Opinion
Decided February 24, 1932.
Criminal law — First degree murder of constable — Evidence admissible that another dead person found near shooting scene, when — Victim's statements, received as dying declarations, admissible when confirmed by defendant's testimony — Defendant's statement admissible as declaration against interest — Charge to jury — Special requests to be incorporated in general charge, when — Conviction sustained by evidence.
1. In prosecution for murder of constable, evidence that another person was found dead near place where shooting occurred held admissible where shooting of both persons occurred as part of same transaction.
2. Any error in reception of victim's statements as dying declarations held not to require reversal where statements, which related to identity of assailant, were confirmed by defendant's own testimony.
3. Defendant's statement that he was present at scene of shooting and fired rifle held admissible in murder prosecution as statement against interest.
4. It is sufficient if trial court incorporates in charge substance of special requests.
5. Evidence held sufficient to sustain conviction for first degree murder.
ERROR: Court of Appeals for Putnam county.
Mr. Albert H. Straman and Mr. John T. De Ford, for plaintiff in error.
Mr. Joseph J. Labadie, prosecuting attorney, Mr. A.A. Slaybaugh and Mr. B.A. Unverferth, for defendant in error.
Daniel Hunt, the plaintiff in error, was indicted at the May term, 1931, court of common pleas of Putnam county, for murder in the first degree, under Section 12402-1, General Code.
The indictment, omitting the formal portions, thereof, charged him, in substance, with unlawfully, purposely and willfully killing one Frank Conaway, a constable, while said Frank Conaway was engaged in the discharge of his duties as constable.
To this indictment, plaintiff in error entered a plea of not guilty. Upon the issues of fact thus made, trial by a jury was had, resulting in a verdict of guilty of murder in the first degree without a recommendation of mercy. A motion for a new trial was interposed, which was overruled, and plaintiff in error was sentenced to be electrocuted, on March 11, 1932, according to law. To reverse that judgment and sentence, this proceeding in error is prosecuted.
Some of the main facts in this case are not in dispute, and, briefly, they are as follows: On the night of September 23, 1931, Leon Mobouck, a farmer living near the village of Vaughnsville, Putnam county, Ohio, heard some one in his hog lot. He immediately, by telephone, called Frank Conaway, a constable of Sugar Creek township, Putnam county, Ohio, who in company with James Bryan, a deputy constable, went at once to the Mobouck farm house. Upon their arrival there they were met by Mobouck, and the three walked towards an automobile parked on the public highway in front of the Mobouck hog lot. They were armed, and as they neared the automobile Mobouck fired a bullet into the car, which bullet was later found in the automobile. The plaintiff in error was standing by the automobile. When Conaway, Bryan and Mobouck were a few feet from the automobile, a short conversation between Conaway and plaintiff in error took place, and thereupon plaintiff in error took from the automobile a 22-calibre repeating rifle and began shooting. Mobouck was shot through the chest, and, while running away from the automobile and towards his house, fell dead about two hundred feet from the car. Conaway was shot through the left shoulder and abdomen, and died the following day as a result of the wound in the abdomen. Bryan escaped any injuries. Soon after the shooting, plaintiff in error drove in the automobile to his home in Rushmore, where the sheriff of Putnam county later in the night apprehended him.
In addition to the foregoing facts, which as we have said are not in dispute, the state of Ohio offered evidence tending to prove the following facts: Plaintiff in error and one Price Gray went in an automobile to the Mobouck farm to steal a hog. They parked the car on the public highway in front of the Mobouck hog lot, and went into the field, where plaintiff in error killed a hog. They dragged the dead hog to a fence near the parked car. At this time the constable appeared on the scene and the shooting began. Gray, who was in a nearby field, was shot at by Bryan, and thereupon fled from the scene, walking to his home in Rushmore, a distance of six miles. Bryan did not shoot until after Conaway and Mobouck had been shot. The morning following the shooting, the dead hog was found near the fence and the blood on the ground showed where it had been killed and where it had been dragged. Eyeglasses, resembling those worn by plaintiff in error, and which he said he had lost, were found in the hog lot. The rifle used by him in the shooting was found in the kitchen of his home at Rushmore, and a sharp butcher knife was seen in his upstairs bedroom and the next night was found downstairs by the sheriff of Putnam county, with blood stains on it. Plaintiff in error, when arrested by the sheriff of Putnam county, denied having any knowledge of any shooting whatsoever that night.
The state also introduced evidence tending to prove that as Conaway, Bryan and Mobouck approached the automobile, Conaway said in a loud voice: "I am the constable from Vaughnsville. In the name of the law, you are under arrest. Stick them up." That plaintiff in error thereupon replied: "Stand back, we are only getting a hog." The plaintiff in error then shot a number of times when Conaway and Mobouck were facing the car.
Plaintiff in error testified in his own defense, and very frankly stated that he was the man who stood by the car and shot, but he denied that he knew Conaway was a constable, and said that he shot in self-defense, and that all that was said by the three men who approached the car prior to his shooting was "Stick them up." He claimed that he was in fear of his life, and believed that he was being held up and that his only way of escape was to shoot at his assailants. He denied that he was stealing a hog; denied that he had said "Stand back, we are only getting a hog;" denied that the eyeglasses found in the hog lot belonged to him; denied that he shot more than twice; and claimed he was repairing his automobile when the men approached the car and shot at him.
Certain statements in the nature of dying declarations, made by Conaway, in which he stated that plaintiff in error had shot him twice, were introduced in evidence.
There is no evidence in the record that after the shooting plaintiff in error told anybody about the shooting. Upon his arrival at his home in Rushmore, plaintiff in error was wet with perspiration and stated to a number of men then in his house that he had had a hell of a time. There are, of course, other facts in the record, but they are not important and hence are not mentioned.
The first assignment of error to which our attention is invited relates to the admission of evidence.
Over the objections and exceptions of counsel for plaintiff in error, the coroner of Putnam county testified that he found Leon Mobouck on the night of September 23, 1931, lying dead in the road, with a bullet hole through his chest, near the place where the automobile had been parked. It is insisted that this evidence is irrelevant and prejudicially erroneous to plaintiff in error, in that he was on trial for killing Frank Conaway and not for killing Leon Mobouck, and that the natural result of this evidence would be to inflame and prejudice the jury against the plaintiff in error. With this contention we do not agree, for the reason that the state of Ohio was entitled to show what occurred at the time Frank Conaway was shot and mortally wounded. The shooting of Conaway and Mobouck were parts of the same transaction, and hence were properly put before the jury to the end that it could determine who, if any one, was to blame for the shooting. It also tended to corroborate the testimony that more than one shot was fired from where the automobile was parked.
Over the objections and exceptions of counsel for plaintiff in error, a number of witnesses were permitted to testify to statements made by Frank Conaway after the shooting, wherein he implicated plaintiff in error as his assailant. It is insisted that these statements were not made as dying declarations, but were merely hearsay evidence, and hence improperly received. Some of the statements were clearly dying declarations containing all that appears in all statements made. All of the statements only went to the identification of plaintiff in error. And so, even if some of them were made by Frank Conaway at a time when he did not believe he was going to die, still, in the light of the record, their reception in evidence does not require a reversal of the judgment complained of, because plaintiff in error freely admitted upon the witness stand that he was the man who shot Conaway and Mobouck. True, plaintiff in error testified that he only fired twice, but there is abundant evidence that he shot oftener than that. Anyhow, so far as identification is concerned, plaintiff in error told the court and jury that he was the man near the automobile when Conaway, Bryan and Mobouck approached, and that he was the man who did the shooting, claiming, however, at all times, that he did not enter the hog lot, did not attempt to steal the hog, did not kill it, did not help drag it to the fence, but that his automobile was parked on the road because he was having engine trouble, and that while he was trying to fix his car he was attacked by three men who he thought were going to rob and kill him, and that he shot in self-defense, believing it necessary to do so to save his life.
The state of Ohio introduced in evidence, over the objections and exceptions of plaintiff in error, certain statements purporting to have been made by plaintiff in error, in which he was said to have stated that he was present at the scene of the shooting and actually fired his rifle at the three men when they approached his car. This evidence was clearly admissible. The statements were against interest. Furthermore, they are in accord with plaintiff in error's own version of the affair as he himself testified on the witness stand, with the exception that he claims to have fired in self-defense. The confession, if such it may be called, was beyond question voluntary.
Another assignment of error has to do with certain special requests submitted by counsel for plaintiff in error with the request that they be given before argument, which the trial court refused to do.
Under the law of this state, a trial court is not required to give special requests before argument, in criminal cases. The trial court is, however, required to at least incorporate the substance of the special requests, if they correctly state the law and are applicable to the issues involved, in his general charge. This the trial court did. 12 Ohio Jurisprudence, Section 944, page 922.
The general charge, taken as a whole, is correct and free from any prejudicial error. In fact, it is very favorable to plaintiff in error. Dull v. State, 36 Ohio App. 195, 173 N.E. 26.
The last claimed error pertains to the sufficiency of the evidence. In order to pass upon this assignment, we were compelled to read the entire record.
The controlling facts are as heretofore set forth, and confronted as we are with such facts we cannot say that the jury was not warranted under the rule of reasonable doubt in returning the verdict in question. In fact, as we see this case, there is abundant evidence to sustain the verdict.
The case was well tried. The learned prosecuting attorney, with his eminent assistants, placed before the jury and the trial court, in a most clear and concise manner, the state's contentions. They at all times were fair and just to plaintiff in error. Most able counsel defended plaintiff in error and protected his every right. Surely, in the light of the record, if the jury believed, and it obviously did believe, the evidence on behalf of the state of Ohio, plaintiff in error was justly convicted of a most dastardly murder.
Finally, having considered all the assignments of error presented by counsel in oral argument and in their briefs, we find none of them well taken; and further finding that plaintiff in error, upon the whole case, has had a fair trial, there remains nothing for this court to do but to affirm the judgment.
Judgment affirmed.
KLINGER and WILLIAMS, JJ., the latter of the Sixth Appellate District, concur.