
    (Greene Co., O., Common Pleas Court.)
    STATE OF OHIO v. CHARLES MORRIS.
    
      Confessions of crime—
    If a man of sound mind, in the full possession of his mental faculties, under circumstances not calculated to disturb his reason or memory, or to induce him to make a false accusation of himself, eooly, deliberately, and seriously makes a confession of guilt, and a reasonable, natural cause for doing so is apparent, and the same is corroborated in material parts by other reliable testimony, the confession is entitled to much consideration. But, if the man is not of sound mind, or is not in the full possession of all bis mental faculties, or is .weak-minded, or the circumstances under which he is placed are of a nature to deprive him of the full and free exercise of his memory or judgment, or motives exist for making an untrue confession, or no natural motive for confessing his guilt appears, and especially where all these facts concur, the confession is to be received with extreme caution, and unless corroborated by other reliable testimony, but little, if any, weight can be given to it.
    Where one charged With crime has made confession of his guilt, there is no presumption of law that; at the time of making the confessions he was not of sound mind and not in the full possession of his faculties, and it does not devolve upon the state to prove that he was at the time of sound mind and of sufficient mental capacity to understand the nature, extent and effect of such confessions. But the burden of proof is upon the defendant to show that at the time of making such confessions he was not of sound mind, and was thereby incapacitated from understanding the nature, effect and extent thereof, which, however, the defense is not bound to establish beyond all reasonable doubt, but only by a preponderance of the evidence.
   Charge to Jury.

SMITH, J.

The defendant, Charles Morris, is charged in the indictment with murder in the first degree.

He is charged with having within this county on April 16, 1886, unlawfully, pur posely, and of deliberate and premeditated malice killed and murdered Eliza Douthett.

There are four counts in the indictment, each charging the commission of the crime of murder in the first degree, in a different manner.

In the first count he is charged with having unlawfully, purposely, and of deliberate and premeditated malice, killed Eliza Douthett, with an ax and club.

In the second count he is charged with having unlawfully,purposely, and of deliberate and premeditated malice, killed Eliza Douthett, by choking and strangling her with a rope.

In the third count he is charged with having unlawfully, purposely, and of deliberate and premeditated malice killed; Eliza Douthett by choking and strangling her into a state of unconsciousness and insensibility,and while in such condition placing her body in the house of Jonathan Douthett, saturating it with coal oil, pouring oil over the house, setting fire to the house, burning it and the-body of said Eliza Douthett, thereby causing her death.

In the fourth count he is charged with having unlawfully, purposely and of deliberate and premediated malice, killed Eliza Douthett, by beating her into a state of unconsciousness and insensibility with an ax and club, and while in such condition placing her body in the house of Jonathan Douthett, saturating it with coal oil, pouring coal oil over the house, setting fire to the house, burning it and the body of said Eliza Douthett, thereby causing her death.

All of these counts refer to the same-act and transaction. It is permissible-under the law to charge the same offense in the same indictment in different counts, for the purpose of meeting the-different phases the case may assume on the trial.

I will say to you now, that the state-has not offered sufficient testimony to support the charge made under either the first or the fourth count of the indictment.

These are the counts of the indictment, you will remember, which charge the commission of the crime of murder in the first degree by means of an ax and club, in the first count, and by means of an ax and club to render her insensible and unconscious, and burning her body in the house of Jonathan Douthett to which he set fire, thereby causing her death, in the fourth count.

As to these counts — -the first and' fourth, you need not consider further than that, when you come to render your verdict, you will find tne defendant not guilty as he stands charged in said counts.

This leaves for-your consideration only the second and third counts of the indictment.

To the indictment, defendant has pleaded not guilty.

The presumption of the law is, that the defendant is innocent. This presumption of innocence is not overcome by a mere preponderance of the evidence, but it stands as the shield of defendant until it is overthrown by evidence of such force that it satisfies your mrnds beyond all reasonable doubt that, he is guilty.

This necessary proof beyond all reasonable doubt, in order to find defendant guilty of any offense, extends to all the material elements of the offense.

If one purposely and of deliberate and premeditated malice, kill another, he is guilty of murder in the first degree.

The material elements of the offense charged in the second and third counts of the indictment, are:

That Charles Morris, on or about April 16, 1886, killed Eliza Douthett. That he purposely killed her of deliberate and premeditated malice.

The exact time alleged in the indictment is not material. Proof beyond all reasonable doubt that defendant killed Eliza Douthett on or about April 16, 1886, would be sufficient proof as to time under the indictment.

Before you can find that defendant purposely killed Eliza Douthett, you must be satisfied beyond all reasonable doubt,that defendant killed her with the purpose and intent to kill in his mind at the time of the commission of the act charged. “Purposely” implies an act of the will, an intention or design to do the act. It pre-supposes the free agency of the actor. Where a man acts as a free agent, he is held to intend the natural consequences of his act.

A purpose and intent to kill at the time of the commission of the act. is an essential element of murder in the first degree.

If you are not satisfied beyond all reasonable doubt that defendant purposely killed Eliza Douthett, defendant cannot be found guilty of murder in the first degree under either count in the indictment.

If you are satisfied beyond all reasonable doubt that defendant did, on or about April 16, 1886, purposely kill Eliza Douthett, you will then inquire whether defendant killed Eliza Douthett of deliberate and premeditated malice.

Malice may in general terms be defined to be the doing of a wrongful act without just cause or excuse. It is the dictate of a wicked, depraved heart. It is evidenced by the circumstances preceding and attending the act, as by threats, former grudges, planning to do an injury. or by an unusual degree of cruelty attending the act. It may exist in the absence of the passions of anger, hatred and revenge, for in law,malice is a wilfully formed design to do another an unlawful injury. To constitute deliberate and premeditated malice, the intention to do the injury must have been deliberated upon and the design to do it formed before the act is done, though it is not required that either should have been for any considerable time before.

A deliberate and premediated design or purpose,is one resulting from thought and reflection. If a person has actually formed the design or purpose purposely and maliciously to kill, and has deliberated or premeditated upon it before he performs the act, and then performs it, he is guilty of murder in the first degree however short the time may be between the premeditated purpose and its execution. It is not the time of deliberation and premeditation that is requisite, but the actual existence of the purpose, malice, deliberation and premeditation-; and it matters not how short the time, if the defendant has actually turned it over in his mind, weighed and deliberated upon it. The absence of an intent and purpose to kill, or the absence of malice, or the absence of deliberation, and premeditation would defeat a verdict of murder in the first degree under either count in the indictment.

Unless you are satisfied beyond all reasonable doubt of the presence of an intent and purpose to kill, and of deliberate and premeditated malice, and that Eliza Douthett met her death by violence at the hands of defendant, he cannot be found guilty of murder in the first degree under either count in the indictment.

I may say here, that if you are not satisfied beyond all reasonable doubt, that Eliza Douthett came to her death by violence inflicted by defendant, he cannot be found guilty of any ofíense.

The charge of murder in the first degree, includes also the inferior degrees of murder, that in the second degree., and manslaughter.

Where one purposely and maliciously kills another without deliberation and premeditation, he is guilty of murder in the second degree.

The intent and purpose to bill at the time of the act and malice are necessary elements in the crime of murder in the second degree. Manslaughter is the unlawful killing of another without malice, either voluntarily, as upon a sudden quarrel, or inadvertently, but in the commission of some unlawful act.

I have already stated that the presumption of the defendant’s innocence is not overcome by a mere preponderance of the evidence, but that such presumption of his innocence stands until overthrown by evidence of such force that it satisfies your minds of defendant’s guilt beyond all reasonable doubt. This does not mean that you must be satisfied beyond all doubt, but beyond all reasonable doubt. The law is too humane to demand a conviction while a reasonable doubt remains in the minds of the jury. You will be justified and required to considera reasonable doubt as existing if the material facts without which guilt cannot be established may be fairly reconciled with innocence. In human affairs absolute certainty is nost always attainable. From the nature of things reasonable certainty is all that can be attained on many subjects. When a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind beyond a reasonable doubt, a mere captious ingenious, artificial doubt is of no avail. If you are not fully satisfied, but find only that there are strong probabilities of guilt, or strong, suspicious circumstances, your only safe course is to acquit.

A number of alleged confessions of defendant, made as the state claims, in March, 1894, have been offered in evidence by the state, and it is for you to determine what, if any, weight such confessions are entitled to.

If a man of sound mind, in the full possession of his mental faculties, under circumstances not calculated to disturb his reason or memory, or to induce him to make a false accusation of himself, cooly, deliberately, and seriously makes a confession of guilt, and a reasonable, natural cause for doing so is apparent, and the same is corroborated by other reliable testimony, the confession is certainly entitled to much consideration. On the other hand, if the man is not of sound mind, or is not in the full possession of all his mental faculties, or is weak-minded, or the circumstances under which he is placed are of a nature to deprive him of the full and free exercise of his memory or judgment, or motives exist for making an untrue confession, or no natural motive for confessing his guilt appears, and especially where all these facts concur, the confession is to be received with extreme caution, and unless corroborated by other reliable testimony, but little, if any,weight can be given to it.

Where one charged with the commission of a crime has made confession of his guilt, there is no presumption of law that at the time of making the confessions he was not of sound mind and not in the full possession of his faculties, and it does not devolve upon the state to prove that he was at the time of sound mind and of sufficient mental capacity to understand the nature, extent and effect of such confessions. But the burden of proof is upon the defendant to show that at the time of making such confessions he was not of sound mind,and was thereby incapacitated from understanding the nature, effect and extent thereof. But he is not bound to establish such fact beyond all reasonable doubt, but only by a preponderance of the evidence. The preponderance of the evidence refers to the weight of the evidence, and when it is said that he must establish such fact of unsoundness of mind or mental incapacity at the time of making such confession, by a preponderance of the evidence, it simply means that the evidence tending to establish such claim must be more convincing and of greater weight, as proof of the fact, than the opposing evidence. It does not mean that he must produce a greater number of witnesses than the state on this point, but it is to be determined by the weight of the evidence without regard to the number of witnesses, or, the party producing them.

Were the confessions those of a man of sufficient mental capacity to understand and know what he was saying, and the nature, extent and effect of such confessions, or were they the rambling-statements of a man in delirium, not in the full possession of his mental faculties, made under circumstances of such a nature as to deprive him of the full and free exercise of his memory or judgment, or to induce him to make a false accusation of himself?

In determining this question, you are to consider all the testimony and circumstances in evidence tending to throw light upon it, the confessions, both oral and written; all that was said in connection with them, the meaning and import of the language used, the manner, conduct and statements of the defendant at and about the time the confessions were made, the physical condition of the defendant, the disease he had, and the effect of such disease upon the mental faculties,the fact that defendant had once been placed upon trial for the murder of Jonathan Douthett, the fact that he had been imprisoned the greater portion of the time alter said trial, and preceding said confessions, his attempts to commit suicide, and such other facts and circumstances as tend to throw light upon this question, for the purpose of enabling you to determine whether defendant was, at the time of making such confessions, a man of sufficient mental capacity to understand and know what he was saying, and the nature, extent and effect of such confessions.

Interwoven with and closely allied to this question, is that of corroboration; for should you find that the confessions are inconsistent or contradictory, or are contradicted in material and important parts by known and established facts, it would tend strongly to support the claim made in behalf of the defendant that the confessions were those of aman not in the full and free use of his mental faculties, made under circumstances of a nature to deprive him of the free exercise of his memory and judgment, and induce him to make a false accusation of himself.

On the other hand, if the confessions are not inconsistent, not contradictory, and not contradicted in any important or material part, by any known or established fact, but corroborated' in material and important parts by known and established facts, it would tend strongly in connection with other evidence, if any, to show that the confessions were made by a man in the full and free use of his mental faculties, knowing the nature, extent and effect of such confessions.

If you find from the preponderance of the evidence that the defendant at' the time of making such confessions was not in the full and free use of his mental faculties, or that they were made under circumstances of a nature to deprive him of the full and free use of his memory or Judgment, or which tended to induce him to make a false accusation of himself, they would certainly be very unreliable.

If you And from the preponderance of the evidence that at the time the confessions of the defendant were made, his mental condition was such as to render him incapable of understanding or comprehending the nature, extent or effect of such confessions, then no importance whatever should be given to them, and unless corroborated in material and important parts by known and established facts, would he entitled to no weight whatever.

If you And that the claim made on behalf of defendant, that at the time he made such confessions, he was of unsound mind, and incapable of understanding the nature, extent and effect of such confessions, or that they were made under circumstances of a nature to deprive him of the full and free use of his memory or judgment, or, which tended to induce him to make a false accusation of himself, are not supported by a preponderance of the evidence, and And that such confessions are consistent, coherent, and not contradictory; and if jou further And that such confessions are corroborated in material and important parts, by reliable testimony, and not contradicted in any material and important part by any known fact, such confessions would certainly be entitled to your careful consideration.

I have referred to the question of corroboration of the confessions in material and important parts. The corroboration referred to must be in material and important parts of the confessions which charge the offense therein set forth— parts which relate to the commission of the offense — for instance, the corroboration of the statements made in the written confession-that defendant lived with the Douthetts; that they lived about a mile from Xenia; that he lived with them four years, while it would be some corroboration, would in itself be in unimportant and immaterial parts — because they do not relate directly to the offense or the manner of its commission. They come more nearly under the head of a narration of facts which are only incidentally connected with the offense charged in the confession.

Using these as illustrations, if only that class of statements in the confessions are corroborated, while those directly'relating to the offense, and what ' occurred at the time of its commission, are contradicted or uncorroborated, then the confessions would not be corroborated in material and important parts.

But this class of statements in the confessions Just designated as the narration of facts, only incidentally connected with the offense charged, if corroborated, may properly be considered in connection with all that was said and done in determining whether defendant, when he made such confessions,was a man of sound mind and capable of understanding the nature, extent and effect of such confessions.

There can be and should be no conviction of a person charged with an offense, upon his confessions, alone, if uncorroborated to the extent above indicated.

It is claimed t^at the corpus delicti cannot be proved by confessions alone. By corpus delicti is meant, the body of the crime: In this case, Arst, that Eliza Douthett came to her death by violence. Second, the act of defendant in causing her death.

How, the claim made that the body of the crime cannot be proved by the confessions alone, as to the Arst' — that Eliza Douthett came to her death by violence —is true. But the confessions may be taken and considered in connection with other evidence, if any, either positive or circumstantial, tending to prove that Eliza Douthett came to her death by violence.

If you find beyond all reasonable doubt from the confessions, and from other evidence, either positive or circumstantial, that Eliza Douthett came to her death by violence, that would be the proof required by law of that part of the corpus delicti.

If there is no evidence, either positive or circumstantial, .except the confessions of the defendant, which shows, or tends to show tliat Eliza Douthett came to her death by violence, administered by some person or persons, then you should And the defendant not guilty.

But the confessions can be used or considered in evidence only in case you And that defendant when he made them was of sound mind, and mentally capable of understanding the nature, extent and effect of such confessions, and in case you further And that such confessions are corroborated in material and important parts, otherwise, you are to give them no weight whatever.

If you And that defendant made the confessions when he was of sound mind and mentally capable of understanding the nature, extent and effect of such confessions, and further And that such confessions have been corroborated in material and important parts, the question will still be with you as to the weight such confessions are entitled to.

You would then be called upon to determine whether or not the confessions, and the testimony in corroboration in important and material parts, if you so find, with all the other testimony in the ease, establishes . defendant’s guilt beyoud all reasonable doubt.

Marcus Shoup, T. L. Magruder, for the State.

T. E. Scroggy, R. W. Douglas, for defendant.

If it does not, you should acquit him.

If it does, you should return your verdict according to the facts, which you find are established beyond all reasonable doubt.

And here I call your attention to the fact that in considering the confessions, you are to consider all that was said at the time of making the confessions, so far as disclosed by the evidence. This applies as well to the confession which is claimed was reduced to writing. All that was said by defendant at the time so far as disclosed by the evidence should be considered by you.

While you are to consider all the confessions and each part thereof, and all that was said at the time of making' the same, so far as disclosed in evidence, it remains with you to determine what credit, if any, is to be given said confessions and to each and every part thereof.

You are the sole judges of the weight of the evidence, and the credibility of the witnesses. The manner and conduct of the witnesses on the witness, stand contradiction, if any, the reasonableness or unreasonableness of their testimony, corroboration or or want of corroboration, may all be considered by you. The fact, if fact it be, that the reputation of any witness for truth and veracity has been successfully impeached,leaves you, nevertheless, the sole judges of his credibility.

This charge will be sent to your jury room, and you may read it over if you desire. There is a common impression that somewhere in the charge to the jury will be found an intimation of the . court of its opinion upon the question at issue. Such is not the case. The jury are the sole judges of the facts, and it is beyond the province of the court to in any manner intimate its opinion as to the facts about to be submitted.

Neither are you to conclude from the fact that upon the close of the testimony offered by the state in chief, the defendant’s counsel having made a motion to direct the jury to return a verdict of acquittal, and the same having been overruled, that the court thereby expressed an opinion that defendant is guilty. The law is, that a motion to direct a verdict should not be sustained if there be some evidence tending to support the claim made by the state. Hence, the overruling the motion determined one thing only, to-wit: That this was not a case where the court could hold that there was no evidence tending to support the claim of the state; and the court was not called upon to express an opinion upon the guilt or innocence of the defendant.

The question of the guilt or innocence of defendant is solely for you to decide upon the evidence and the law as given you in this charge.

Defendant cannot be found guilty of any offense unless each one of you is satisfied that he is guilty of such offense beyond all reasonable doubt. Any verdict which you may return must be the verdict of each and every juror.

If you are satisfied beyond all reasonable doubt that defendant is guilty of murder in the first degree, as he stands charged in the second count of the indictment, you will return your verdict in accordance with such finding, and find him not guilty upon the first, third and fourth counts of the indictment.

If you are satisfied beyond all reasonable doubt that defendant is guilty of murder in the first degree, as he stands charged in the count of the indictment, you will return your verdict in accordance with such finding, and find him not guilty as he stands charged in the first, second and fourth counts of the indictment.

If you find defendant not guilty as he stands charged under either the second or third counts of the indictment, but find beyond all reasonable doubt that he is guilty of an inferior degree under either the second or third counts of the indictment, you will so return and state the degree.

If you are not satisfied beyond all reasonable doubt of defendant’s guilt, you will say so, and find him not guilty.

You will retire to your jury room, select one of your number to act as your foremaú, and when you have agreed upon a verdict, you will have your foreman sign it and you will return with it to the court room.  