#### Shelton *v.*The State of Ohio.

*Criminal law*— First *degree murder*— Evidence *to show motive —Defendant 'a fugitive on other charges*— Knowledge *of facts l>y deceased policeman*immaterial, *when.*

1. Upon tbe trial of a person indicted for the murder of a policeman while in the act of malting an arrest and search of a suspicious character, evidence that accused had been convicted of another crime for which he had not served the full term of his imprisonment, that he had been indicted for still another crime, for which he had not yet been tried, and that he had escaped from custody and was at the time of such homicide a fugitive from justice as to both charges, is admissible for the purpose of showing motive.

2. Such evidence is not rendered incompetent because the deceased, who was a police officer in full uniform, had no knowledge or suspicion of such former unexpiated conviction, such other untried indictment, and that accused was a fugitive from justice; but it is sufficient if such arrest would likely lead to a discovery of same.

(No. 17564

Decided December 19, 1922.)

*244Error to the Court of Appeals of Hamilton county.

Shelton was indicted in Hamilton county in 1918 on a charge of murder in the first degree. The indictment charged the killing of a policeman named Dieters, on the night of August 28, 1918, at 11:30 o’clock. Dieters was in full uniform and recognized as a uniformed officer by Shelton. The record discloses that Shelton and one Chandler were walking on the street with caps pulled down and acting in an unusual and suspicious manner. Dieters accosted them, and after a short conversation searched Shelton, but his search was not a thorough one and failed to find a revolver which Shelton actually had on his person. The officer then turned to Chandler. While he was searching Chandler, Shelton drew his revolver and compelled the officer to hold up his hands. He then commanded Chandler to take the officer’s gun. The evidence at this point is confused and contradictory, but at any rate Shelton fired and killed the officer and the two men then escaped. They were later apprehended and brought to trial. At the trial, Chandler testified on behalf of the state and Shelton testified in his own behalf. Shelton had previously made a full confession in which he admitted killing the officer, but attempted to show that it was unintentional. He did state, however, that he did not want to be arrested, because he had a revolver on his person. It should be noted, however, that the officer had already searched Shelton, without finding the revolver, so he was therefore not in any apparent danger of being discovered in the act of having a revolver *245concealed upon his person. At the trial the state, for the purpose of proving or attempting to prove motive for the commission of the crime charged in the indictment, and in view of the claim made by the accused through his counsel in the statement to the jury that the shooting of Dieters was accidental, called as a part of the case in chief two witnesses, by the name of Bivens and Jones, respectively, from Birmingham, Alabama, who testified that the accused, under the name of Henry Briscoe, alias “Powder Can,” had formerly lived in that city and had been convicted of the crime of carrying concealed weapons, and that while serving a term, and before the beginning of his trial upon the indictment for assault with intent to murder, had made his escape from a road gang, all of which occurred several months prior to the killing of Dieters. To be more exact, his escape from Birmingham was effected May 22,1918, and Dieters was killed August 28 of the same year. This evidence was objected to at the time, and was admitted by the court for the sole purpose of proving or attempting to prove motive, and the jury were very clearly charged that it was their duty to consider such testimony only as it might tend to prove motive for the act alleged in the indictment; and that it should not be considered for any other purpose whatever. Shelton was found guilty and the jury did not recommend mercy. Motion for new trial was overruled and judgment entered upon the verdict. The court of appeals affirmed the judgment, and the cause has been admitted to this court upon leave first obtained.

*Mr. M. G. Lykins*and *Mr. James G. Stewart,*for plaintiff in error.

*246
      *Mr. Louis E. Capelle,*prosecuting attorney, and *Mr. Charles S. Bell,*assistant prosecuting attorney, for defendant in error.

Marshall, C. J.

The single question which has been presented to this court is that of the competency of the evidence of Bivens and Jones relative to the former conviction of Shelton for the commission of one crime, his indictment for the commission of another crime, and the fact that at the time of the killing in the present case he was a fugitive from justice. No question is made by counsel for the accused that the court did not properly instruct the jury in respect to the limitation of the evidence, but it is urged that the evidence was incompetent and so prejudicial in its effect that the limitation upon the jury’s consideration of it in the court’s instructions did not cure the prejudicial effect. The evidence having been adduced by the state as a part of its case in chief it was of course not admissible in a murder trial for the purpose of identifying the accused with this particular crime, which principle was recognized by ithe trial court and fully safeguarded by the instruction given to the jury. It only remains to determine whether the evidence was competent for the purpose of proving motive.

The two witnesses from Birmingham were police officers having personal knowledge of the matters concerning which they testified, and no objection is urged on that ground. Inasmuch as the offense for which he had been indicted in Birmingham, and for which he had not yet been tried, was assault with intent to commit murder, the testimony was highly *247prejudicial unless the state was entitled to prove it for the purpose of showing motive. The mere fact of the similarity of the crime for which he was being tried and that for which he had been indicted and not yet tried, and on account of which he was a fugitive from justice, vfas of course unfortunate for the accused, but, even so, the testimony was competent, just as much so as though there had been no such similarity. Counsel for the state have cited a number of authorities and have quoted from standard works on criminal evidence, but counsel for the accused offer no authorities by way of denial of the proposition that previous crimes which have not been tried or expiated may be shown by the state in murder cases as a part of its case in chief for the purpose of proving motive. The following authorities have been cited and will all be found to have a direct bearing upon this proposition: Underhill on Criminal Evidence (2 ed.), Section 90, page 166; 2 Wharton on Criminal Evidence (10 ed.), Section 899; *State*v. *Dickerson,*77 Ohio St., 34; *Hendrickson*v. *People,*10 N. Y., 1, 31; *Moore*v. *United States,*150 U. S., 57, 60; *Dearborn*v. *State,*59 N. H., 348; *State*v. *Colling,*181 Mo., 235; *State*v. *Seymour,*94 Ia., 699; *Dunn*v. *State, 2*Ark., 229, and *State*v. *Kent,*5 N. D., 516. The doctrine has been so often declared and is so well settled that it would not be profitable to enter upon a discussion of the authorities cited.

It seems not to be disputed by counsel for the accused that if Dieters knew or suspected Shelton’s participation in former crimes a motive would thereby be shown. It will of course be conceded that such fact would show a more potent motive, and much bet*248ter reason for committing murder in order to effect an escape; but the authorities agree that it is not necessary that the deceased should have actual knowledge, or even suspect the guilt, of former crimes, but is sufficient if the arrest of the accused would probably lead to discovery and result in his being brought to trial and punished for such former offenses. Motive is a mental state which induces an act. Any evidence which tends to point out an inducement or incentive, or indicates a rational purpose to be subserved, is proper to be submitted to the jury as reflecting upon that mental state.

It has further been urged that the evidence was prejudicial because it was not confined merely to proof of the commission of former crimes which had not yet been tried or punished, but was extended to an exhibition of photographs, and proof of alias names, and other details. We have carefully examined the record to ascertain fully the character of such additional details and we are convinced that counsel for the state did not go farther into details than was necessary, first, to show the commission of former crimes in Birmingham, Alabama, and, second, to establish the identity of Shelton with the commission of those crimes. On the subject of identity it is true that Shelton did not deny that he was the man who killed Dieters; and though he had confessed to his part in that crime his confession did not include his past life or his having been identified with previous crimes for which he had not paid the penalty and because of which he was a fugitive from justice. We therefore hold, both upon principle and upon abundant authority, that for the purpose of proving motive other unexpiated crimes *249can be shown, and that in this case the evidence of the former crimes was not detailed beyond the point necessary to prove them and to prove Shelton’s identity with them. No other alleged error having been suggested, and finding none in the record, the judgment of the court of appeals is affirmed.

*Judgment affirmed.*

Hough, Wanamaker, Robinson, Jones, Matthias and Clark, JJ., concur.