Blanche B. Halsey was indicted, convicted, and sentenced on a charge of second degree murder for killing her brother, Fred Bonham, on September 4, 1931. A great many alleged errors are assigned as grounds for a new trial.
The salient facts in the bill of exceptions show that Mrs. Halsey was a widow about 68 years of age, residing with her unmarried brother in Bowling Green. He died in bed about one o'clock in the morning of September 4, as the result of a gunshot wound which caused instant death. Mrs. Halsey was the only eyewitness, and she did not take the stand and testify in *Page 293 her own behalf. She did, however, after the death of Fred Bonham, make various statements to Dr. Halleck, to Dr. Whitacre, the coroner, and to Carl Gallier, chief of police, and these witnesses testified in detail as to her admissions and the circumstances surrounding the death. From her statements it appears that her brother occupied a downstairs bedroom, and that she occupied a bedroom located upstairs. He went to bed about nine o'clock on the evening of September 3, and shortly thereafter she retired. She says that during the night she was awakened by hearing a queer noise downstairs, and got up and went down, but, discovering nothing out of the way, returned to her bed, and that in the course of an hour or two, for some reason she does not know what, she again got up and walked down stairs. She was, according to her statements, awake on both occasions when she went down stairs, and on the second trip she went into her brother's bedroom. The head of the bed was located toward the east, and her brother was lying on his left side facing the south. She went in from the north, and says she found the shotgun lying on the bed with the muzzle pointing toward the head of the bed. Her statement is to the effect that she picked up the shotgun and it went off, and that she then laid the gun down on the floor and called Dr. Halleck on the telephone.
Mrs. Halsey seems to have borne a good reputation prior to this occasion, and there is testimony tending to show that she and her brother got along on friendly terms, but she informed the chief of police that she was afraid of her brother, and that they had had an awful time around there; that when her brother, Mr. Bonham, was not well "she had to help take care of him every morning or so; what she said, was the terrible things she had to go through with." The evidence discloses that her husband had died a few years earlier, after a lingering illness caused by a cancer, during which time she had nursed him, and that she *Page 294 was afraid of cancer, and suspected that her brother, who had been in poor health for a long time, had that disease. She said her brother owned nothing; however, she and her brother had a joint safety deposit box in a bank in Bowling Green, and, after her brother's death, the chief of police accompanied her to the bank, where they opened the box and removed the contents. On that occasion she crumpled a piece of paper and put it in her pocket, but, upon the chief of police informing her that he must have it, she said it was of no importance and she intended to burn it; but she handed it to him and it proved to be her brother's will. The bill of exceptions discloses that he owned some $1,500 or $2,000 worth of property, and that, if he had died intestate, she would be his only heir, but we are not advised of the contents of the will.
The shotgun is a double-barreled gun, and belonged to her brother, being kept to her knowledge in a closet near the head of his bed. Only one barrel of the gun was fired, and the officers found that the other barrel contained a loaded shell. Manifestly the death of Bonham was caused by the one shot fired from this gun. The shot entered the back of his head near the center, and took a downward course, some of the shot lodging under the skin on the left side of his face.
Three theories are advanced in an attempt to explain the death of Fred Bonham, namely, that he committed suicide, that, if plaintiff in error fired the shot that killed him, she did it while in a state of somnambulism, and that he died as the result of an accidental discharge of the gun. She told Dr. Halleck that she thought her brother committed suicide, and yet the gun was fired only once, and she stated that it went off while in her hands. When the gun was fired, it must have been in a position above her brother's head, as the shot took a downward course. In view of the fact that the undisputed evidence shows the wound to have caused instant death, the jury could not well believe *Page 295 that Bonham himself fired the shot and was able thereafter to lay the gun down on the bed behind him, changing its direction so that it would be pointing to the head of the bed.
The record contains some evidence tending to show that at times Mrs. Halsey was afflicted with somnambulism, and occasionally walked in her sleep, but her own statements show that on the night of her brother's death she was awake both times when she went down stairs, and we find no evidence in the record showing that she was asleep at the time her brother met his death. It is suggested in argument that she was asleep until the time the gun went off and that the explosion awakened her, but the evidence fails to support that claim. She apparently had a clear recollection of what occurred up to and including the time she called Dr. Halleck on the phone, although her statements are not wholly consistent.
We are not impressed with the contention that the gun was accidently discharged. She came into the room from the north, facing the bed where her brother lay with his back towards her, the gun, according to her statement, lying parallel with him on the bed, with the muzzle pointing toward the head of the bed. Her statements justify the inference that all she did was to pick up the gun, whereupon it went off, and yet, as already stated, the gun, when fired, must have been above the brother's head and pointing a downward course.
In weighing the evidence in this case, the jury could not fail to take account of the fact that the defendant did not testify in her own behalf. Article I, Section 10, of the Constitution of Ohio, provides that "no person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel."
According to the testimony of disinterested witnesses, *Page 296 Mrs. Halsey made numerous damaging statements, and those statements called loudly for explanation, if she had any explanation to make. If the circumstances were capable of explanation, she alone could furnish it, but she chose to make no denial and to avoid cross-examination. In the absence of an explanation, the jury could not be criticized for giving due weight to the incriminating facts and circumstances and returning the verdict it did.
The verdict and judgment are not manifestly against the weight of the evidence.
It is earnestly insisted that, if the defendant is guilty at all, she is guilty only of manslaughter, and not second degree murder, and that this court should modify the verdict and reduce the degree of the offense to that of manslaughter. Under the provisions of paragraph 4 of Section 13449-1, General Code, the power to modify a verdict in a criminal case and reduce the crime of which the defendant was convicted to a lesser included offense is given to a reviewing court in cases where such action is warranted by the evidence. However, on the evidence in the case at bar, the crime was clearly that of murder in the second degree and not manslaughter.
Some forty written requests to charge before argument were submitted by counsel for defendant, a number of which were given and others refused. Among those refused, especial reliance is placed on No. 9, which reads as follows: "The court further instructs the jury that when the evidence fails to show any motive to commit the crime charged, on the part of the accused, this is a circumstance in favor of her innocence. And in this case, if the jury find, upon a careful examination of all the evidence, that it fails to show any motive on the part of the accused, to commit the crime charged against her, then this is a circumstance which the jury ought to consider in connection *Page 297 with the other evidence in the case, in making up their verdict."
The contention is made that this request should have been given under the authority of Neiswender v. State, 28 O.C.A., 545, 30 C.D., 417, but the instruction does not come within the rule as there announced. It selects a single fact, and instructs the jury that a failure to show that particular fact is a circumstance in favor of innocence, while it could only be considered in connection with the evidence and other circumstances in determining the guilt or innocence of the accused, and on that the court instructed the jury in the general charge.
In so far as other requests to charge contained proper statements of law pertinent to the case, they were substantially given in the general charge of the court.
The trial court restricted the argument to one hour and a half on each side, and it is insisted that this deprived the defendant of a constitutional right. The case was comparatively short for a murder case, the evidence embracing only about 100 pages. The matter of limitation of argument is within the sound judicial discretion of the trial judge, and will not be interfered with, unless there has been an abuse of discretion or the limitation is of such a character as to deprive the defendant of a constitutional right, which we do not find to be true in this case.
Complaint is made that the bailiff or court constable who had charge of the jury was not sworn in accordance with the requirements of Section 13443-16, General Code. That section provides that, when an order shall have been entered directing the jurors to be kept in charge of the officers of the court, an oath shall be administered by the clerk to the officers, requiring in substance that they keep the jurors from separating and from suffering any communication to be made to them, and that the bailiff or constable shall *Page 298 not communicate with them. The journal entry shows that the trial judge, who resided in another county, desired, after charging the jury, to return to his home, and that it was agreed by counsel that the resident judge should receive the verdict of the jury, which was then deliberating. The journal entry further shows that at 5:30 p.m. the jury and the court constable were instructed by the local judge that they were not to separate, nor to communicate with any one, and the court constable was instructed that the jurors should not be permitted to separate, nor to communicate with any one, and the entry shows that these instructions were given in the presence of the defendant and her counsel, Benjamin F. James, who remained silent and made no objection. The jurors were then conducted to a restaurant by order of the court, in the custody of the bailiff or court constable, and furnished with refreshments, after which they returned to the jury room and resumed their deliberations. The journal entry covering this transaction does not show whether any oath was then administered to the court constable, as required by the section just cited. It is sought to be shown by affidavit that no oath was administered at that time. The affidavit of the defendant herself states that "no judge caused the clerk of said court to administer to said W.R. Marwick, court constable and bailiff, the oath required by Section 13443-16."
Defendant further states in her affidavit that she "did not discover said error on the part of the trial judge in his failure to cause the said clerk to administer the said oath" until within the last three days. It is well to remember that the statute imposes upon the clerk of the court the duty to administer the oath, and the defendant nowhere stated in her affidavit that he did not perform that duty; her affidavit only going to the extent that the judge failed to cause him to perform the duty. The affidavit of her attorney Benjamin F. James, who was present on the occasion, *Page 299 merely states that the judge "did not administer any oath to him [the bailiff] as required by Section 13443-16 of the General Code." It is sufficient to say that the statute does not require the judge to administer the oath, but provides that it should be administered by the clerk, and neither affiant swears that the clerk failed to administer the oath. The affidavit of George A. Cheney, the other counsel for the defendant, states that he was not present on the occasion, and that what he learned came to him by reports from others. The affidavit of the court constable is introduced, which shows that he obeyed the order of the court and permitted no one to communicate with any of the jurors, and that the jurors did not communicate with any other person, nor did any person attempt to communicate with them, nor did they separate.
The provisions of Section 13443-16, General Code, requiring the administering of an oath by the clerk of courts to the bailiff or court constable, are mandatory, but it does not necessarily follow that the failure on the part of the clerk to comply with the statute requires the court to grant a new trial. Counsel cannot sit idly by, observing that no oath is administered, and not objecting to the failure to administer the oath, and then, after the verdict is returned, first make complaint of such failure, where the bailiff properly performs his duty and where no prejudice results to the defendant from the failure to administer such oath. To grant a new trial under such circumstances with the bailiff fully performing his duty, and no prejudice resulting, would be a return to the technicality once employed in administering criminal law.
The state of Iowa has a statute similar to the one above cited, and yet the Supreme Court of that state, in State v. Crafton,89 Iowa 109, 119, 56 N.W. 257, while holding the statute mandatory, refused a new trial for the reason given above.
Many cases to the same effect may be cited, but we *Page 300 only call attention to Atterberry v. State, 56 Ark. 515,20 S.W. 411; State v. Crilly, 69 Kan. 802, 77 P. 701; Dreyer v.People, 188 Ill. 40, 58 N.E. 620, 59 N.E. 424, 58 L.R.A., 869;Dreyer v. Illinois, 187 U.S. 71, 23 S. Ct., 28, 47 L. Ed., 79;State v. Frier, 118 Mo., 648, 24 S.W. 220; People v. Johnson,110 N.Y. 134, 17 N.E. 684.
The succeeding section of the General Code, to wit, Section 13443-17, requires that the jurors, if they are permitted to separate, shall first be admonished by the court. That language is mandatory, and yet the Supreme Court, in Warner v. State,104 Ohio St. 38, 135 N.E. 249, held it was not reversible error to fail to comply with this requirement, where the jury was in fact not guilty of misconduct or indiscretion and counsel observed the omission and failed to call the attention of the court thereto.
The statute requires that witnesses, before testifying, shall be sworn; yet it would hardly be claimed that counsel could sit by when a witness is called, and takes the stand and testifies without being sworn, and make no objection thereto, and then, in the event of an adverse verdict, be entitled to a new trial because the witness testified without being sworn. The conclusion that the plaintiff in error is not entitled to a new trial on this ground is compelled by the requirements of Section 13449-5, General Code, providing that a new trial shall not be granted for any cause unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.
The failure to administer the oath is sought to be established by affidavits attached to a supplemental bill of exceptions, but, under the decision of State v. Young, 77 Ohio St. 529,83 N.E. 898, the failure, if there was a failure, should have been shown by the certificate of the judge, where it does not appear in the journal entry. *Page 301
The failure of the clerk, if he did fail to administer the oath, not being distinctly shown, it will be presumed in favor of the regularity of the judgment that he performed his duty. The statute does not require that the oath shall be administered at the particular time referred to in the affidavits. The instructions then given to the plaintiff were by the local judge, and it may be true that the clerk had theretofore administered the oath during the progress of the trial. In this connection, we call attention to the fact that the certificate to the supplemental bill of exceptions does not show that the bill contains all of the evidence on the motion for a new trial, but only certifies the bill of exceptions "to be true."
We have given careful attention to all the assignments of error, but, as we find no prejudicial error, the judgment is affirmed.
Judgment affirmed.
LLOYD and WILLIAMS, JJ., concur.