State v. Vargo
| Decision Date | 11 May 1927 |
| Docket Number | 20203 |
| Citation | 116 Ohio St. 495,156 N.E. 600 |
| Parties | The State Of Ohio v. Vargo. |
| Court | Ohio Supreme Court |
Criminal law - First degree murder - Charge to jury - Affirmative defenses to be established by preponderance of evidence - Anger and intoxication - Homicide admitted and defense of lesser degree of crime - Evidence must preponderate in defendant's favor - Burden on state to establish guilt beyond reasonable doubt - Burden not shifted by plea of not guilty - Either side may avail itself of other side's evidence, when.
1. Where in a trial upon an indictment charging first degree murder the state has introduced evidence in support of every essential element of that crime, including malice, and the defendant in the course of his defense testifies in his own behalf and admits having formed a purpose to kill and states that he formed such purpose because of alleged provocative acts and statements on the part of the deceased, and further, offers testimony of his intoxication at the time of the homicide and requests the court to instruct the jury that, "If you find from the evidence in this case by reason of anger or intoxication, or both, that the mind of the accused was in such condition that he was incapable of reflection or deliberation, then he cannot be found guilty of murder in the first degree," and the court, after having correctly charged upon all the elements of the different degrees of homicide and the burden and quantum of proof, in response to such request, charges the same in substance except that anger and intoxication under the circumstances of the case were treated as affirmative defenses to be established by a preponderance of the evidence, such instruction under such circumstances is not error.
2. Where the accused admits the homicide and seeks to justify or to excuse his act or to show that his violation of the law amounted to a crime of lesser degree than that charged in the indictment, the evidence produced by the accused supplemented by evidence, if any, produced by the state which tends' to support any or all of such contentions on the part of the accused, must preponderate in his favor in order to warrant a finding by the jury that the contention of the accused, in respect to which the evidence is addressed, has been sustained.
3. The plea of not guilty places upon the state the burden of showing the accused guilty beyond a reasonable doubt. The accused is not obliged to offer any evidence. If he offers evidence to sustain the plea of not guilty, that in no Way shifts the burden of proof carried by the state, nor does it absolve the state from the duty of satisfying the jury beyond a reasonable doubt, of the guilt of the accused. Evidence offered by either side, which is helpful to the other side, may be availed of by that side.
The facts are stated in the opinion.
Mr. Seth Paulin, prosecuting attorney, and Messrs. Alvord, Blakely, Ostrander & Slocum, for plaintiff in error.
Mr. Harry T. Nolan and Mr. E. K. Giblin, for defendant in error.
At the April, 1926, term of Lake county common pleas court George Vargo was convicted of first degree murder without recommendation of mercy. On error to the Court of Appeals the judgment was reversed by a majority of the court for alleged error in the charge, and the cause remanded for new trial. The cause has been submitted to this court to review the judgment of reversal by the Court of Appeals. While the assignment of error relates to the charge of the court, the charge involves the application of legal principles to the evidence, and it has there- fore been found necessary to carefully read the entire record.
George Vargo was indicted on a charge of murder committed "unlawfully, purposely, and of deliberate and premeditated malice." The offense was committed about 5 o'clock in the evening of March 31, 1926. Anna Sabo, the deceased, was his landlady and a woman of good character. She was a widow having several children, her husband having died about a year before, and the accused and another man were roomers in her home and had been roomers for several years prior to the death of her husband. It was the theory of the state that Vargo wanted to marry her and that she had rejected his proposals of marriage; that Vargo was jealous of the other roomer. In support of this theory, the state offered testimony of statements of the accused some time prior to the homicide that he did not like his rooming place, and that he would probably get in jail because the woman did not treat him right. There was further testimony that he had been watching the deceased and the other roomer; that she was doing some cooking for the other roomer; and that she did not do any cooking for him. A fellow workman testified that on the morning of the day of the homicide he had had a conversation with the accused relative to a possibility of being out of work, and the accused said:
"I'm going to kill some one to-day, and then they will give me bread."
Neither the accused nor the other roomer worked during the afternoon of that day. Vargo had lunch in his room and then left the house and did not return until about 4 o'clock. At that time he requested Mrs. Sabo to cook some meat and cabbage for him, which she apparently refused to do, and thereupon a violent quarrel took place, in the course of which the accused called Mrs. Sabo vile names. This conversation was overheard by the other roomer, named Flitar, who testified that thereupon Vargo went upstairs to his room where he heard him moving about as though searching for something. Shortly thereafter he again went downstairs, where he renewed the quarrel and again called Mrs. Sabo vile names. After a short time he again went upstairs to his room, at which time Flitar came down from his room and left the house and heard no further controversy between them. John Sabo, one of the children, aged 14, returned from school after Flitar had left the house. There was no quarrel between Vargo and his mother after he returned. He passed Vargo on the street near the home, and later saw him sitting on the porch. John Sabo proceeded to do his chores, apparently taking some considerable time in doing them, and on entering the house saw Vargo draw his gun and point it at his mother, and then the boy ran for the marshal, at his mother's request. Immediately after leaving the house, he heard four shots fired, but did not return. Elizabeth Sabo, aged 12, arrived home before her brother and heard some of the quarreling, and saw Vargo draw his gun, point it toward Mrs. Sabo, and again put it back in his pocket. She was present later when he fired the shot and heard him say, "I'll fix you." She saw her mother fall, and then ran away, and heard a second shot when she was on the porch. She had seen Vargo go upstairs twice, thereby corroborating Flitar. The testimony of the witnesses fairly established that the homicide occurred about 4:45 o'clock.
The foregoing summary of these and other witnesses is important as indicating the length of time between the first quarrel, about cooking, and the time of the homicide. It is apparent that at least 45 minutes must have elapsed, during which he made two trips upstairs, on the first visit procuring his revolver from a trunk and filling it with cartridges, and after his second trip upstairs going to a nearby home of a relative, sitting for a time on the porch of the Sabo home, and sitting for another short period inside the house in the downstairs portion. The record shows that when Vargo pointed the gun at Mrs. Sabo and said, "I'll fix you," she sought to escape and he shot her in the back, causing her to fall, and then took a step or two forward and fired three other shots into her prostrate body. One of these shots fractured the spine, another plowed through one of the lungs, fracturing a rib, proceeded through the thyroid and other organs, and this was probably the shot which caused her death. Vargo thereupon again went upstairs, where he remained, and where he was found by the officers engaged in the act of extracting the empty shells from his revolver. Upon being taken to the jail by the deputies, he was later and within a short time thereafter visited by the sheriff, who questioned him and drew from him his story of the homicide. Vargo and the sheriff had been acquainted for many years. Vargo apparently talked without reserve. His first explanation was:
"Too much trouble; I shoot the Missus."
He further stated to the sheriff that everything was all right between him and Mrs. Sabo until Flitar came, and that she cooked for Flitar, but would not cook for him. He said he was "mad" when he shot her. He did not say that he was intoxicated, but when asked if he had been drinking, he said, "Not too much." He related the story of the quarrel and the shooting in considerable detail to the sheriff, which was, in substance, as follows: That he had returned to the home about 3 o'clock and wanted Mrs. Sabo to cook some cabbage, which she refused to do, and that he then went to the home of his relative to have the cabbage cooked, and came back and told Mrs. Sabo, and that she then told her son, John, to go and get a policeman. He pretended not to know the reason for her sending for a policeman, but that it made him "mad." He then said to the sheriff:
"I go upstairs and get my gun to fix the Missus." He further stated that when he shot Mrs. Sabo she was looking out at the door, and that after shooting her she fell down and then he shot two or three times more. He admitted that he had previously shown the gun to Mrs. Sabo.
It was the theory of the state that Vargo killed Mrs. Sabo...
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