State v. Moore

• Decision Date: 17 March 1948
• Docket Number: 31205.
• Citation: 78 N.E.2d 365,149 Ohio St. 226
• Parties: STATE v. MOORE.
• Court: Ohio Supreme Court

78 N.E.2d 365

149 Ohio St. 226

STATE v. MOORE.

No. 31205.

Supreme Court of Ohio

March 17, 1948

Syllabus by the Court.

1. The like acts or other acts which may be shown against a defendant in a criminal case, within the contemplation of Section 13444-19, General Code, are acts of a character so related to the offense for which the defendant is on trial that they have a logical connection therewith and may reasonably disclose a motive or purpose for the commission of such offense.

2. In a prosecution for felonious homicide, testimony as to threats made by the defendant against a third person sometime prior to the killing, with which former incident the deceased had no connection and which formed no part of the affair in which the deceased was killed, is not, over objection admissible in evidence against the defendant.

Appeal from Court of Appeals, Cuyahoga County.

Frank T. Cullitan, Pros. Atty., John J. Mahon and Gertrude M Bauer, all of Cleveland, for appellant.

Clayborne George and A. L. Kearns, both of Cleveland, for appellee.

ZIMMERMAN Judge.

Allowance of a motion by the state of Ohio for leave to appeal from a judgment of the Court of Appeals for Cuyahoga county brings this case here for a decision on the merits.

Defendant, Ben F. Moore, appellee herein, was indicted for murder in the second degree by a Cuyahoga county grand jury. It was charged that on July 3, 1946, he unlawfully, purposely and maliciously killed one Herman Hall.

Upon arraignment, the defendant entered a plea of 'not guilty.' Upon trial the jury found him guilty of manslaughter. Motion for a new trial was overruled and the defendant was sentenced to serve a term in the Ohio Penitentiary.

An appeal to the Court of Appeals resulted in a reversal of the judgment of conviction and a remand of the cause for a new trial. It is apparent that the sole ground for reversal was that the trial court had erred to the prejudice of the defendant in admitting the testimony of one Garrett A. Morgan relative to the conduct of the defendant toward him previous to the commission of the crime charged.

The defendant operated a dry cleaning establishment in the city of Cleveland. Decedent Hall was employed by him as a 'route man.' On the morning of June 9, 1946, defendant drove to decedent's residence in his automobile to discuss with him some difficulties which had arisen in connection with Hall's employment.

Hall was not then at home and defendant talked with his mother. As defendant was leaving, Hall and a companion approached in an automobile. Hall stopped and an altercation and fist fight followed between the defendant and Hall, Hall knocking the defendant to the ground. Defendant then procured a revolver from his automobile. From this point on the evidence is in sharp conflict.

Evidence offered by the state tends to show that the defendant was the aggressor; that after he got his revolver he struck Hall over the head with it, later pushed him to the ground and then deliberately fired two shots into his body, as a consequence of which Hall died on July 3, 1946.

On the other hand, evidence introduced by defendant was to the effect that after Hall knocked the defendant down, defendant went to his automobile and secured his revolver for self-protection; that defendant, backing away, warned Hall to keep away from him, but that Hall did not do so, and in the ensuing scuffle the revolver was accidentally discharged, the bullets entering Hall's body.

During its case in chief, the state offered as a witness one Morgan, former landlord of the defendant. Morgan was allowed to testify, over objection, that during the period defendant was his tenant trouble developed between them, and that on several occasions in the months of January and February 1946, the defendant came to Morgan's home with a revolver and, using profane language, threatened to kill him. Hall, the deceased, was not involved in any way in these controversies. The trial court ruled that such testimony was admissible under Section 13444-19, General Code.

In its general charge, the court told the jury that such testimony might be considered by them only for the purposes set out in the statute.

The Court of Appeals took a different view of the matter and said in its opinion :

'This testimony [of Morgan] taken at its face value cannot be said to even suggest a similar offense. The most that can be said for it is that it would tend to show he [defendant] was a man of violent temper and quarrelsome disposition and of bad repute in his social relations.'

Section 13444-19, General Code, is as follows:

'In any criminal case where the defendant's motive, intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.'

The state contends on this appeal 'that this evidence of other assaults committed by the defendant upon Morgan was probative of a necessary element of the case of the state, to wit, an intent to kill and...