
    The State of Ohio v. Sheets.
    
      Criminal law — Charge to jury erroneous — Self-defense—Belief in danger — Changing what man of ordinary prudence or firmness might do — Or whether circumstances justified reasonably cautious man in believing danger imminent.
    
    (No. 19707
    Decided June 15, 1926.)
    Certified by the Court of Appeals of Gallia county.
    
      Mr. F. E. Cherrington, prosecuting attorney, Mr. R. M. Switzer, and Mr. Hollis C. Johnston, for the plaintiff in error.
    
      Mr. A. B. Johnson, and Mr. Henry W. Cherrington, for defendant in error.
   By the Court.

The Court of Appeals of the Fourth District certified this cause to this court because the judgment pronounced by it was in conflict with a judgment on the same question pronounced by the Court of Appeals of the Third District, sitting in Van Wert county, in the case of Stewart v. State, reported in 105 Ohio St., 625, 138 N. E., 876. The conflict arose on the charge of the court.

Erie Sheets was indicted for murder in the second degree, and convicted of manslaughter. His defense in the trial court was that the killing was justified on the ground of self-defense — in the defense of himself and of his wife whom he claimed was being assaulted at the time of the killing. At the trial the court gave, as part of his general charge on self-defense, the following instruction to the jury:

“If you find that the defendant, Erie Sheets, * * * was attacked or assaulted by Aaron Sheets, or if you find that the defendant’s wife, without fault on her part, was attacked or assaulted by Aaron Sheets, in the defendant’s presence, and the defendant, as would any man of ordinary prudence or firmness, then honestly and sincerely believed that he or his wife was in imminent danger of receiving serious bodily injury, * * * and you further find that the circumstances were such as would have justified a reasonably cautious person in believing that danger of injury was imminent,” etc., then the defendant should be acquitted.

In charging what any man of ordinary prudence might do, or whether the circumstances justified a reasonably cautious man in believing in the immi nancy of the danger, etc., the trial court erred. In the Marts case, post, self-defense justification is placed on the grounds of the bona fides of defendant’s belief, and reasonableness therefor, and whether, under the circumstances, he exercised a careful and proper use of his own faculties.

While the courts of some states uphold this charge substantially as in the form given, the law of this state, for many years, has been otherwise, as shown in the reported case of Marts v. State, 26 Ohio St., 162. The Marts case was approved in the per curiam in Napier v. State, 90 Ohio St., 276, 278, 107 N. E., 535, wherein it is stated: That the Marts “rule has long been enforced in the courts of the state and has become firmly fixed as part of our criminal jurisprudence.”

The Court of Appeals did not err in reversing the trial court because of above error in the charge. While other parts of the charge were subject to criticism, we do not think them prejudicial. For the reasons stated the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  