
    Nelson v. The State of Ohio.
    (Decided March 19, 1932.)
    
      
      Messrs. Woolley & Roivland, for plaintiff in error.
    
      Mr. John W. Bolin, prosecuting attorney, for defendant in error.
   Mauck, P. J.

Wilbert Nelson was charged with murder in the first degree. He was accused of killing Wilbur Cooper by shooting him with a shotgun. The jury found the defendant guilty of manslaughter, and, from the judgment entered upon that verdict, error has been prosecuted to this court.

The sole defense was that the accused was acting in self-defense. The testimony showed that the defendant was sixty years of age and quite infirm. The record would indicate that he was not robust either physically or mentally. He lived on a small parcel of land belonging to his sister. He was a bachelor and lived alone in one house, another being rented to Cooper. The evidence shows that Cooper had committed waste on the property by tearing boards off the house in which he lived, and off the outbuildings, for kindling, and that on the day on which he was shot he had taken a hammer and approached an outhouse with the purpose of tearing off some of the boards for fuel. The defendant stepped outside his house and called to Cooper telling him not to tear any more lumber off that building. Cooper said that he was not going to, and Nelson says that he thereupon told Cooper that he wanted the house; meaning that he wanted Cooper to move. He says that this made Cooper angry, and that Cooper started straight at him, looking mad and walking fast, with a hammer in his hand, the defendant meanwhile ordering him not to come over to the defendant’s side of the land. The defendant thereupon ran into the house, got his shotgun and returned to the outside, instantly shooting and killing Cooper. He testifies that he was in fear of Cooper and makes a fair sort of case of self-defense. Cooper was a young man and large, and there can be no question that in a physical encounter between the two the defendant would have had no show at all.

Under these circumstances the defendant was entitled to a charge upon the law of self-defense that adequately protected him. In one instruction given by the court at the request of the defendant the law of self-defense was accurately defined, and it was said that the defendant could invoke that doctrine if in the careful and proper use of his faculties he bona fide believed, and had reasonable grounds to believe, that the killing was necessary. In the general charge of the court, however, the jury were told that, while a man has a right to repel force by force, even to the extent of taking life in defense of his person, still “a bare fear, however, of being killed, or of receiving bodily harm, is not sufficient to justify one in inflicting serious injury or death upon another. It must appear that the circumstances were sufficient to excite the fear of a reasonable person similarly situated, and that the defendant acted in good faith.”

While the courts of this state have not always pursued an even course in defining the fear which one must entertain in order to rely upon self-defense, it seems now to be finally determined that guilt is personal, and that the conduct of any individual is to be measured by that individual’s equipment mentally and physically. He may act in self-defense, not only when a reasonable person would so act, but when one with the particular qualities that the individual himself has would so do. A nervous, timid, easily frightened individual is not measured by the same standard that a stronger, calmer, and braver man might be. State v. Sheets, 115 Ohio St., 308, 152 N. E., 664.

There was a further error in the case in excluding the defendant’s testimony as to what he knew of the character of Cooper. The defendant was not proposing to prove a general reputation of the decedent, but was seeking to prove the character of the decedent as the accused knew it. He proposed on the stand to testify to the way in which the decedent had conducted himself toward the latter’s wife and children. He proposed to show that the decedent was a man of rough habits, overbearing, domineering, and given to cursing and abusing the members of his own household. It appears to us that the jury, in determining whether this infirm old man was actually afraid of this young strong man, ought to have known how the old man viewed the young man, and that the jury was deprived of an essential element in the case when it was not permitted to know what the defendant had seen and heard the decedent actually do.

The other errors arising are without substance.

For the error in the charge pointed out, and for the-, refusal to admit the defendant’s testimony as to what he knew of the decedent’s conduct, the judgment is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Middleton and Blosser, JJ., concur.  