Reighard v. Ohio.

jury and I was not with the jury when the premises or places were viewed by them on East Broadway and Camden street.'

The defendant does not make oath in his affidavit that he desired to accompany the jury or had any wish to go with them. According to his affidavit the jury were taken away from the court room before he was taken away to the county jail. He simply makes complaint that nothing was said to him about his accompanying the jury; nor does he suggest in his affidavit that he was not advised of his right to accompany the jury, it he had such a right.

Upon the return of the jury to the court room the next day, as I have read from the record, the court asked Mr. Wilkinson, counsel for defendant, in the presence of the prisoner, if the view was satisfactory to him, and he replied that it was and no objection was then made, either by counsel for defendant or by defendant himself.

In our judgment, where the defendant is represented by counsel, as he is at this day and age, and entitled to be represented by counsel appointed by the court if he has no means with which to employ counsel, when his counsel is present and he is present in court, if he asks the court for such an order as this to be made and the whole matter is talked over before him in open court, and defendant himself taking part in that talk and aiding in giving directions as to the places that the jury are to visit, when the jury is taken from the court room in pursuance of such an order, by the sheriff, in his presence, without any objection upon his part, or any request or intimation that he desires to accompany them, either from himself or through his counsel and when he is then taken back to the county jail, without any suggestion on his part, and when the view is had without anything improper having occurred, and the defendant, upon the return of the jury, through his counsel, in open court and in the actual presence of the defendant, expresses himself as satisfied with the view that has been had and makes no complaint or objection during the trial of the case until after a verdict is returned against him in such a case in our judgment he should be held, and is held by us, to have waived his right to accompany the jury upon such view, if in fact he had a strict legal right to do so.

The defendant, in a criminal case, may waive some of his rights and privileges the same as he may in a civil case, and we find no error in the proceedings in the trial on this account or in the action of the court below in overruling the motion for a new trial so far as this ground is concerned.

Now, briefly as to the second ground of alleged error. It is claimed that the court erred in its charge to the jury, in not giving a sufficient definition of the crime of manslaughter, and erred in refusing a request to give a definition of manslaughter after the argument and before the general charge, and this same request included instructions on the question of reasonable doubt.

It appears from the record that before the argument to the jury the court gave several instructions, at the request of the defendant below, which were upon the question of reasonable doubt and upon the question of insanity, and a definition in the language of the statute, defining the crime of murder in the first degree, in the second degree, and manslaughter, and read to the jury the sections of the statutes. After argument, counsel for defendant asked the court to give this instruction:

"Manslaughter is defined to be the unlawful killing of another without malice, either express or implied, which may be either voluntary

Lucas Circuit Court.

upon a sudden heat or inadvertently, but in the commission of some unlawful act."

Then follows, as a part of the same request, an instruction upon the question of reasonable doubt. This request was made after argument and just before the court charged the jury. The court charged fully in its general charge, upon the question of reasonable doubt and no complaint is made as to that. But, it is urged that the court should have given this definition of manslaughter. It is a definition substantially, and I think probably exactly, as laid down by Blackstone, and is a correct legal definition of manslaughter. As requested of the court, it was an abstract proposition of law without any reference to the facts of the case on trial, without any limitation, without any explanation, or without any qualification so far as the facts of the particular case were concerned, but was a pure, abstract proposition of law, a legal definition of manslaughter.

The court had already defined manslaughter to the jury at the request of defendant, in the language of our statute, as it is at this time, and refused this request. In the general charge the court again defined manslaughter in the language of the statute and then followed that with a further description of the crime of murder in the first degree and murder in the second degree, and said further, after defining murder in the second degree, "while manslaughter is the unlawful killing of a person and need not include the intention, if the killing were unlawful."

This proposition of law, or definition, as requested to be given to the jury, without any explanation or qualification, might have been misleading to the jury. Nothing being said about the facts of the particular case, the court was asked to say to the jury simply: "Manslaughter is defined to be the unlawful killing of another, without malice either express or implied, which may be either voluntary or upon a sudden heat or inadvertently but in the commission of some unlawtul act." Nothing is said about the passion which will reduce the homicide from murder to manslaughter, except the bare words "upon a sudden heat;"' there was no explanation to the jury that there must be some reasonable provocation or cause for such heat, to reduce the crime to manslaughter. The jury might have understood from that that anger alone, sudden heat, was sufficient, whatever the cause of the provocation, to reduce the crime to the degree of manslaughter.

The defendant testified, according to the record, that he had some trouble with his wife at the time of the killing, that she said something to him and struck him with her shoe; but he does not claim in his testimony that he was thereby enraged, or that by that conduct of hers and that language, he was thrown into a "sudden heat;" the defense in the case was insanity and the evidence was directed towards that defense, and the instructions to the iury were directed toward that defense-the instructions requested by the defendant before argument and the instructions given by the court in its general charge.

The whole gist of the defense, practically, was, that at the time of the commission of the offense the defendant was insane. He claimed that this woman, who at the time he married her was about eighteen years old, was guilty of misconduct and improper conduct after her marriage to him and that it occasioned a great deal of trouble and mental anxiety on his part and finally they had this meeting upon this day when she was killed and he made a certain request of her and she struck him with her shoe and charged him with desiring to act improperly with the little

Reighard v. Ohio.

girl, and he says that from the time she said that and struck him with her shoe, he knew nothing and could remember nothing until some time afterward, and when he regained his reason he found that he had shot and killed his wife. His claim is not that he was enraged or thrown into a passion or "sudden heat" by what occurred upon that occasion, but that his reason was overthrown; his mind, he says, became a blank and he recollects nothing and knows nothing that occurred after that time. He claims that he knew nothing of the shooting or of the transaction and does not undertake to tell it, and when he regained his senses he claims to have found himself partially paralyzed.

The evidence is clear in the case that he shot and killed his wite. Now, in our judgment, it cannot be held that the defendant below was prejudiced by the refusal of the court to give this request to the jury. The court had defined manslaughter in the language of the statute, at the request of defendant; he defined it again in his general charge, after this request. There is no evidence whatever in the record that the defendant killed his wife at that time on account of passion or sudden heat; and I mean by that that he does not testify or claim, nor is there any evidence that he was in such a condition as that, or that her conduct caused any such condition at the time he shot her; his defense, and the defense that he asked the jury to adopt, and upon which he asked the jury to acquit him, was that at the time he killed his wife he was insane and therefore, irresponsible; what he asked the jury to believe was that her conduct was such on that occasion as that it deprived him of his reason, temporarily. Having tried the case upon that theory and asked the jury for an acquittal upon that ground and that alone, we do not think he can complain that the jury did not adopt some other view which neither he himself nor his counsel claimed, to-wit: that at the time he killed his wite, he was in such a passion that it should have reduced the crime to manslaughter.

In view of the theory upon which the case was tried, the theory of the defense, and the instructions which were given upon the different grades of homicide, and in view of the fact that this request, standing alone unqualified and unexplained, might have been and probably would have been misleading to the jury, we are of the opinion that there was no error prejudicial to defendant in the refusal of this request. And we are further of the opinion that there was no prejudicial error in the court failing to define manslaughter any further than he did in the general charge, no further instruction being asked by the delerdant alter the general charge was finished.

It is complained further, that there was misconduct of the jury during the trial, at the view and after their return. It appears from afhdavits, that while the jury were viewing the premises, one of them asked some questions of a woman in regard to the premises, but it does not appear that any answer was made or that anything was done upon the view, or said that could in any way prejudice the defendant.

The jury retired along in the afternoon and were instructed by the court that they would be provided with a place to sleep, and the sherif was ordered to furnish them with nccessary food; and it is complained that the sheriff and jury were guilty of misconduct during the night in this, that about eleven o'clock at night they were furnished with a lunch by the sheriff; the sheriff asked the jury if they wished a lunch, and, according to the affidavit, some of them responded that they did.

Lucas Circuit Court.

He furnished them with coffee and some doughnuts, I think it was, and this lunch was eaten there.

We are unable to see any misconduct on the part of the sheriff in this respect. He had been ordered by the court to furnish the jury with food, which was a proper order, and usual and ordinary in all such cases. In order to furnish the jury with food it might be necessary for the sheriff to speak to the jury and ask them what they would like, whether they would like this, or that, to eat, and a conversation of that kind, necessary in furnishing them with food and drink during their deliberations, there being nothing said about the trial of the case or anything that could be construed as prejudicial to the defendant, would not be improper conduct.

And we are unable to see anything improper in the sheriff asking the jury, after they had been deliberating upon the case until nearly midnight, whether they desired anything to eat or not before they went to sleep. The jury were taken to the jail, where there were some beds, to sleep that night and were not left in the jury room, and at the time of the lunch they were at the jail and about to go to bed. The sheriff did not force his attention upon the jury; he did not go to the jury-room and ask them if they wanted anything to eat, but this was done upon taking them over to the jail to put them to bed, as he had been ordered. to do by the court. He asked them if they desired anything to eat, they responded that they did, and he gave them a simple lunch. There was nothing improper in this, so far as we can observe, or that could in any way prejudice the rights of defendant.

Upon a review of the whole record, we are of the opinion that the defendant's rights were fully protected and guarded by the court at every stage of the trial; that he was well defended, and that the jury were fully warranted under the evidence in the case, in finding him guilty of murder in the second degree as they did; and, as was suggested by the court below in overruling the motion for a new trial, if he had been found guilty of murder in the first degree, it would have been difficult to see how a court could set aside such a verdict. Being of the opinion that he had a fair trial, that there were no errors committed by the court and that he was justly convicted, the judgment of the court of common pleas will be affirmed.

WILLS.

[Hamilton (1st) Circuit Court, January Term, 1901.]
Swing, Giffen and Jelke, JJ.

THOMPSON, ADм'x, v. O'Dell et al.

1. MEANING OF WORDS-Rule oF CONSTRUCTION.

If any term is used by a testator which has a primary or ordinary legal meaning, such as "legal representatives, " being that of "executors or adminis trators," that is the sense in which it must invariably be construed, unless the court is reasonably satisfied, by evidence collected from the will itself, of the testator's intention to use it in a different sense.

2. USE OF WORDS IN ORDINARY SENSE-EVIDence.

If the gift is to take effect after a life estate, the will does not afford evidence of the testator's intention to use the term otherwise then in its ordinary

sense.

Thompson v. O'Dell.

3. USE OF DISJUNCTIVE-WORDS FOLLOWING.

The fact that the disjunctive "or" is used in gifts of personalty in a will devising to certain persons or their legal representatives, does not make the words following words of substitution, and, therefore, synonymous with "next of kin," for the same construction applies to gifts of personalty as to devises of realty.

DIRECTION To Pay or Divide at Future PERIOD.

A bequest in the form of a direction to pay or to pay and divide at a future period, vests immediately if the payment be postponed for the convenience of the estate or to let in some other interest as, for instance, a life estate to the widow of testator.

5. MEANING OF "Legal RePRESENTATIVES" APPLIED.

The primary or ordinary legal meaning of the words "or legal representatives is that of "executors or administrators," as words of limitation, and legacies under a will devising a life estate to the widow of testator and directing that all testator's property be sold and the proceeds divided equally among certain persons "or their legal representatives," vest at the death of the testator, and not on the termination of the life estate.

JELKE, J.

Christian B. O'Dell died in March, 1889, leaving a will dated February 19, 1883. This is an action to construe that will. Answers to all the queries propounded in the petition depend upon and flow from the construction put upon item third of said will. Items two and three are as follows:

Second. I give and bequeath to my wife Susan O'Dell all my property, both real and personal, to have and to hold the same for her use and benefit during her natural life or so long as she remains my widow.

"Third. At the death of my wife Susan O'Dell, for whom I desire a decent and respectful burial and tombstone or monument placed at her grave such as hereinafter provided for myself to be paid for out of my property or the proceeds arising from said property. I desire all my property both personal and real to be sold and the proceeds arising therefrom equally divided among the following persons or their legal representatives, being eleven divisions, as follows:

"Heirs of Issac B. O'Dell or their legal representatives, Widows H. O'Dell or his legal representatives, John M. O'Dell or his legal representatives, heirs of Jacob N. O'Dell, deceased. or their legal representatives, Elizabeth Alloways or her legal representatives, Melinda Surface or her legal representatives, Thomas Jeffrey or his legal representatives, Christian B. Cleinherm and Christian B. Humbert or their representatives."

The cardinal question is, when do the legacies given to the eleven legatees "or their legal representatives" vest; at the death of the testator or on the termination of the life estate at the death of Susan O'Dell?

The answer to this question depends upon the meaning given to the words or legal representatives." If these words are given their primary and ordinary legal meaning of "executors or administrators" as words of limitation, then these legacies vested at the death of the testator. On the other hand it these words are given their secondary meaning of "next of kin " as words of substitution, then these legacies did not vest until the death of Susan O'Dell which terminated the life estate.