
    CRIMINAL LAW — HOMICIDE.
    [Jefferson (7th) Circuit Court,
    December, 1908.]
    Burrows, Laubie and Winch, JJ.
    (Judge Winch of Eighth Circuit Sitting in Place of Judge Cook.)
    David T. John v. State of Ohio.
    1. Impeachment of Witness by Testimony Given Before Grand Jury.
    When the ground has been properly laid for impeaching a witness, it is not error to permit a stenographer who took his testimony before the grand jury to state that certain questions were there asked the witness and answers given by him and the stenographer may refresh his memory from his written notes of such testimony.
    2. Mere Lapse of Time before Killing Does not Destroy Importance of Previous Quarrel.
    A charge to the effect, “If you believe beyond a reasonable doubt that time elapsed between the light on the hill and the killing, what was done in the previous quarrel will have little weight in this case. When a quarrel is over and the parties have separated, no one has a right to attack another to avenge himself or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned, it is entirely a separate occurrence, separate and apart, if time has elapsed,” is erroneous because it cuts off all weight to be given to the previous quarrel, upon the mere lapse of time.
    Error.
   WINCH, J.

Plaintiff in error was tried in the common pleas court on a charge of murder in the second degree, convicted and sentenced to the Ohio State Penitentiary for life. He asks that the judgment of the common pleas court be reversed for certain errors alleged to have occurred on the trial and because he thinks the evidence adduced at the trial did not warrant a conviction on the charge stated.

Considering first the errors said to have intervened at the trial: "We find no error in the rulings on the admissibility of the testimony of' E. Stanton Pearce, official stenographer, who was introduced for the purpose of impeaching the testimony of one of the defendant’s witnesses by showing that said witness had formerly made different statements before the grand jury.

The ground was properly laid for this examination and, while the stenographer had a transcript of the evidence taken by him before the grand jury in his hands and the prosecuting attorney used it in asking him questions, the record shows that the witness testified from independent memory, refreshed it is true by said transcript, that certain questions had been asked and were answered in a certain manner before the grand jury.

Any other witness could have testified to the same facts, had he knowledge of them and memory sufficient to give substantially what the witness had said.

The state did not offer the transcript of all the witness’s testimony before the grand jury; the accused did not insist that it all go in, and there was no error in permitting the stenographer to testify regarding the particular questions and answers, as to which the witness had been interrogated by the state when laying the ground to contradict him.

Attention is called to the following part of the charge:

“But the intentional killing, to be manslaughter, must be actually caused by passion arising out of provocation given at the time of the commission of the offense or so short a time before that there was not time for the blood to cool and reason to resume its sway over the mind; and the provocation may be whatever will commonly produce the degree of anger, rage or resentment in a person of ordinary temper, sufficient to render the mind incapable of reflecting. And, as I have already stated, if a person is engaged in the commission of something in violation of law — doing that which he had no right to do — and while in the commission of such an act, although not intentionally, he takes the life of another, he is guilty of manslaughter.
“Now, you will look to the evidence in this case, and, if you find from the evidence that the defendant killed William Webster and that he killed him purposely and unlawfully, but not maliciously, if it was done under such circumstances as would bring the offense within the crime of manslaughter, as I have defined it to you, then such should be your verdict.
“Now, in this regard there is some evidence in this ease tending to show that at some time before William Webster was killed, the defendant here in this ease and others including the deceased, William Webster, had some difficulty — had a quarrel. A great deal of evidence has been adduced in the course of this trial with reference to what took place at that time and there has been some contradiction in the evidence as to where the fault lay and as to what was done, at that time, but you are instructed, gentlemen of the jury, that whatever may have been done at that time, if you believe beyond a reasonable doubt from the evidence that time elapsed between that occurrence and the killing of William Webster, that will have but little weight in this case, as to what was done in the previous quarrel, for the reason, and you are so instructed as a matter of law, that when a quarrel is over and the parties have separated, that no one has a right to attack another, assail another, to avenge himself, or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned, it is entirely a separate occurrence, separate and apart, if time has elapsed. It is only admitted in evidence to show the condition of the mind of the parties, as bearing upon the condition of their minds at the time of the occurrence when the crime charged is committed, if you find it was committed.”

With this proper definition of manslaughter as a killing through passion arising out of provocation given at the time of the commission of the offense or so short a time before that there was not time for the blood to cool, was the last part quoted correct, which, for better understanding, may be paraphrased as follows:

“If you believe beyond a reasonable doubt that time elapsed between the occurrence on the hill and the killing, what was done in the previous quarrel will have little weight in this ease. When a quarrel is over and the parties have separated, no one has a right to attack another to avenge himself or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned it is entirely a separate occurrence, separate and apart, if time has elapsed.”

The mere lapse of time, without qualification, here cuts off weight to be given to the previous altercation. How much time, three seconds or thirty minutes or longer?

The evidence in this ease shows a fight on the hill a mile and a half from the village; there was a general battle between the accused’s party and the party of the deceased; it was no mere skirmish; all had been drinking. There is evidence tending to show that the deceased told one of his party to go ahead and get his revolver, that he would kill the accused; this man did start ahead of the crowd; the accused made similar threats and started ahead to get his gun; he passed the first man, got a gun and came back to meet the deceased and the main party. There is evidence tending to show that deceased then made further threats, said he would kill the little Welsh bastard (meaning the accused), and advanced upon him.

Then the accused’s gun was discharged, whether before the deceased grappled with him or not need not be determined.

That some time elapsed after the party separated on the hill before the shooting occurred, is certain; how long is really immaterial, for the general effect of the evidence is to leave the impression that the fight on the hill had not been abandoned, but was continued by mutual consent, being only postponed until the parties could get weapons to fight with. If such is the ease, it was all one transaction, but the jury must necessarily have been prevented from adopting this theory by that part of the charge which has been quoted. Hence it appeal’s that the jury was prevented from giving the proper consideration to that view of the evidence which would warrant a verdict for manslaughter instead of murder in the second degree.

We find no other error in the charge. It is otherwise clear and complete and the accused’s rights were further completely protected by the requests of his counsel to charge before argument, which were given.

As to the weight of the evidence: While a defense of accidental shooting was attempted and also self-defense was suggested, we can not say that the jury was clearly wrong in discarding these views, but we do think that it is doubtful whether more than killing during a mutual affray is shown by the evidence. We do not reverse the judgment on this ground, however, but solely for error in the charge, and the case is remanded for a new trial.

Burrows and La.ubie, JJ., concur.  