defense."
The court sustained the objection to the proposed question. Exceptions were noted, and offer to prove made. The uncontradicted evidence is that there were bruises or abrasions on the face, head, and neck of Mrs. Ickes. A physician who saw Mrs. Ickes on the day of the shooting testified:
"I noticed bruises around her face and neck and on the side of her head, contusions, rather severe."
A photograph of Mrs. Ickes, introduced in evidence, shows a blackened eye and marks on her neck. The physician above quoted said of this picture that it was a good picture, but did not show all of the discolorations.
The written statement taken by police officers on June 25th, and signed "Mrs. Bertha M. Ickes," reads as follows:
"This morning my ex-husband left the house sober, in about an hour he returned and was drunk and he had with him four pints of liquor. I tried to talk to him and keep him from drinking the whiskey. He hit me, with his wooden leg, in the face. I tried to protect myself so I went and got his gun and shot him once and that is all I did shoot. After the shooting I laid the gun on the Victrola."
The three police officers present at the taking and signing of this statement testify to the conversation then had with Mrs. Ickes, the substance of which was as recorded in the statement. One of them testified:
"I said `What happened between you and your husband,' and she answered, `This morning he left the house and about two hours later he returned and he was very drunk, and he had four pints of whiskey, and he started drinking more and I started to stop him and he hit me in the face with his wooden leg and I tried to protect myself and I took the gun and shot him, and I shot him only once.'"
A Mr. Sackrider, who called at the Ickes' home to see Mr. Ickes very soon after the occurrence, testified that he found Mr. Ickes lying in bed and that "he was not wearing his wooden leg at that time;" that Ickes said "she had shot him" and that Mrs. Ickes also said "I shot him." Another witness testified that he asked Ickes who shot him "and he said he did it himself." And still another witness testified that he said to Ickes, "Are you shot," and he said in a "kidding" way, "Yes, half shot;" that "Salty" (a name by which Ickes was known) "said he shot himself," and that Mrs. Ickes said, "Yes, sir, Salty shot himself."
The trial judge in his charge to the jury defined murder in the second degree and the included offense of manslaughter, and instructed the jury as to the law applicable thereto, and then said to the jury that: "The defendant by her plea of not guilty denies her guilt, and the burden was on the state to prove her guilty of either crime. By that plea she did not offer any special defense but simply said she is not guilty of any offense. In her testimony on the stand, she denies having fired the shot that resulted in Henry Ickes' death, but says he shot himself. If this is true and if the story she has told on the stand is true, then she can not be convicted of either murder in the second degree or manslaughter, but must be acquitted. No one was present at the time of the shooting except the defendant and Henry Ickes and the defendant has given her version of it from the stand and of course the other party who was shot is not here to give his version and you will therefore have to determine the truth of the matter from all of the evidence in the case, from her testimony and that of all the other witnesses in the case, all the surrounding facts and circumstances as shown by the evidence, what she said and did at the time and later, the appearance of the room where Henry Ickes was found, his condition when found, what he said and did, the facts shown by the evidence which will shed light on the question will be considered by you in determining the truth of her story, the truth or falsity of which you alone must determine."
A general exception was noted by counsel for the accused to the charge of the court.
It is apparent that the jury was required by the charge of the court to accept as true either the facts as narrated by the accused on the witness stand, or the statements which the other witnesses testified were made by her, and in considering the latter the jury was not permitted to do more than determine whether in fact she did the shooting, and was denied consideration of whether, if she did the act alleged, it was done in self-defense. The jury was required by the trial judge to find either that the story told by the accused when called as a witness was true, which would necessitate an acquittal, or that the contradictory statement, testified to by other witnesses as made by her was true, isolated and separated from the attendant circumstances narrated therein as the impelling cause.
This court is of the opinion that the issue of self-defense was made by and included in the evidence, and that the trial court erred to the prejudice of the plaintiff in error in so charging the jury as to exclude therefrom the consideration of the evidence adduced on this subject, and in failing to charge the jury with respect thereto. We do not believe especially under the peculiar facts and circumstances of the instant case, that consideration of the conversations with the accused to which witnesses testified, and the written statement taken by the police officers, should be limited solely to the question of who held the revolver, who actually did the shooting, but should be considered for any legal purpose which the facts thus stated tended to prove. If the accused did not shoot Ickes, she is not guilty. If she did shoot him, but under such circumstances as constituted a lawful excuse, then she is not guilty; if, without such excuse, then she is guilty. Graham v. State, 98 Ohio St. 77, 81, 120 N.E. 232, 18 A.L.R., 1272.
The judgment of the court of common pleas is reversed and the cause remanded for a new trial.
Judgment reversed and cause remanded.
RICHARDS and WILLIAMS, JJ., concur.