
    No. 305
    WILLE v. STATE
    No. 19623.
    Supreme Court
    Motion for leave to file petition in error.
    
      Dock. Feb. 11, 1926;
    4 Abs. 128.
    225. CHARGE TO JURY — Where any facts are disclosed at the trial of one indicted for second degree murder, which would tend to show the committment of a lesser offense, should the court charge to jury concerning the lesser offenses?
    Attorneys — Ralph Becker and William Thorndyke, Cincinnati, for Wille; C. S. Bell and C. E. Basler, Cincinnati, and C. C. Crabbe, Columbus, for State.
   Harry Wille was indicted for second degree murder in which he was charged with killing one George Welsh.

It appears that one Joseph Reddington and George Welsh, deceased, while intoxicated became engaged in a fight. Welsh had a knife and was severely assaulting Reddington, who was too drunk to defend himself. Wille, an employee of the National Biscuit Co. happened along and witnessed the fight and saw Welsh abuse Reddington and upon Welsh attacking Wille, with a knife, Wille knocked him down by striking him with his fist, and upon Welsh striking his head upon tho pavement, he was killed as a result of a fracture of the skull.

Wille had an excellent reputation, had been in the employ of the National Biscuit Co. for 17 years and had received an honorable discharge which recited “excellent character”, from the Army in which he had served for 21 months during the world war.

The jury found Wille guilty of second degree murder and the judgment of the Hamilton Common Pleas was affirmed by the Court of Appeals.

Wille in the Supreme Court contends:

1. That the court erred in refusing to charge the jury concerning the lesser offense of assault and battery.

2. That the court committed prejudicial error in cross-examining Wille as follows:

“The Court:—

Q. Are you right handed or left handed ?
A. Right handed.
Q. Why did you leave the wagon?
A. When I seen the man in trouble I went to his assistance, after I seen the man in trouble.
Q. Was it your object to make an arrest of the man that was striking ? ?
(Objected to by counsel for defendant, objection overruled and counsel for defendant excepted).
A. No, sir, just a peaceful citizen.”

3. That the court erred in permitting the witness Reddington, over defendant’s objection and exception, to be asked for his opinion of the testimony, of the witness Howden.

4. That the court’s instruction to the jury as to the use of a weapon was prejudicial.

5. The defendant was entitled to offer in evidence his honorable discharge from; the Army in support of his claim of good reputation and character.  