1 Ohio Law. Abs. 391 | Ohio Ct. App. | 1923
Epitomized Opinion.
Mabel Champion was indicted for murder in the first degree. The evidence disclosed that on July 26, 1922, she shot a man named O’Connell in a restaurant in Cleveland, O. 1 The evidence disclosed that O’Connell was intoxicated at the time' -and also seemed to indicate that Mabel Champion and her husband had also. been drinking heavily. During 'the-course of a. quarrel in the restaurant, \ between O’Connell and her husband, she'shot-three.times'at O’Connell, two shots taking effect l and-causing--; his
1. While the assistant prosecuting attorney went beyond the scope of the evidence in his argument, this was not prejudicial, as the court clearly instructed the jury that the arguments of counsel could not be considered by them as evidence.
2. Where the evidence raised an issue as to whether the shooting was accidental or not, it was the court’s duty to instruct the jury that if they found that the shooting occurred as claimed by the accused, the killing would be accidental and the accused would not be guilty of any offense; and a failure so to charge was prejudicial error.
3. As the evidence was not clear as to whether the first shot took effect or not, the court erred in refusing to instruct the jury that if it found that the first shot took effect, it should also consider whether the accused shot in self-defense.
4. As a jury may render a verdict of guilty of assault and battery or battery only under an indictment for murder in the first degree, the court erred in refusing to instruct the jury on that subject.
. 5. Before the testimony of an expert concerning powder marks is admissible, a foundation must be laid showing that the clothing was in substantially the same condition at the time that it was examined as it was at the time of the shooting.