#### The State of Ohio, Appellee, *v.*Cope, Appellant.

*430(No. 1893

Decided April 30, 1946.)

*Mr. M. H. Heck,*prosecuting attorney, *Mr. M. J. Gilbert*and *Mr. Fred M. Kerr,*for appellee.

*Messrs. Kelly & Magsig,*for appellant.

Wiseman, J.

This, is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, Ohio. The defendant, Haskell Cope, was charged and found guilty of murder in the second degree for killing Jackie Ellen Bennett, 15 years of age.

*431For his first assignment of error, defendant contends that the trial court erred in refusing to grant a continuance of the case after it developed from the *voir dire*examination of prospective jurors that two of them admitted having read the Dayton newspapers which had carried articles stating that the court had refused to accept the defendant’s plea of guilty manslaughter and ordered him to stand trial. The record shows that this same matter was presented' to the court on a motion for new trial which was overruled; that the court in its opinion found that 20 prospective jurors were selected before either side was called upon to exercise its or his peremptory challenges ; and that counsel for the defendant could have excused these two jurors if they saw fit, but did not avail themselves of this privilege. There is nothing in the record to show that these two jurors were prejudiced by anything which they may have read in the Dayton newspapers. They were properly qualified t© sit as members of the jury. The failure of the trial court to grant a continuance did not constitute error.

For his second assignment of error the defendant contends that the trial court erred in refusing to make available to counsel for the defendant a copy of the typewritten statement signed by the defendant and given to Detective Pendell. The record shows that when Detective Pendell was on the witness stand he testified that several days prior, to the trial he had examined this typewritten statement. However, he stated that he testified from his memory in regard to oral statements ihade by the defendant immediately after the crime was committed. Later, he was asked whether he was not testifying from what he remembered from the defendant’s oral statement and what was in the written statement which he read a few days previously. In answer to this inquiry the witness *432testified, “I suppose.” That written statement was not used by the witness to refresh his memory while on the witness stand. The witness testified that prior to the taking of the written statement the defendant had made an oral statement and that he later reduced to writing his oral statement and attempted to cover everything that the defendant had stated orally. The witness testified that the defendant stated he shot at the person in the room “with the purpose of intending to kill whoever it was; the form of whoever it might be.” . The written statement does not contain this admission on the part of the defendant. The record does not disclose whether the witness relied on his memory when he testified relative to what the defendant stated to the witness immediately after defendant’s arrest. The written statement was after-wards produced in court and introduced in evidence. Ample opportunity was given to counsel for defendant to recall the witness and examine him in regard to the contents of the written statement. In view of the state of the record, we do not believe that the refusal of the court to require the state to produce the statement at the time Detective Pendell testified constituted error.

For his third assignment of error the defendant contends that the trial court erred in refusing to direct a verdict of “not guilty” at the close of all the testimony. This assignment of error will be considered in connection with assignments of error numbered 10 and 11.

For his fourth assignment of error the defendant contends that the trial court erred in failing to grant defendant’s motion for mistrial due to the absence of William .Tally, one of the jurors, when the court, in the presence of the other 11 jurors, issued a bench warrant for his immediate arrest, where the absent *433juror had the opportunity to read the Dayton newspapers which carried a news item that the absent juror was subject to a fine up to $250 by reason of his failure to appear.

For his fifth assignment of error the defendant contends that the trial court erred in failing to grant defendant’s motion for a mistrial due to the misconduct of William Tally, juror, which evidenced his total, disregard of the responsibilities of a fair and impartial juror and which resulted in the court later holding him. for contempt of court. The record in this case shows that on Friday afternoon at the time the members of the jury were excused, they were instructed by the court to return at an early hour on Saturday morning for the purpose of hearing arguments of counsel and the submission of the case to them. On Saturday morning, one of the jurors, William Tally, failed to appear at the appointed hour. The court issued a bench warrant, directed to the sheriff, to find William Tally and bring him into court. The sheriff was unable to locate William Tally and so reported to the court. Thereupon, a discussion took place between counsel and the court as to whether the trial should proceed with 11 jurors. Because of the lateness of the hour, the court permitted the jurors to decide whether they wished to proceed on that day or return on Monday: morning. The jurors having-agreed to return on Monday morning, the court continued the matter until Monday. Over the week end the Dayton newspapers carried a news item to the effect that because of his failure to appear, William Tally was subject to a fine up to $250. On Monday morning William Tally and the other jurors appeared and the case was argued and. submitted to the jury. After the verdict of the jury was returned, the court excused all the members of the jury with the exception of *434William Tally. He was ordered to appear before the court in answer to a charge of contempt of court for his failure to appear on Saturday morning. He was examined by the court and, not being able to purge himself of contempt of court, was fined $100 and ordered committed to the county jail until payment of the fine. There is nothing in the record to indicate that either William Tally or any other member of the jury read the newspaper accounts of this incident. The record does not show that William Tally or any other member of the jury was prejudiced against the defendant by reason of this unusual happening. Under all the circumstances, we are of the opinion that the trial court followed the proper procedure after William Tally failed to appear as a juror. Furthermore, by waiting until after the case had been submitted and the verdict returned, the trial court removed any possibility of prejudice on the part of William Tally or other members of the jury in their consideration of the case.

The seventh assignment of error has been withdrawn.

For his sixth, eighth, ninth and twelfth assignments of error, the defendant contends that the court erred in refusing to - give three of the defendant’s special instructions before argument, in failing to instruct the jury as requested -by the defendant immediately after the court had finished his charge, and in charging the jury on second-degree murder, the defendant contending that there was no evidence to support a charge of second-degree murder. The defendant requested the court to give before argument special charge No. *2,*which was refused, and which is as follows:

“If you find from the evidence that the defendant was aroused from his sleep and aroused to an honest *435impression there was a burglar in the room, and due to an inherent and subconscious fear that the night-season intruder was bent upon mischief either to the person or property of himself or to the other lawful occupants of the home, spontaneously, and proceeding from an unconscious internal impulse, shot at the form of what he believed to be a burglar, then the mistaken killing of Jackie Bennett' would be excused in law and your verdict should be ‘not guilty.’ ”

We believe that this charge was properly refused as it did not require the jury to find that the defendant had reasonable grounds to believe, in protecting himself, the other occupants of the' home and his property, he was in imminent danger of losing his life or suffering great bodily harm.

The third special charge submitted by the defendant, which was refused by the court, is as follows:

“I charge you as a matter of law that the mere presence of an unknown person at night in an unlighted room occupied by another is sufficient'to justify the occupant to believe that the unknown person has entered his room with a felonious intent.”

We know of no principle of criminal law in Ohio which would justify the court in giving this charge. It was properly refused.

The defendant requested before argument a special charge which is as follows:

“If you find that the facts and circumstances surrounding this fatal shooting can be reasonably reconciled with a theory of the defendant’s innocence, your verdict should be ‘not guilty.’ ”

The substance of this special charge was covered in the court’s general charge and for that reason we are-of the opinion that the court did not commit error in refusing to give this statement of law as a special charge before argument.

*436We are of the opinion that the court properly charged the jury with respect to second-degree murder, as there is sufficient evidence in the case to justify the court in submitting the case on that issue.

After the court had finished its general charge, it inquired of counsel as follows:

"Do counsel for plaintiff and defendant desire any further charges?

"Mr. Gilbert: No, your Honor.

"Mr. Magsig: No, your Honor.”

Then follows this statement from Magsig, one of the attorneys for the defendant:

"The defendant excepts to the charge as given for the reason that nowhére did the court instruct the jury that in determining whether or not the defendant under all the circumstances acted as a reasonable, ordinary, prudent man would act, nowhere did the court instruct the jury that they should take into consideration his background and education or lack of education, or any other mental deficiency that might have any effect whatever on his acting as a reasonable, prudent man would be expected to act.”

We assume that, although counsel for defense first stated he had no additional charges to offer, from the state of the record he did make a request for further instructions. From the statement of counsel, it is not very clear what test he wished the court to apply. It is clear, however, that the court was requested to instruct the jury that it should take into consideration the defendant’s background, education, lack of education or any mental deficiency that might have any effect whatever upon his “acting as a reasonable, prudent man would be expected to act.” The test is not what a reasonable, ordinary, prudent man would do under the same or similar circumstances. The failure to give further instructions as requested by coun*437sol for defendant, together with the court’s general charge in which the court laid down an improper test, constituted error. In the general charge was the following statement:

“The test of whether or not the defendant, Haskell Cope, had reasonable grounds to believe as he did, if you so find that he did, is: What would an ordinary, reasonable, prudent person do under the same or similar circumstances? In considering this you will take into consideration all the facts and circumstances surrounding this happening.”

Where the defendant defends on the ground of self-defense or excusable homicide, the test to be applied is not what “an ordinary, prudent person” would have done under the same or similar circumstances, or whether the force used was that which a person of “ordinary firmness” would use to repel an assailant. The true test is whether the particular person on trial believed and had reasonable grounds to believe that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger would be by taking the life of his assailant although in fact he was mistaken as to the existence or imminence of the danger. *Marts*v. *State,*26 Ohio St., 162; *Napier*v. *State,*90 Ohio St., 276, 278, 107 N. E., 535; *State*v. *Sheets,*115 Ohio St., 308, 309, 152 N. E., 664; *Nelson*v. *State,*42 Ohio App., 252, 181 N. E., 448.

In the *Nelson case,*wherein the defendant pleaded self-defense, the Court of Appeals held that the trial court accurately defined self-defense by instructing the jury “that the defendant could invoke that doctrine if in the careful and proper use of his faculties he bona fide believed, and had reasonable grounds to believe, that the killing was necessary.” However, in the general charge the court instructed the jury that “it must appear that the circumstances were suffici*438ent to excite the fear of a reasonable person similarly situated, and that the defendant acted in good faith.” This charge was held to be erroneous. Judge Mauck followed that observation with the following statement:

“While the courts of this state have not always pursued an even course in defining the fear which one must entertain in order to rely upon self-defense, it seems now to be finally determined that guilt is personal, and that the conduct of any individual is to be measured by that individual’s equipment mentally and physically. He may act in self-defense, not only when a reasonable person would so act but when one with the particular qualities that the individual himself has would so do. A nervous, timid, easily frightened individual is not measured by the same standard that a stronger, calmer, and braver man might be. *State*v. *Sheets,*115 Ohio St., 308, 152 N. E., 664.”

The charge of the- court in the instant case being erroneous, was it prejudicial? Section 13449-5, G-eneral Code, provides, *inter alia,*that a judgment of conviction shall not be reversed for “any misdirection of the jury unless the accused was or may have been prejudiced thereby.”

In the case of *Napier*v. *State, supra,*the court held that although the charge of the court was erroneous, it could not have prejudiced the rights of the defendant and therefore was not reversible error. In the case of *State*v. *Witsel,*144 Ohio St., 190, 58 N. E. (2d), 212, it appears that the Court of Appeals found the trial cou'rt committed serious error in the improper admission of evidence, and the Court of Appeals, in its opinion, held:

“We do not have the slightest difficulty in determining that the evidence was ample to support the conviction establishing the guilt of the defendant beyond *439a reasonable doubt and hence the first assignment of error that the verdict was against the manifest weight of the evidence is overruled * * *. Being convinced as we are, that the defendant was proven guilty, we hesitate to grant a new trial and we have sought in every way possible to find ways and means to obviate it.”

The Supreme Court reversed the judgment of the Court of Appeals and, in commenting on that portion of the opinion of the Court of Appeals above quoted, said:

“Although this court is not required to pass upon the weight of the evidence presented by the record in this case, yet from a review of the evidence we are of the opinion that the Court of Appeals was justified in its observation as above quoted and that the jury had ample justification in rendering a verdict of guilty, entirely aside from the objectionable evidence which is now the subject of consideration.

“Under the circumstances shown by the record, this court cannot find affirmatively, as required by the statute, that the defendant was prejudiced by the error occuring at the trial and now complained of by him, in view of the caution and direction given to the jury by the trial judge concerning the evidence in question. ’ ’

Even though the charge of the court was erroneous in the instant case, the question is still raised as to whether such error was so prejudicial as to warrant a reversal. The court is required to consider all' the evidence in this case as well as the' charge to the jury in its entirety in order to determine whether this defendant had a fair trial and whether there was ample evidence to justify the jury in finding the defendant guilty of murder in the second degree.

The record in this case shows the following facts:

*440The defendant was 38 years of age at the time the crime was committed. He was born and reared in the state of Tennessee. He left school while in the fifth grade and helped his father by working on a farm. At the age of 19 years he married and shortly thereafter was arrested for operating a motor vehicle without the owner’s consent and was sentenced to serve a year and a day in the penitentiary. After being released from the institution and living a short time with his wife, they separated and were later divorced. In 1935, while living with his mother in Cookville, Tennessee, he met Mary Bennett, the mother of two daughters, Opal and Jackie Ellen, who lived with her. Her husband had been previously killed in an accident. The defendant and Mary Bennett never married but to them one child, Bobby, was born, who is now over eight years of age. Later the defendant went to Bichmond, Indiana, where he was employed, and, upon learning that Mary Bennett had in the meantime moved to Dayton, the defendant left Bichmond, Indiana, and went to live in Dayton with Mary Bennett. At the time the defendant first called on Mary Bennett in Dayton, she and her children were living in one room. Within two or three weeks they moved into a two-room apartment in the same building, at which time the defendant and Mary Bennett began to cohabit as husband and wife. This relatiqnship continued for a period of two years and in October 1944 a separation occurred due to differences which-had arisen between defendant and Mary Bennett. Within a few days after their separation, the defendant was arrested and charged with possession of illegal gasoline stamps and was sentenced to a term in the federal reformatory at Ashland, Kentucky. During the time the defendant was in the federal reformatory, Mary Bennett moved into a one-room *441apartment, where she continued to live with her daughter, Jackie, and her son, Bobby, her other daughter, Opal, having been married some time previous. On April 24, 1945, the defendant was released from the Ashland reformatory and immediately went to Dayton and found Mary Bennett living in the one-room apartment containing only one bed which was used by Mary Bennett and her daughter, Jackie,, her son sleeping on a pad on the floor. In the evening of the day on which he returned, a discussion took place between the defendant, Mary Bennett and her daughter, Jackie, relative to their living arrangements. In order to permit the defendant immediately to begin his illicit relationship with Mary Bennett, Jackie was told she would be required to spend the night in the home of a girl friend, Betty Dean. The next day Mary Bennett did not go to her place of employment but spent the day with the defendant. In conversations which took place between the defendant and Mary Bennett it was generally agreed that the defendant should go to Richmond, Indiana, and there is some evidence indicating that Mary Bennett planned to accompany him, and that Jackie and Bobby should live with an uncle until the end of the school term. Jacide was required to spend the second and third nights with her girl friend. On the evening of the murder, the defendant and Mary Bennett discussed with Jackie their plan to have her live with her uncle. Betty Dean testified that on this evening when Jackie came to her home, Betty observed that Jackie had been crying, and upon being questioned, Jackie stated that she had been crying because she was expected to live with her uncle whom she disliked.

There is ample evidence from which the jury could conclude that on the third evening at the time Jackie left her home she stated to her mother that she might *442return later but if sbe did not she would see her mother in the morning, and that this conversation took place in the presence of defendant. Mary Bennett testified that on that evening she asked her daughter Jackie whether she wished to eat, whereupon Jackie replied that when she came back she would probably eat something. The evidence shows that on each of the three evenings which the defendant spent in this one-room apartment, he and Mary Bennett occupied the bed and Bobby slept on the floor; that the defendant placed the pistol on the chair near the head of the bed each evening; that on the third evening he cleaned the gun; that Jackie returned to the apartment with her friend, Betty, shortly after 11 o’clock for the purpose of getting a bottle of shampoo which was in the room; that she had a key to the door, unlocked it and went inside; that the one-room apartment was on the second floor; that Betty remained standing at the foot of the stairs; that a short time after Jackie entered the room a shot was heard, whereupon Betty called several times for Jackie and upon getting no response went upstairs and knocked on the door; that after Betty knocked several times, the door was opened and Betty asked where Jackie was; that both Mary Bennett and the defendant told her that Jackie was inside and was all right. This incident is denied by the defendant, but is supported in part by Mary Bennett, who testified also that the defendant grabbed her and pulled her away from the door and sat her on the chair immediately in front of him and that when he turned to put his clothes on, she left the room. She further testified that the defendant stated that he wanted to get his clothes and gun and get away. She testified that she persuaded him to stay; that she went to a lower room and called Mayberry; that the defendant still wanted to leave and that she and May-*443berry kept him from going; and that the defendant said, “They would kill him.” The police were called and arrived at the scene within a few minutes, took the defendant into custody and removed Jackie to the hospital where she died as a result of a gunshot wound in the forehead.

The defendant claimed that he was told by the children of Mary Bennett that while he was in the federal reformatory someone had broken into the apartment; that he laid the gun on the chair for protection; that on the night in question he was awakened by a thud which he described as a sound made by a heavy object falling to the floor; that he saw an object moving in the room and took the gun, pointed it at the object, and fired; that the firing of the shot awoke Mary Bennett; and that the lights in the room were turned on and he then discovered he had shot Jackie Bennett. The defendant claimed he placed the gun on the chair as a protection against an intruder but admitted that it was always his custom to put a gun under the pillow. He stated that on the night in question Mary Bennett placed the gun on the chair but he finally admitted that he had placed the gun there. In his statement to the police he said that it was the opening of the door that awoke him; that he fired the shot without making any move or any outcry and without making an investigation as to whether it was a man or woman or one of the occupants of the room; and that he thought the person in the room was a burglar.

There is no evidence that the apartment had been previously burglarized except the statement of the defendant. He denied stating to Mary Bennett that he was going to get out of there, denied telling Betty Dean immediately after the shooting that Jackie was all right, and denied that he was making an effort to get away when arrested, although the arresting officer *444testified that in his opinion defendant was attempting to make an escape. The defendant testified that he had purchased the gun from a pawnbroker who took the stand and testified that he had never seen the defendant and had not sold the gun to him.

On the question of identification, Mary Bennett testified that before the lights were turned on in the room she identified the person as her daughter, Jackie, by the buttons on her coat and by the dress she wore. Immediately after the arrest, the officers made a test of the room by turning out the lights. They testified that objects could be distinguished in the room, which testimony was supported by the testimony of Mary Bennett that objects in the room could be seen as well as things hanging on the wall.

A motive for the crime was not definitely proven. However, it is not incumbent on the state to prove motive. The proof or lack of proof of the motive is a circumstance to be considered by the jury, together with all other evidence in the case, in determining the guilt or innocence of the accused. However, there was evidence presented from which the jury could have reasonably concluded that the defendant had lived with several women in Dayton and another woman in Detroit who had a child by him. On the first evening after defendant’s return from'the federal reformatory, Jackie was required to leave her room in order that the defendant might share the bed with her mother. The jury could have reasonably concluded that his desire to immediately renew illicit relations with Mary Bennett furnished a motive for killing Jackie, who on the third night disturbed him by returning to the bedroom. The court properly instructed the jury in regard to the proof or lack of proof of a motive.

The defendant contends that no difficulty arose be*445tween liirn and Jaclde, -and that their relationship had been entirely friendly. It is contended that, since the defendant bore no ill will towards Jackie, the state failed to show malice. It was not encumbent on the state under the peculiar circumstances in this case to prove that the defendant bore any ill will towards Jackie. The defendant is charged with second-degree murder, the elements of which are a purposeful and malicious killing of another. Where a defendant is charged with murder in the second degree, malice may be presumed from a purposeful and unlawful killing with a deadly weapon. Did the defendant here purposely kill the person he found in the room? If he intended to kill the person he found in the room, and there was evidence in this case from which the jury could have concluded that he did, even though he was mistaken as to that person’s identity, the doctrine of transferred intent would apply, and the defendant in this case would be charged with the intentional and purposeful killing of Jackie Bennett. The purpose to kill is proved by circumstances; by what a party does and says, the manner of inflicting the wounds, the instrument used, and its tendency to destroy life. When the defendant awoke, found some person in the room, took the gun, aimed at a vital spot, and fired, under the circumstances in this case and in light of the testimony with reference to the ability to identify the person and objects in the room, the jury was justified in finding that the defendant intentionally and purposely killed the person in the room.

Was the commission of the act justified or excusable? Before the jury was warranted in finding the defendant was justified or excused in committing the act, it would be required to find that the defendant honestly believed, and had reasonable grounds to believe, that he was in imminent danger of death or great *446bodily harm and that his only means of escape from such danger would be by taking the life of the person he found in the room, although in fact he was mistaken as to the existence or imminence of the danger. After considering the evidence as to the manner in which the crime was committed and all the surrounding circumstances, *i. e.,*the cleaning of the gun by the defendant on the evening of the murder, his evasiveness as to whether he or Mary Bennett placed the gun on the chair on the night in question, his knowledge that Jackie might return later 'that night, the evidence that objects in the room could be identified, the evidence that Jackie was identified before the lights were turned on, the evidence that Jackie was a girl 15 years of age, and the evidence in this case as to defendant’s desire to flee the scene of the crime; we are of the opinion that the jury on this issue was amply justified in finding the defendant did not have -reasonable grounds to believe that he was in imminent danger of death or great bodily harm. Once the jury had arrived at this point in the consideration of the case, it was required to find that the defendant had not sustained his claim that the homicide was justifiable or excusable. Any intentional killing without a legal justification or excuse, and not within the realm of voluntary manslaughter, is a malicious killing. Where a wrongful killing has been proved, a presumption is raised that simple malice is present and, consequently, that the crime is murder in the second degree. 21 Ohio Jurisprudence, 60, Section 21. This court is of ihe opinion that there was ample evidence to support the verdict of the jury that the defendant was guilty of murder in the second degree.

As to the question whether the charge as given misled the jury, all the evidence relative to the type and character of the defendant as an individual, his edu*447cation, experience, general background and bis general powers of comprehension as reflected in his testimony must be considered.' After giving careful consideration to all the evidence in regard thereto, we are of the opinion that the defendant differed only slightly, if at all, as an individual from the ordinary person, and that consequently the jury was not misled by the charge as given.

The improper test as applied by the trial court was based on the assumption that the defendant was awake and rational. However, the defendant’s principal defense was that he fired the shot before he was sufficiently awake to appreciate the effect of his act. The court fully covered this situation by giving a special charge requested by the defendant, which was definitely favorable to him. The substance-of such charge was that the defendant’s act was excusable in law and he should be acquitted if the jury found that the defendant was aroused to an honest impression that there was a burglar in the room and that the defendant, on the spur of the moment, shot at the form of what he believed to be a burglar before he was sufficiently awake to properly appraise the situation confronting him. The jury rejected this theory of defendant’s case.

After considering the charge in its entirety and the fact that the court in substance did charge the jury in two separate findings to the effect that the defendant should be acquitted if the jury "found that he honestly believed, and had reasonable ground to believe, he was in imminent danger of death or great bodily harm, we do not believe, and therefore cannot say, that the jury may have given a different verdict had the proper test been applied. On the whole, we are of the opinion that the defendant had a fair trial; that the charge of the court, although it was erroneous, *448was not of such import as to mislead the jury; and that consequently any error which might appear was not prejudicial to the defendant.

For his third, tenth and eleventh assignments of error the defendant contends that the trial court erred in refusing to direct a verdict of “not guilty” at the close of all the testimony; and that the verdict was against the manifest weight of the evidence and contrary to law. In view of the evidence in this case, we are of the opinion that the court properly overruled the motion for-a directed verdict, and that'the verdict was amply supported by the evidence. We have already commented on the law applicable to the issues in this case and find that the verdict and judgment of the court were not contrary to law and that the court did not commit prejudicial error.

The judgment is affirmed.

*Judgment affirmed.*

Hornbbck, P. J., and Miller, J., concur. '

(Decided May 17, 1946.)

On Application for rehearing.

By the Court.

This court in its original opinion found that the trial court committed error in its charge to the jury, but that the error was not prejudicial because this court was convinced that the defendant was guilty and that there was ample evidence to support the verdict of the jury. Because of the rule laid down in the case of *State*v. *Witsel,*144 Ohio St., 190, 58 N. E. (2d), 212, this court is of the opinion that the error committed is not prejudicial.

The application for .rehearing is denied.

*Application denied.*

Hornbeck, P. J., Wiseman and Miller, JJ., concur.