State v. Vargo ( 1926 )

George Vargo was convicted of murder in the first degree in the Lake Common Pleas. The case was reversed by the Court of Appeals on the ground that the lower court erred in its charge to the jury in respect to what was said about the defense of anger.

It is claimed that the court charged — “if you find from the evidence, and a preponderance of the evidence, that by reason of his intoxication and anger he was in such condition as to be incapable of forming any intention-to take the life of the deceased, then he could not be found guilty - - - but would be guilty of manslaughter only.”

On leave to file a petition in error to the Supreme Court, it is claimed that the charge complained of was favorable to defendant and against the State for the reason that it injected into the case a defense that was not made on the evidence. It is claimed that the evidence does not disclose anger at the time of the killing or any great anger at any time.

It is contended that no objection was made by defendant at the time to this part of the court’s charge nor was the Court asked to enlarge upon it, or to separate anger and intoxication or to again charge that the burden of proof at all times was upon the State to prove the material allegations of the indictment, nor did defendant take special exception to this part of the charge.

It is claimed that no evidence of intoxication on part of defendant appears from the State’s evidence, that intoxication is an affirmative defense with the burden on the defendant, and that when defendant, by his request, combined anger and intoxication, he took the position that both were upon the same basis. It is further claimed that anger is no defense to crime, and does not operate to reduce the degree unless the anger is great and unless such anger is aroused by provocation adequate under the law. No such provocation is shown, it is urged.