Epitomized Opinion

Published Only in Ohio Law Abstract

Licker was indicted and convicted in the Common Pleas for stealing an automobile. The automobile was owned by the complaining witness of the State, who had given a general consent to Licker to use this car at any time when he, the witness, was not using it. This permission had not been revoked up to and including the time when the occurrence took place for which Licker was indicted. There was evidence that Licker went to the garage for the purpose of getting the automobile out and directed the keeper of the garage to the telephone, by reporting that an accident had occurred, and a truck was wanted. This was not true. The only evidence of this was the statement of a policeman that Licker told him that this Was done. The garage man was not called.

Defendant’s counsel offered evidence to prove that Licker was feeble minded and addicted to the use of drugs and that he was under the influence of cocaine at the time of the occurrences above set forth. This evidence was not for the purpose of showing that Licker was not responsible for his acts, but to bear on the question .of the weight to be given to a statement of the kind made to the policeman. The evidence was excluded by the trial court.

Defendant’s .counsel attempted to have Licker’s brother testify that immediately after Licker went to jail, the brother went to see Licker and found the latter’s mind was wandering. This evidence, the trial court excluded. Licker prosecuted error. Held:

Inasmuch as the statement of Licker to the policeman was all the evidence given to disprove that Licker took the automobile, under consent of the owner, it became very important that the jury be given the evidence which would throw light upon his condition of mind when he made the statement. The excluded evidence was competent and should have been admitted, and its use limited by proper instructions to the jury. Reversed and remanded for a new trial.