State v. Hickman (77 Ohio App. 479, 1945)

Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery county, Ohio. The defendant, appellant herein, Lucille Hickman, was tried for murder in the first degree and found guilty with mercy recommended. She was sentenced by the court to the Ohio'Reformatory for Women at Marysville, Ohio, for and during the remainder of her natural life.

The defendant contends that the trial court erred in overruling her motion for a dismissal at the close of the state’s case; that the verdict of the jury is against the manifest weight of the evidence; and that the verdict of the jury is contrary to law. These assignments of error raise the question as to’ the sufficiency of the proof.

A brief statement of the facts will suffice.

We do not believe it is necessary to review all the sordid details leading up to the night of the murder. We have read the record and find that the defendant testified that her husband abused her daughter who lived with them and who was eight years old at the time of the murder. Regardless of how abusive her husband was toward her daughter, such abuse does not furnish sufficient legal justification for killing her husband. Furthermore, regardless of the number of threats which her husband may have made to kill both her and her daughter, such threats alone do not furnish a sufficient legal justification for the killing.

The record in this case shows that the defendant married Paris Cloud in 1933, to which union two children were born, a son, Hooper Clond, and a daughter, Vera Jean Cloud. Later she obtained a divorce and ■ was given the custody of her • daughter, Yera Jean. Sometime after the granting of the divorce, she met George Hickman in the state of Tennessee. George Hickman came to Dayton and secured employment, after which he returned to Tennessee and brought Lucille Hickman, together with her daughter, Yera Jean, to Dayton, where they were married on March 25, 1939. They lived in rooming houses on Fourth street, Proctor, Washington, Robert Boulevard, Bainbridge, McDonough, Chestnut and other places in and around Dayton, Ohio. She testified that in the fall of 1943, after her husband told her that he had already spent too much money on her, and that she was nothing but a cripple, she separated L;oni him and moved to Knoxville, Tennessee, taking her daughter, Yera Jean, with her. Several months later her husband communicated with her, which resulted in her husband going to Knoxville and bringing his wife and step-daughter back to Dayton, which occurred in January of 1944. The defendant testified that during the trip to Knoxville her daughter told her that she had been abused by her step-father; that in December 1944, they visited a friend on Bainbridge street, and at the solicitation of the friend, stayed all night; that she, her husband and her daughter that night slept in one bed; that she was awakened during the night by a conversation taking place between her husband and her daughter, from which she judged that her husband had molested her daughter; that she jumped from the bed and turned on the light; that from that time on her husband, realizing that she knew of his abuse of her daughter, made numerous inquiries as to whether she had made a complaint to the police; and that he often made threats to kill both of them rather than face the charge which might result in confinement in the penitentiary.

The record further shows that in September 1944, after she filed a suit for divorce against her husband, he told her that he had bought a gun, and that it was ■a present for her and that if she went ahead and got the divorce, it wouldn’t do her any good. She dismissed the divorce case and returned to her husband. A short time after this occurred, they went to live on Chestnut street, where the killing took place.

Defendant claims that at one time her husband showed the gun to her, and there is also testimony in the record to the effect that her husband, who worked at the Frigidaire plant, had exhibited a gun to a fellow workman in the month of December 1944. One Effie Bramsway, who lived on Bainbridge street, and a friend of the Hickmans, testified that George Hickman had sold the gun to Mr. Hughes who lived in the same residence as the witness. There is nothing in the record to show that the defendant had any knowledge of the gun being sold.

On Tuesday night, February 20, 1945, after they had gone to bed, Hickman asked the defendant whether she had been any place that day. She told him that she had not been away. Whereupon he told her that “he had to do something and that the only thing he knew, was to kill” Yera Jean and the defendant “because he had no intention of waiting until the law got him.” Defendant testified that she told her husband he might kill her, but to leave her baby alone. To this statement he replied: “I can’t do that and you know that.” When she asked him why, he said: ‘ ‘ She knowed more about it than I did,” and that he was going to do it as he had no other choice. The next day she went to police headquarters and complained to Sergeant McElhaney about her husband’s threat to kill both her and her daughter. She inquired how long’ her husband could be restrained, if a complaint should be filed. The of fieer informed her that he conld be released on bond almost immediately. She left police headquarters without filing a complaint. On her way home, she walked down Jefferson street and passed a pawn shop. She stopped at the window and looked at the guns. She did not enter, but walked by the shop, after which she turned back and went into the pawn shop, at which time the clerk showed her a gun. She did not make the purchase at that time.