Summary
In Lancaster, the court concluded that it was not error for the trial court to reject defendant's requested instruction on motive where there was direct evidence of the killing in the form of the testimony of the victim's daughter.
Summary of this case from State v. BurroughsOpinion
No. 35351
Decided March 26, 1958.
Criminal law — Murder — Motive — Evidence of, relevant and material — Not an element of crime — Guilt not established by proof of motive — Motive an important question, when — Duty to charge thereon — Basis of motive.
1. In a murder case, evidence of motive or lack thereof upon the part of the accused is relevant and material.
2. Motive is not an element of the crime of murder and need not be established to warrant a conviction; proof of motive does not establish guilt, nor does want of proof thereof establish innocence; and, where the guilt of the accused is shown beyond a reasonable doubt, it is immaterial what the motive may have been for the crime, or whether any motive is shown.
3. Where, in a murder case, the evidence is purely circumstantial, the identification of the killer is not shown by direct evidence, and, therefore, his identity must be proved, motive or lack thereof becomes an important question, and in such a case the trial court has a duty to instruct the jury that it should take the evidence on that question into consideration, together with all the other evidence and circumstances, in determining the guilt or innocence of the accused.
4. Where, in a murder case, there is direct evidence of a deliberate killing without provocation, and the determination of the guilt or innocence of the accused depends upon the credibility of witnesses to the act of killing, the trial court is not required to charge upon the question of motive.
5. Motive for the commission of murder need not be based solely upon hope of material gain but may consist of, among other things, jealousy, disappointment or mortification.
CERTIFIED by the Court of Appeals for Summit County.
The Grand Jury of Summit County indicted Lancaster, appellant herein and hereinafter designated defendant, for murder in the first degree, charging him with unlawfully, purposely and with deliberate and premediated malice killing one Louise E. Wallick.
Upon his trial in the Court of Common Pleas, the jury returned a verdict of guilty of murder in the first degree, without a recommendation of mercy, and the court sentenced the defendant to death in the electric chair.
Upon appeal to the Court of Appeals, that court affirmed the judgment of the Court of Common Pleas but found that the judgment of the Court of Appeals is in conflict with a judgment of the Court of Appeals for Wood County and with a judgment of the Court of Appeals for Cuyahoga County and certified the record of this cause to this court for review and final determination.
In the appeal to this court, claimed errors are assigned as follows:
1. "The Court of Appeals erred in affirming the judgment of the Common Pleas Court and in failing to reverse the same."
2. "The trial court erred in its general charge to the jury."
3. "The trial court erred in refusing to give to the jury the instructions seasonably requested by appellant's counsel."
4. "The trial court erred in the admission of evidence offered by the state of Ohio, to the prejudice of the appellant."
5. "The appellant was denied a fair trial by reason of the misconduct of the assistant prosecuting attorney and the prosecutor in the course of their argument to the jury, by stating facts not within the record tending to create an unjust prejudice against the defendant: a) in calling the attention of the jury to the failure of the appellant to offer character witnesses in his behalf; b) in referring over the objection of appellant's counsel to questions and evidence which the court had ruled objectionable; and c) in stating to the jury that the defendant had had his chance, and that he was given mercy by the Municipal Court."
6. "The trial court erred in overruling the motion of appellant for a new trial."
The statement of facts as narrated by Judge Doyle in the opinion of the Court of Appeals is so accurate and fair that we quote it:
"Mrs. Louise E. Wallick, the deceased, at the time of her death and for some time previous thereto, resided in her own home with her 13-year old daughter, Evelyn.
"The defendant resided in the same house, as a roomer and boarder, and from the direct testimony of the defendant, and inferences reasonably drawn from the witnesses for the state, the relationship between the deceased and the defendant was more than one of strictly business, having developed into an amatory and perhaps illicit connection.
"Be that as it may, on October 8, 1956 (the date upon which Mrs. Wallick was shot and killed), and for some time prior thereto, the deceased and the defendant quarreled over various matters, including the objection on the part of the defendant to the association of the deceased with other men.
"On the evening of the shooting, the deceased told the defendant to leave her home. He refused this request, with the suggestion that if she wanted his clothes out of the house, she should throw them out. He then telephoned a sister of Mrs. Wallick, a Mrs. Hazel Root, and the following quotation from the testimony of Mrs. Root reflects the conversation:
"Q. Would you tell the jury what the conversation was? A. Well, when the phone rang and I answered * * * it was Joe [the defendant] and he said that him and Louise were quarreling and she had ordered him out and he said the only reason she wants me out is she wants somebody by the name of John * * * and by that time Louise [the deceased] took the phone and she said he held a gun on me yesterday and I am afraid of him and that was all she said and all he said was well, I am going to help her and that is all that was said. He said in the background when she said he held a gun on me, in the background he said I don't even own a gun.
"The evidence offered by the state tended to prove that, following this conversation with Mrs. Root, the deceased and her daughter retired to their bedroom and changed into their night clothes. The defendant remained in the house. The daughter then proceeded to an adjoining bathroom; the mother followed and seated herself on the commode, and the two conversed while the daughter brushed her teeth.
"At this time the defendant pushed the bathroom door open, and the daughter stepped sideways to a place between a wash basin and a clothes hamper, thereby cutting off the defendant's view of her, but leaving the mother in full view of the daughter.
"The daughter's testimony, reflecting the next event, was as follows:
"`Q. All right. While you were there brushing your teeth having this conversation with your mother, I want you to tell the jury what happened. A. After she told me I couldn't go [to a basketball game], I was brushing my teeth and standing in front of the wash basin, and he [the defendant] started to come in and he pushed the door and it hit me in the back, and I moved to one side and my mother sat there and he came in where I could see his face and gun and biggest part of his arm and my mother just sat there, she didn't say * * *.
"`* * *
"`Evelyn, will you go on from there and tell us what else happened? A. Well, she just sat there and he came in and then he said, "I have warned you about this for a long time," and I just stood there, I didn't know what to do, and then I heard a click and then I heard the explosion, and my mother fell over on the side and hit the wash basin, and in order for me to get out of the bathroom he had to move first, and I ran down the steps and across the lawn and told the next [-door] neighbor.'
"The deceased was shot in the forehead from a distance of six to eight inches; was rendered unconscious, and died within a period of four hours.
"Following the shooting, the defendant walked to his bedroom, and the daughter ran from the house to the next-door neighbor, who in turn called the police. The police arrived within a few minutes. Likewise arrived Mrs. Root, the deceased's sister, to whom the defendant had talked on the telephone 15 or 20 minutes before. Mrs. Root, obviously, in the light of her conversation with the defendant and her sister, accused the defendant of shooting her sister. * * * [It was] stated on the witness stand: `He did not make any replies or denials; he said nothing.'
"The foregoing recitation of facts was in substance the state's case.
"The testimony of the defendant was that: He had arrived at the home from his work at about 7:30 p.m.; he had stopped en route and drank a `double shot of whiskey'; upon his arrival he was affectionately greeted with a kiss; and he and the deceased ate supper, which she had prepared.
"During and after the meal they argued over various matters, in the course of which the defendant testified that he told the deceased he would leave her home; whereupon she suggested that `if you are going to leave, why don't you go down to the Milner Hotel for the night?' He then further testified: `I said, what do you mean go down to the Milner Hotel, she said, well, for two or three days to see how you feel and we were bickering back and forth * * * and I said, well, I can leave tonight, and I got up and went up the steps and as I started up the steps she says, do you want me to call the Milner and see if they got a room, and I said, no, I will find one.'
"The defendant further testified that he then ascended the stairs to his room and laid out some of his clothes for packing; that the deceased then came into his room and put the articles of clothing, that he had placed on his bed, back into a dresser drawer; that he then walked into the bathroom, and when he came out the deceased followed him into his bedroom and said that she wanted him to talk to her sister; that a telephone conversation then ensued between the defendant and the deceased on one side, and the sister on the other [the version of this conversation given by the defendant differs substantially from that of the sister]; that the deceased then proceeded into the bathroom and there joined her daughter; that the daughter shortly thereafter left the room and walked down the stairs, whereupon the deceased called him; that he entered the bathroom, in response, saw the deceased sitting on the commode, and said to her, `What do you want?'; that he then observed a gun in her hand; that he slapped the gun out of her hand; and that, as the gun was propelled into the air, it was accidentally discharged in such a manner as to cause a bullet to penetrate the forehead of the deceased.
"While there appears much evidence from which inferences may be drawn upon the elements of the offense charged and the probability and improbability of the claims of the defense, it appears that the evidence which was of controlling force with the jury was the direct testimony of the daughter, in cintrast to the direct testimony of the defendant.
"It is obvious from the verdict that the jury gave credence to the testimony of the daughter and disbelieved the defendant. This testimony, offered by the state, buttressed by other established facts and reasonable inferences to be drawn therefrom, was sufficient to make a case of murder in the first degree."
Mr. John S. Ballard, prosecuting attorney, and Mr. Jackson B. Morris, for appellee.
Mr. Bernard J. Roetzel and Mr. J.P. Riddle, for appellant.
With reference to the second assigned error, defendant has selected a few phrases from the general charge of the court which, if taken out of context, might technically have required a slight addition, but, in context and as a part of the complete and comprehensive charge of the trial court, they could have been the basis of no possible error prejudicial to the defendant.
With reference to the fourth assigned error, the admission of evidence as to other offenses committed by the defendant was entirely brought on by evidence elicited by counsel for the defendant, and there was no prejudicial error in such admission.
With reference to the fifth assigned error, we have fully examined the arguments of the state and not only do not find them of an improper nature — although perhaps a bit zealous — but we find that at no place did counsel for the defendant make any objection to such arguments.
The really important claim of error in the present case presents a question which was the motivating reason for the certification of this cause to this court.
Upon conclusion of the court's charge, defendant's counsel requested the court "to charge in substance that the presence or absence of a motive is a circumstance which the jury may consider in determining the guilt or innocence of the defendant." This the court declined to do, and the query is, was the court in error in not so charging, and, if so, was the error prejudicial?
There can be no question that evidence of motive in murder cases is always relevant and material. The presence or absence of a motive upon the part of one accused of murder may always be considered by the jury, together with all other evidence and circumstances, upon the question of whether the accused is guilty. However, as this court said in the case of Fabian v. State, 97 Ohio St. 184, 119 N.E. 410, "the proof of motive is not essential to a conviction of the crime of homicide."
In the opinion in the Fabian case, it is stated:
"Motive is not an element of the crime of homicide required to be established to warrant a conviction. Proof of motive does not establish guilt, nor want of proof of motive establish innocence. If the guilt of the accused be shown beyond a reasonable doubt, it is immaterial what the motive for the crime, or whether any motive be shown. In doubtful cases the element of motive may be quite material in the determination of the guilt or innocence of the accused. But where the evidence is direct, and is so clear and convincing, and so thoroughly and completely establishes the guilt of the accused as does the evidence in this case, a verdict of not guilty on the ground that the jury could find no motive for the commission of the crime would be an absurdity."
Apparently the authorities are divided as to whether a trial court is required to charge upon the question of motive in a murder case. It is stated as follows in 41 Corpus Juris Secundum, 135, Section 359:
"Where there is evidence as to the existence or absence of a motive for the crime, the court may and should fully and clearly instruct the jury as to their right and duty to consider facts in evidence which tend to show the presence or absence of a motive for the offense charged, as a circumstance in determining the guilt or innocence of accused, and, where there is such evidence, it is error to refuse such an instruction, or to give an instruction which takes from the jury the right to consider such motive or the absence thereof.
"While some cases have held, without regard to, or mention of, the state of the evidence, that an instruction, that failure of the evidence to establish or prove any motive for the crime is a circumstance in favor of accused to be considered with the other facts in the case, need not be given even though requested, others have held that where there is evidence to support such instruction the court should charge that the absence of a probable motive is a circumstance favorable to accused, or at least a circumstance to be considered in weighing the evidence of guilt, some even holding that, where there is no evidence of motive, it is prejudicial error to refuse to give such an instruction.
"Where, however, the offense is admitted or clearly established, the court may charge that it is not necessary to prove a motive, and may refuse a request to instruct to the contrary.
"Where the intent which moved accused to the killing has been shown, it is not material that the jury be instructed as to the motive."
In our opinion, in a murder case, where the evidence is circumstantial, the identification of the killer is not shown by direct evidence, and, therefore, his identification must be proved, motive or lack thereof becomes an important question, and in such a case the trial court has a duty to instruct the jury that it should take the evidence on that question into consideration, together with all the other evidence and circumstances, in determining the guilt or innocence of the accused. However, where there is direct evidence of a deliberate killing without provocation, and the determination of the guilt or innocence of the accused depends upon the credibility of witnesses to the act of killing, the question of motive need not be submitted to the jury. Walker v. State, 138 Ark. 517, 212 S.W. 319; Powell v. State, 67 Miss. 119, 6 So. 646; State v. Gregory, 178 Mo., 48, 76 S.W. 970.
In the present case, if the jury believed that the daughter of the deceased was an eyewitness to the killing and believed her narration concerning it, there is no question that the defendant could be found guilty of murder, without regard to any question of motive. On the other hand, if the jury believed the narration of defendant that the deceased's death occurred as the result of an accident, he could be found not guilty. Under such circumstances, the determination of the guilt or innocence of the defendant depended entirely upon the credibility of the direct witnesses to the killing, and it was not essential that the court make any charge to the jury with reference to motive.
Motive need not be based solely on hope of material gain. Frequently, jealousy, disappointment and mortification constitute very strong motives for the commission of a murder, and those motives are apparent in every feature of the case before us, if the evidence of the state is to be believed as it apparently was by the jury. Therefore, a charge on motive, such as requested by defendant's counsel, could have only injuriously affected the defendant, and, assuredly, it was not prejudicial to him for the court to have refused it.
Because of the serious situation which this cause presents, we have carefully and seriously examined all the claimed errors and have come to the conclusion that the defendant had a fair and impartial trial, and that nothing occurred therein which warrants this court to reverse the judgment below.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS and BELL, JJ., concur.
TAFT, J., concurs in the syllabus, except as to paragraph four thereof, and in the judgment.
HERBERT, J., concurs except as to paragraph three of the syllabus.
TAFT, J., concurs in the syllabus, except as to paragraph four, and concurs in the judgment for the reason that the failure to charge on motive, as defendant requested, was not prejudicial error in the instant case.