
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court,
    Jan. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    PATRICK MORAN v. STATE.
    1. Evidence — Criminal Law — Statement by accused heard only by one of several by-standers competent — A statement or expression alleged to have been made by the accused at a time when several persons were present, but testified to as having been made only by one of those present, while others did not hear it, is competent, the weight of such testimony being left to the jury.
    
      2. Order of testimony — The order in which testimony as to some fact goes to the jury does not affect its competency, if it finally all gets to the jury.
    3. Permitting question whether there was a certain conversation when such conversation would be incompetent — It is not reversible error by the court to permit a question to be put, over objection, whether there was, or not, a certain communication by the deceased to his wife as to who assaulted him, when such a communication would'be incompetent if it had taken place. It is very common practice by the courts first to ascertain whether there was any conversation at all upon the subject to what the question related, either way, and then to determine its competency, if there is nothing disclosed from which the jury could rightfully draw the slightest inference.
    4. Description of accused on which officer arrested him — Where counsel for the accused, on cross-examining the officer who made the arrest, attempted to show that he acted recklessly and without any relible information and in bad faith, it is competent on reexamination to let him state that before starting out to make the arrest the wife of the deceased gave him a description of the man who made the assault, and to state what that description was.
    5. Incompetent Testimony must be prejudicial also to be ground for reversal of judgment — The testimony must be both erroneous and prejudicial before a judgment will be reversed because of its introduction to the jury. Where the testimony as a whole established no fact prejudicial to either the witness or accused, but there is nothing in this testimony that could by any construction have had the least weight with the jury in determining the verdict, it was of no" benefit to the State, nor injury to the plaintiff in error, ana its admission will not be sufficient ground for a reversal of the judgment.
    6. Good Character — Proof of — Effect—Previous good character, when established, is a circumstance to be considered in’”conneetion with the other evidence in the case’in determining the guilt or innocence of the accused, but does not raise any presumption whatever. It is a circumstance favorable to the prisoner "always to be considered,yet evidence establishing the chargehnay be so strong and conclusive as to render evidence of this character unavailing, In the practical application of such evidence, it has^nothing to do with the overt act of guilt; but it is proper that the jury should consider it when searching for a motive or purpose" of“deliberation, for it may well be supposed that a man of good character and reputable, and who has led a blameless life, would”not be as likely to indulge those passions and exhibit the depravity necessary to commit murder as one habitually'engaged in thejviolation ’ of law.
    7. - Verdict contrary to evidence as ground for reversal in criminal case, —A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, but^there is a marked difference between the practicable application of this rule in civil and criminal cases. In"a'eivil case'a verdict is authorized if supported by a bare preponderance of the testimony, but in a criminal case a verdict of guilty is only authorized when the evidence produced establishes the guilt of the accused beyond a reasonable doubt; and the verdict may be manifestly against the evidence, although supported by a preponderance of the testimony, for the reason that more than a preponderance of the testimony is required to warrant a verdict o guilty.
    8. Some — Evidence—Improbable Conduct of Accused — It is not safe to judge of the acts and conduct of one possessed of a wicked purpose to kill by the ordinary conduct of men who act from honest motives engaged in no unlawful enterprise. Murder itself is the exception, and not according to the ordinary rule of con-' duct in human affairs; and it is a matter of little surprise that the conduct of a murderer should not in all respects be consistent. The state of mind that would lead one to commit murder might naturally lead to other conduct not in all respects consistent with reason. But the fact that the transaction was strange and unnatural . should lead to a greater care and caution in weighing the testimony, and should always be considered by the jury.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J.

The plaintiff in error, Patrick Moran, was tried at the April term of the court of common pleas of this county, upon an indictment containing three counts, charging him with murder in the first degree in causing the death of James Fox. The alleged date of the crime was December 25, 1892. He was convicted of murder in the second degree on the first count of the indictment, and acquitted of all other charges. A motion for a new trial was overruled by the court, and a life sentence imposed.

A bill of exceptions was taken, and the record brought here for review.

The errors insisted on may be classified under three heads: , 1st. Decisions of the court upon objections made to the admission of testimony.

2nd. Errors in the charge of the court to the jury.

3rd. That the verdict is contrary to the evidence.

First — Did the court err in any of the rulings on the admission or exclusion of testimony ?

(1) On the night of the homicide and about one hour after the assault, Moran was arrested by two police officers without a warrant, and taken to the house of Theodore Blakeslee, 73 Church street, where the crime was committed. Blakeslee was assaulted and mortally wounded at!he same time the assault was made upon Fox, and undoubtedly by the same person.

At the time Moran was brought io his house, Blakeslee was lying on the floor in a dying condition, and did, in fact, expire a short time thereafter.

Mrs. Blakeslee claimed to have seen the murderer as he left the house after the assault, and was brought into the room for the purpose of determining whether Moran was the man she had seen. Several witnesses were permitted to testify to what occurred while Moran was there and in his presence, including statements made by Mrs. Blakeslee to or about Moran. The introduction of this testimony was resisted on the ground that Moran was at the time under arrest, and not called upon to make answer to charges made against him, and should not be prejudiced by the fact that he remained silent.

When brought into the room, Mrs. Blakeslee said in substance: “Yo.u are the man that killed my husband; you did it;” or ‘‘there is the man that killed my husband; he did it.” It will be conceded that if Moran had made answer to the charge thus made to him or in his hearing, both the statements made to him and his reply would be competent.

It appears from the record that testimony was given tending to establish the fact that Moran did not keep silent, but did speak. One witness says he heard Moran say in a low tone: /‘My God, did I do that?”

If this be true, the testimony was competent. It was not for the court to say that it was untrue, and therefore reject the testimony.

Many of the witnesses did not hear the statement of Moran, but that does not affect the competency of the testimony, if there was testimony tending to establish the fact that such statement was made by him and heard by others. Both statements may not be heard or testified to by the same person. Nor does the order in which the testimony goes to the jury affect its competency, if both finally get to the jury. For this reason alone the testimony was properly received.

But even if no statements were made by Moran, the testimony under the circumstances, was, we think, competent. We know that there is some conflict in the' decisions of the different states on this question, and while the precise point has not been determined by the Supreme Court of the state, we think the tendency of the decisions is in favor of the admissibility of this testimony, leaving the weight to be determined by the jury. Murphy v. State, 36 Ohio St. 628.

This testimony is of more or less value,depending upon the particular circumstances surrounding the accused at the time, and should undoubtedly be examined with great care and caution, as the jury were told to do in this case.

(2) During the examination of Mrs. Blakeslee, she was asked the following question:

“Q. I will ask you if you had any conversation with him. (meaning her husband) or heard any that was carried on by signs or otherwise, as to whom it was who assaulted him that night?”

To this question defendant’s counsel objected.

“The Court — He may answer yes’or no.”

“A. Yes, I did.”

“Q. What was that conversation?”

To which question an objection was sustained.

The claim is that the court erred in permitting the first question to be put, or answered at all. It is said that although the question is a preliminary one, the prosecuting attorney and the court knew that the subject-matter to which it related was clearly incompetent, and that the tendency was to prejudice the accused, and permit the state indirectly to get the benefit of a statement made by Blakeslee.

We think there is very little to base this claim upon. The court followed a very common practice in first ascertaining whether there was any conversation at all upon the subject to which the question related either way, and then determine its competency. There was nothing whatever disclosed from which the jury could rightfully draw the slightest inference. We can not presume the jury made an improper and unauthorized use of the testimony, and make that the basis of error.

We are not prepared to say that the court acted at all imprudently in allowing the question to be answered.

(3) The court the officer who made the arrest to state to the jury that before starting out to make the arrest Mrs. Blakeslee gave him a description of the man who made the assault, and to state what the description was. This evidence was received against objections of plaintiff in error.

It is shown in the record that counsel for the prisoner had cross-examined this witness at great length, in an attempt to show that the witness in making the arrest acted recklessly and without any reliable information, and apparently in bad faith. The testimony objected to was called out on re-examination, to show what it was that called the attention of the witness to the facts stated by him, and as fixing the information upon which he acted. For this purpose and in explanation of the testimony called out on cross-examination, the testimony was competent.

It was not offered or admitted to prove any facts bearing on the identity of the prisoner. The competency of the testimony is supported to some extent by a case reported in 25 N. J. L. 566. I Green,sec. 101.

(4) The State attempted, against the objection of the accused, to show that the wife of the accused visited the room of Fox on one or two occasions, but the attempt was a complete failure. This testimony was incompetent, it is true, unless brought to the knowledge of the prisoner, either by direct proof or by proof of such circumstances as ‘to charge him with knowledge of the fact. The testimony must be both erroneous and prejudicial before a judgment will be reversed because of its introduction to the jury. The testimony as a whole established no fact prejudicial to either the witness or accused. There was nothing in all this testimony that could by any construction have had the least weight with the jury in determining the verdict; it was no benefit to the State, nor injury to the plaintiff in error.

Many other exceptions are noted in the record to the decisions of the court on the admission and exclusion of testimony, to which we have been referred, and upon which we are notified counsel rely. It is wholly unnecessary to enter upon a discussion of each of these objections. We have already noted those upon which counsel seemingly place the most reliance. We have, however, examined with care all exceptions to which our attention has been called, and find nothing in them at all of which the plaintiff in error can justly complain; certainly no error for which the judgment should be reversed.

Again, it is claimed that the court erred in the instruc- • tions given to the jury upon the effect to be given to the evidence offered in the case of the previous good character of the accused, and in refusing to give to the jury two requests submitted by counsel for the prisoner upon that same subject. The two requests which the court refused to give are as follows:

“Prop. III. The defendant has put in evidence his character from being a peaceable man. This evidence it is your duty to consider in connection with the other evidence in this case by way of rebuttal of any inference that he would commit the act charged against him. The reasonable effect of the proof of the defendant’s good character in this case, is to raise a presumption that the accused was not likely to have committed the crime with which he is charged. While good character is no excuse for crime, it is a circumstance bearing indirectly on the question of the guilt of the accused, which it is your duty to consider in ascertaining the truth of the charge made against him in this case.
“IV. I will say to you farther with respect to this evidence introduced by the defendant tending to show that prior to the time he perpetrated the offense for which he is on trial, that should you find from the testimony in the case that he did attain a good character with respect to being a quiet, peaceable man, that of itself may be sufficient to create a doubt in your minds as to his guilt in this case. ’ ’

These requests were properly refused. The court was asked to determine the weight of the testimony offered instead of a request to state to the jury the object and purposes of the testimony referred to and the proper use to be made of it.

In the first request the court was asked to say: “The reasonable effect of the proof of the defendant’s good character in this cause is to raise a presumption that the accused was not likely to have committed the crime with which he is charged.’’

The reasonable effect of the testimony in this case was for the jury. It was not for the court to say as a matter of law that the proof offered in the case established the fact that the accused sustained a good character, nor that proof of his previous good character to the extent shown in the case raised any presumption whatever, The true rule un« doubtedy is that previous good character, when established, is a circumstance to be considered in connection with the other evidence in the case in determining the|guilt or inno-> cence of the accused.

It is a circumstance favorable to the prisoner always to be considered, yet evidence establishing the charge may be so strong and conclusive as to render evidence of this character unavailing.

The second request was equally objectionable.

But whether these requests were objectionable or not, if the instructions given to the jury on his point were correct, and all that was required to enable the jury to fully understand and apply the law to the facts of the case, there is no ground of complaint.

Upon this subject, the court said to the jury:

“The defendant has called sundry witnesses to testify of his good character, and as to his being a quiet and peaceable man. You have heard this testimony and the opportunity they had of knowledge on that subject. In the practical application of this evidence in the case, it will not be claimed it has anything to do with the overt act of guilt; but it is proper you should consider it when you are searching for a motive or purpose of deliberation, for it may well be supposed that a man of good character and reputable, and who has led a blameless life, would not be as likely to indulge those passions and exhibit the depravity necessary to commit murder as one habitually engaged in the violation of law; for this purpose it is proper that we should consider it.
“It is evidence, offered and to be considered tending to render more probable the claim made by the defendant, that he did not commit the act. The general rule is to be kept in mind, however, that as against guilt clearly proved, good character will not avail to acquit. ’ ’

The first clause of the statement standing alone might not be understood by the jury; but taken in connection with the statement following it, defining the purpose for which this testimony is offered and to be considered, it could not have misled the jury. We suppose the court intended to say that this class of evidence was of no value in establishing the -corpus delicti. For this clause is followed immediately with the statement that this evidence may be considered in determining the motive, purpose and deliberation, essential elements of the crime charged, and was also “evidence offered and to be considered tending to render more probable the claim made by the defendant that he did not commit the crime.”

This was giving to the accused, we think, the full benefit of the law upon that subject.

Other exceptions were noted in the charge, but not, we understand, seriously insisted upon. But whether that be so or not, there was no error in the charge as given or in refusing the instructions asked.

Lastly, it is claimed that the verdict of the jury is contrary to the evidence.

In considering this alleged error we are to be governed by the rule of law early announced by the Supreme Court of the state and uniformly adhered to by that court.

The law is concisely stated in Breese v. The State of Ohio, 12 Ohio St. 146, where it is said:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so when the doubt of its propriety arises out of a conflict in oral testimony.

There is, however, a marked difference between the practicable application of the rule in civil and criminal cases.

The condition in the two cases are entirely different. In a civil case a verdict is authorized if supported by a bare preponderance of the testimony, but in a criminal case a verdict of guilty is only authorized when the evidence produced establishes the guilt of the accused beyond a reasonable doubt; and the verdict may be manifestly against the evidence, although supported by a preponderance of the testimony, for the reason that more than a preponderance of the testimony is required”to warrant a verdict of guilty.

The case turned upon the identification of the plaintiff .in error as the author of the crime.

Of those at the Blakeslee house at the time of the homicide, there were called as witnesses: Mrs. Blakeslee, Ada Davis, Arthur Blakeslee (10 years of age) and W. E. Williams.

Mrs, Blakeslee had more than ordinary means of identification ofjjthe accused. For two months prior to this transaction, Moran had made frequent visits to Fox, who roomed at Blakeslee’s house; and she came to know him as a friend of Fox, though not by name. On this night, as her testimony appears in the record, she heard Moran’s voice at the door as he inquired for Fox, but did not then know it was Moran; after the assault, she saw him face to face in a light sufficient to enable her to identify him as the man she had seen on his visits to Fox. ■ About an hour after this man was brought into her presence and identified as the one whom she had seen leave the house in the manner described by her. Mrs. Blakeslee was not testifying to the identity of a stranger whom she had seen but once, but one with whose features and appearance she was more or less familiar. She swears positively that the man she saw on that evening was Moran.

She is corroborated, to some extent at least, by the witness Miss Davis and the boy Arthur. We do not believe these witnesses were guilty of corrupt perjury as is claimed by counsel for Moran."

It is said that the transaction as described by these witnesses is so unnatural and contrary to human experience that it should not have been believed by the jury; and it is suggested that Fox and Blakeslee killed each^other.

This suggestion finds no support in the testimony. Both Fox and Blakeslee were wounded in a similar manner, and undoubtedly by the same instrument in the hand of the same man. There was but one hatchet'found after the assault, and it could not have been used by each of these persons to mortally wound the other.

Nor is it safe to judge of the acts and conduct of one possessed of a wicked purpose to\kill by the ordinary conduct of men who act from honestjmotives engaged in no unlawful enterprise.

Murder itself is the exception, and not according to the ordinary rule of conduct in human affairs; and it is a matter of little surprise that the conduct of a murderer should not in all respects be consistent. The state of the mind that would lead one to commit murder might naturally lead to other conduct not in all respects consistent with reason.

The fact that the transaction was strange and unnatural should lead to greater car.e and caution in weighing the testimony, and should always be considered by the jury.

In addition to the testimony of these witnesses there were a number of circumstances of some value shown in the record proper to be considered in^jdetermining the point now under consideration.

The first of these is the. conduct of the accused when charged wtih being the author of the crime on the night of the homicide at the Blakeslee house — the circumstances of which have been stated.

If he did say, as one witness says he did, “My,God! did I do that?” it was quite important. If, however,as assumed by the counsel for the accused, nothing was said, it was of some value. If Moran was innocent of the charge made against him, it would seem but natural that he should have said something. We do not accept the excuse for not doing so that there was no time given him for a reply.

Again, Moran at and before this transaction was in the employment of the American Tool Company. The hatchet left at the Blakeslee house after the assault was a peculiar one. The head was octagon, two sides of which were bronzed; the edge/was jnicked, the head loose and somewhat battered, Prior to/thej^assault a^hatchet of precisely this discription was at the factory where Moran was employed. There was some testimony tending to establish the fact that Moran took a hatchet home with him shortly after the assault at the factory. This^testimony, was of some value, and should not be overlooked.

Form & Dawley, for plaintiff.

Neff & Strimpel, for the state.

Again, the blood^spots upon the clothes of Moran should not be overlooked. There were small spots of blood upon both sleeves of the coat, slight traces of blood on the vest, also near the arm-hole, On the left sleeve of shirt, on the cuff, two blood stains, one one-half inch long; a slight trace on the neck tie, and a large smear of blood on the left side""pocket ofthe pantaloons.

Some of the statements of the accused were well calculated to challenge'the- closest scrutiny. I will not stop to enumerate'them in detail, but his account of what transpired "while he was at the Blakeslee house, and his ignorance of the place and the purpose for which he was brought there, were/somewhat unnatural.

A review of jthis entire record fails to convince us that the verdict of the jury was manifestly contrary to the evidence. We are satisfied that the accused had a fair and impartial trial, and we see no reason for setting aside the judgment and sentence.  