Defendant-appellant, William J. Schmidt, was tried by a jury on a murder indictment in the Court of Common Pleas of Lucas County. During the presentation of defendant's evidence, the state moved for a mistrial on the ground that the trial court had improperly admitted evidence of the violent character of the victim, Robert Slough. Over defendant's objection, the trial court declared a mistrial and discharged the jury.
When the case was rescheduled for a new trial, defendant moved to dismiss the indictment, contending that he was being placed in double jeopardy for the same offense. Defendant's motion to dismiss was overruled.
Defendant now appeals from the order declaring a mistrial and from the final judgment overruling defendant's motion to dismiss the indictment. *Page 241
At the trial, defendant claimed self-defense. Defendant was superintendent and general foreman of a construction company in charge of installation of a sewer main. Slough was his subordinate, employed as a pipe layer. A few weeks before Slough's death, defendant had discharged Slough for insubordination.
On the evening of Slough's death, defendant left a restaurant after dinner. Defendant had a weapon concealed on his person. Slough followed defendant out of the building. Neither had spoken to the other inside the restaurant. The confrontation by the two men outside the restaurant was unnoticed by anyone else until defendant fired the fatal shot at Slough.
In support of his claim of self-defense, defendant, in cross-examining the state's witnesses, elicited testimony that Slough's character and reputation was that of a violent person. Two deputy sheriffs testified that Slough had a reputation for violence and that he was known to law enforcement authorities as a violent person. Slough's widow admitted that his violent treatment of her on several occasions resulted in calls to the sheriff's department for assistance.
In presenting his defense, defendant offered testimony of two other deputy sheriffs who were physically abused by Slough when they answered a distress call from his wife. Defendant also introduced copies of police reports of Slough's violence toward his wife, her children and her mother.
Following this testimony, the state moved for a mistrial on the ground that at the time of the shooting defendant did not know of the specific instances of violent behavior on the part of Slough. Defendant was thereupon interrogated, in camera, by counsel and the trial judge. Defendant admitted that while he knew of Slough's reputation for violence he had no knowledge of specific incidents.
Defendant requested that the court reserve ruling on the motion for a mistrial until all the evidence was presented to the jury. The trial court denied defendant's motion, but, granted the state's motion for a mistrial over defendant's objection.
Defendant contends that the evidence of Slough's acts of prior violence was admissible; that as a consequence, the order of mistrial was contrary to law; and that for this reason, the indictment should be dismissed to avoid violation of defendant's constitutional rights under the Double Jeopardy Clause. *Page 242
The defense advances two reasons for the admissibility of Slough's prior violent acts: (1) by placing the character of the victim, Slough, in issue in the case in chief, the state opened the door for defendant to present evidence of specific instances of the deceased's violent conduct; and, (2) even if the state had not placed the victim's character in issue, such evidence was nevertheless admissible either on the question of who the aggressor was or as tending to impeach the testimony of Slough's widow that her husband was not of a violent nature.
Additionally, defendant contends that the trial court should not have declared a mistrial until all other alternatives to cure the alleged error had been fully considered and discarded.
In support of the first reason, involving the state's placing the character of the deceased in issue in its case in chief, defendant directs our attention to the following testimony of Slough's widow produced by the state on direct examination:
"Q. Now what kind of a provider was your husband? Did he support his family?
"A. Yes.
"Q. Did you have a good family life?
"A. Yes.
"Q. Reasonable family life?
"* * *
"Q. What kind of surgery are you talking about?
"A. * * * So, physically, he knew that, you know, he couldn't stand to fight, really or any physical violence. So, I don't really know, you know, what sparked him into following Mr. Schmidt outside, because at that point —."
The purpose of such testimony could only be to show that the decedent, Slough, was a quiet, peaceable man who provided for his family and was not inclined to fighting or physical violence.
It is an elementary rule that the state, in its case in chief, may not introduce testimony in a murder case evidencing the character and reputation of the deceased victim as a quiet and peaceable person. Carr v. State (1900), 21 C.C. 43, affirmed (1902), 65 Ohio St. 612; 40 American Jurisprudence 2d 577, Homicide, Section 308. However, for tactical reasons or otherwise, defense counsel did not object to this incompetent *Page 243 evidence introduced by the state. It was, therefore, properly admitted in evidence.
Another elementary rule, applicable to such evidence introduced by the state, is as follows. If incompetent evidence is admitted on behalf of one party, evidence contra, offered by the adversary, is admissible to rebut or explain the tainted evidence. 21 Ohio Jurisprudence 2d 213, Evidence, Section 202. The state, by introducing evidence that Slough was a peaceable man and a good family man, was placing Slough's character in issue; and, by such action, the state gave defendant the right to offer countervailing evidence to prove that the decedent, Slough, was neither a good family man nor a quiet and peaceable person.
In support of the second reason, involving the right of defendant to offer evidence to establish who the aggressor was and to impeach the testimony of Slough's widow that her husband did not have a tendency toward violence, defendant directs our attention to the following well-settled principle of law. When evidence of the deceased's violent character is offered "* * * to show the defendant's state of mind, it is obvious that the deceased's character, as affecting the defendant's apprehensions, must have become known to him; i.e., proof of the character must indispensably be accompanied by proof of itscommunication to the defendant; else it is irrelevant. * * *" (Emphasis sic.) 1 Wigmore on Evidence (3 Ed. 1940) 467, 470, Section 63. But, when evidence of the deceased's character is offered to show that he was the aggressor, "* * * this additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief. * * *" 1 Wigmore on Evidence, supra, at pages 470 to 471. Where competent evidence of character is offered for the purpose of showing that the deceased victim was the aggressor, such evidence is admissible, regardless of the extent of the accused's knowledge of such character or of the particular evidence in question. See 1 Wharton's Criminal Evidence (13 Ed. 1972) 510, Section 236, and cases cited therein.
Evidence of decedent's character to establish that he was the aggressor includes specific acts of violence previously committed and prior convictions. The state, in arguing that the *Page 244 defense cannot introduce specific prior acts of violence by the deceased to establish who the aggressor was, relies on State v.Roderick (1907), 77 Ohio St. 301; Upthegrove v. State (1882),37 Ohio St. 662; and Marts v. State (1875), 26 Ohio St. 162. These cases are distinguishable. In Roderick, supra, the evidence of specific acts of violence was not offered to establish who the aggressor was, but, as stated in paragraph two of the syllabus, was offered "* * * for the purpose of showing reasonable ground for apprehension of bodily injury or loss of * * * life * * *." Likewise, in the Upthegrove and Marts cases, supra, the Ohio Supreme Court did not consider the issue of who the aggressor was and was not concerned with an offer of evidence of specific acts of violence by the deceased.
Furthermore, proof of the prior specific acts of violence of the deceased, unknown to defendant, was competent to impeach the evidence introduced by the state in the case sub judice. Slough's widow had testified to Slough's peaceful nature. Her cross-examination by the defense, revealing specific acts of violence by Slough toward her and others, was admissible impeaching evidence. The testimony of two deputy sheriffs who testified for the defense to corroborate Slough's prior acts of violence was, likewise, proper evidence to impeach Mrs. Slough. 56 Ohio Jurisprudence 2d 784, Witnesses, Section 347.
As a result of our view that the challenged evidence concerning Slough's specific acts of violence was relevant and admissible, it was error and an act contrary to law for the trial court to declare a mistrial.2 An order of the trial judge declaring a mistrial during the course of a criminal trial, on motion of the state, is error and contrary to law, constituting a failure to exercise sound discretion, where, taking all the circumstances under consideration, there is no manifest necessity for the mistrial, no extraordinary and striking cir-circumstances and no end of public justice served by a mistrial, and where the judge has not made a scrupulous search for *Page 245 alternatives to deal with the problem. United States v. Jorn (1971), 400 U.S. 470; Downum v. United States (1963),372 U.S. 734; United States v. Perez (1824), 22 U.S. 579 (9 Wheat. 579).
The next inquiry which follows from the erroneous declaration of a mistrial concerns the trial judge's refusal to grant defendant's motion to dismiss the indictment. The trial court erred in refusing to dismiss the indictment under the factual and legal posture existing in the case when the mistrial was ordered.
Where, as in the case sub judice, the trial judge grants a mistrial over objection of defendant in the mistaken belief that evidence of specific acts of prior violence of the decedent (the victim) in a murder trial have been erroneously introduced in evidence, such order of mistrial is an abuse of discretion. Defendant's prosecution in a second trial, where the first trial was improperly terminated on the state's motion before a verdict was rendered, would violate the Double Jeopardy Clause (Fifth Amendment to the United States Constitution and Section 10, Article I, Ohio Constitution). As a result, the indictment must be dismissed on the motion of defendant. United States v.Jorn, supra (400 U.S. 470), headnote 3, at page 471; Downum v.United States, supra.
The judgment of the Court of Common Pleas of Lucas County, denying defendant's motion to dismiss, is reversed. Coming now to enter the judgment which the Court of Common Pleas should have entered, it is ordered that the indictment of the defendant be and the same hereby is dismissed and the defendant ordered discharged.
Judgment reversed.
POTTER, P. J., and CONNORS, J., concur in the judgment.
2 The rule on appeal — that if the ground for exclusion of evidence is not obvious to the trial judge and opposing counsel without stating it, such want of specificity is a waiver of the objection for appeal purposes, McCormick on Evidence (2 Ed. 1972) 113, 115 to 117, Section 52 — is confined solely to appeal of rulings on admission or exclusion of evidence, and does not apply to an erroneous final judgment granting a mistrial on the state's motion. 15A Ohio Jurisprudence 2d 438, Criminal Practice and Procedure, Section 371; cf. 53 Ohio Jurisprudence 2d 218, Trial, Section 296.