author: BARTLEY, C. J. J. R. Swan, J.,

text:
    Edward Robbins v. The State of Ohio.
    A party, indicted for murder in the first degree, cannot exercise the right, under the present constitution, to ele.St - to be tried in the district court, which he had under the former constitution of the state to elect to be tried in the supreme court of the county.
    The rule that a judgment on a general verdict of guilty on an indictment containing several counts, some of which are good and some bad, will be sustained, is not varied by the circumstance that a demurrer of the defendant to the bad counts was overruled, after which the defendant pleaded not guilty to the whole indictment, it not appearing from the record that the defendant was prejudiced by the introduction of evidence under the bad counts, which was not competent under the good counts.
    Evidence of dying declarations are not excluded by the constitutional provision ■ that the accused shall be allowed to meet the witnesses face to face — the objection to such evidence going to the competency of the evidence, and not to the competency of the witness.

    It is essential to the admissibility of dying declarations as evidence, that it should be made to appear to the court by preliminary evidence, not only that they were made in articulo mortis, but also made under a sense of impending death, which excluded from the mind of the dying person all hope or expectation of recovery.
    In all jury trials, it is the peculiar province of the jury to determine the questions of fact, and that of the court to determine the questions of law presented, and in the trial of a criminal cause, it is the duty of the jnry to receive the law as determined by the court, and no juror can rightfully disregard the law as declared in the instructions of the court to the jury. ¶
    The overt act of homicide by administering poison, within the meaning of the ■ law, consists not simply in prescribing or furnishing the poison, but also in directing and causing it to be taken, so that if the poison be prescribed and furnished in one county to a person who carried it into another county, and there, under the directions given, takes it and becomes poisoned, and dies of the poison, the administering is consummated, and the crime committed, if/ committed at all, in the county w'here the person is poisoned.
    Where a drug is administered to a woman pregnant with a quick child, with intent not to kill the woman, but to produce abortion, and the woman dies from the effects of the drug, the offense cannot constitute murder in the first degree under the criminal statute of this state.
    In case of homicide by administering poison, or causing the same to be done, the accused cannot be convicted of murder in the first degree, where there was no purpose or intent to kill the person poisoned, inasmuch as the statute of this state has made purpose or intent to hill an essential element of that degree of homicide for which the punishment of death is inflicted.
    Murder at common law has been superseded by our statutory provisions in relation to homicide; and although in homicide committed in administering poison, or in perpetrating, or attempting to perpetrate, either of the felonies mentioned in the statute, the turpitude of the felonious act is made to supply the place of the deliberate and, premeditated malice requisite in the first class of murder defined, yet the purpose to kill, expressed in the statute, applies to each of the several classes of murder in the first degree; and this results not only from a fair grammatical construction of the language of the first section of the statute, but also from its reasonableness and consistency ■with the humane spirit of our laws, as well as the context of the first section with the provisions of the second, third, and thirty-seventh sections of the statute.
    The provision in the second section of the “ act to provide for the punishment of certain crimeB therein named,” passed February 27,1834, providing for the punishment of the offense of killing a woman pregnant of a quick child, by unlawfully administering to her medicine, or using some instrument or other means, with intent thereby to destroy such child, was not repealed by the operation of the “ act providing for the punishment of crimes,” passed March 7,1835.
    The statute having required that, “ in all trials for murder,” the jury shall, if they find the defendant guilty, ascertain from the evidence before them, the degree of the homicide, it is error for the court to instruct the jury on the trial of an indictment for murder in the first degree by means of poison, that in this kind of a case murder is not of different degrees, and that, therefore, if they find the defendant guilty as he stands charged in the indictment, they must return a verdict for murder in the first degree.
    "Writ of error to reverse tb.e judgment of the Common Pleas of Marion county.
    The plaintiff in error was indicted at the November term, 1857, of the common pleas, for the murder of Nancy Holly, by administering poison. The first and seventh counts of the indictment, being the counts relied on to sustain the judgment, are as follows, (omitting a part of the superfluous language used,) to wit:
    “ The State of Ohio, Marion county, ss.

      “ The court of common pleas within and for the county of Marion, and State of Ohio, of the term of November, in the year of our Lord one thousand eight hundred and fifty-seven.
    “ The jurors of the grand jury of the State of Ohio, within and for the body of the said county of Marion, in the name and by the authority of the State of Ohio, on their oaths and affirmations, do present and find that one Edward Robbins, late of the county of Marion aforesaid, contriving and intending one Nancy Holly with poison, unlawfully, willfully, purposely, and of deliberate and premeditated malice, to kill and murder, on the twenty-ninth day of July, in the year of our Lord one thousand eight hundred and fifty-seven, with force and arms, in the county aforesaid, feloniously, unlawfully, willfully, purposely, and of deliberate and premeditated malice, a large quantity of a certain deadly poison, called strychnine, to wit, four grains thereof, did administer unto the said Nancy Holly, with the intent then and there, that she should take and swallow down the same into the body of her the said Nancy Holly, (he, the said Edward Bobbins, then and there well knowing the said strychnine to be a deadly poison,) and the said strychnine so administered unto her, the said Nancy Holly, by the said Edward Bobbins, the said Nancy Holly did then and there, at the instance and solicitation of him, the said Edward Bobbins, take and swallow, the said Nancy Holly then and there not knowing the said strychnine so administered to be a deadly poison; by reason and by means of which said taking and swallowing of the said strychnine as aforesaid, the said Nancy Holly then and there became and was mortally sick and distempered in her body, of which said mortal sickness and distemper the said Nancy Holly, on said twenty-ninth day of July, in the year of our Lord one thousand eight hundred and fifty-seven, in the county of Marion aforesaid, died; and so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said Edward Bobbins, her, the said Nancy Holly, in manner and form aforesaid, unlawfully, willfully, feloniously, purposely, and of deliberate and premeditated malice, did then and there kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio. And the jurors aforesaid, at the term aforesaid, upon their oaths and affirmations aforesaid, in the name and by the authority aforesaid, do further present and find that the said Edward Bobbins, on the said twenty-ninth day of July, in the year of our Lord one thousand eight hundred and fifty-seven, in the county of Marion aforesaid, unlawfully, willfully, purposely, and of deliberate and premeditated malice, did administer to one Nancy Holly a large quantity of a certain deadly poison, called strychnine, to wit: four grains of the said strychnine, with intent then and there, and thereby unlawfully, willfully, purposely, and of deliberate and premeditated malice, the said Nancy Holly to kill and murder, (he, the said Edward Bobbins, then and there well knowing- the said strychnine to be a deadly poison,) and the said strychnine so administered unto her the said Nancy Holly, by the said Edward Bobbins, the said Nancy Holly did then and there take and swallow, the said Nancy Holly then and there not knowing the said strychnine so administered to be a deadly poison; by reason and by means of which said taking and swallowing of the said strychnine as aforesaid, the said Nancy Holly then and there became and was mortally sick and distempered in her body, of which said mortal sickness and distemper the said Nancy Holly, on said twenty-ninth day of July in the year of our Lord one thousand eight hundred and fifty-seven, in the county of Marion aforesaid, died; and so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say, that the said Edward Bobbins, her, the said Nancy Holly, in manner and form aforesaid, and by the means aforesaid, unlawfully, willfully, purposely, and of deliberate and premeditated malice, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
    “ JAMES H. ANDEBSON, Prosecuting Attorney. ’

      At the same term of the court, the plaintiff in error being arraigned, was informed, before being required to plead, that he was at liberty to declare whether he would elect to be tried in the district court or in the court of common pleas, whereupon he declared that he elected to be tried in the latter court. And upon being called upon for his plea, he pleaded not guilty to the indictment; and the cause was continued until the next term of the court.
    At the March term of the court, 1858, the plaintiff' in error appeared with his counsel, and, by leave of the court, withdrew his plea of not guilty to the indictment; whereupon the prosecuting attorney entered a nolle prosequi on the fifth count of the indictment. And the plaintiff in error being arraigned upon the indictment, as it then stood, moved the court to allow him to elect to be tried in the district court, which motion was overruled. He then demurred to the second, third, fourth and sixth counts of the indictment; and the court, upon hearing and consideration, overruled the demurrer. And the plaintiff in error, being again arraigned and called upon for his plea, pleaded not guilty.
    And the plaintiff in error having been put upon his trial, a jury duly impanneled, after hearing the evidence and charge of the court, returned a verdict finding the plaintiff in error guilty of murder in the first degree, in manner and form as he stands charged in all the counts of the indictment. A motion was made for a new trial, assigning ■the following grounds, to wit:
    1. Because the verdict was against the weight of the evidence; and for the state when it should have been for plaintiff in error.
    2. Because the court erred in admitting in evidence to the jury the declarations of Nancy Holly.
    3. Because the court erred in charging the jury that it was not necessary to the conviction of the plaintiff in error of the crime of murder in the first degree, that the jury should find that he intended to take the life of Nancy Holly.
    4. Because the court ei’red in charging the jury that they must either acquit the prisoner altogether or find him guilty of murder in the first degree.
    5. The court erred in charging the jury that it is the exclusive province of the court to determine what the law is, and the jury have no right to hold the law to be otherwise in any. particular than as given to them by the court.
    The court overruled the motion for a new trial, and sentenced the prisoner to the penalty of the law for murder in the first degree. "Whereupon the following bill of exceptions was duly presented and signed, to wit:
    “ Be it remembered, that on the trial of this cause, before a jury, in the court of common pleas, for the county of Marion, the state, to maintain the issue on her part, in-introduced sundry witnesses, among whom were George W. Holly (brother to the deceased), Jerusha Holly (her mother), Eunice L. Holly (sister), Philip H. Hardesty (uncle to wife of defendant), and others, residents of Shelby county, Ohio, whose testimony tended to show that the deceased, Nancy Holly, was an unmarried woman, twenty-three years of age, the mother of a female child five years of age, by the name of Matilda Stoner; had never been married, and for a number of years had lived in Shelby county; that between two and three years before her death, she had gone to reside in the family of the defendant, a married man, with a wife and two children, and resident of Shelby county, in the capacity of family servant; that the defendant and said Nancy became criminally intimate, and, as a consequence, pregnancy had several times ensued, to remove and conceal which, the defendant had employed medicines for the purpose of producing abortion upon said Nancy; and, as he claimed in conversations with said Philip H. Hardesty, with success, and kept a medicine in his possession with that view; that said Nancy, about the. 29th of July, 1857, was advanced in pregnancy by the defendant about six months; that about one week or a little longer before that time, the defendant had given her medicine of some description, after which she continued to be sick for some hours, during which she was attended by the defendant; that six days before the 27th of July, 1857, the defendant requested P. H. Hardesty to loan him money, telling him that he was going to send her off, and wanted some money to send her to Cleveland; that the thing had got so far along that he was going to send her off; that about two weeks before the 27th, defendant had told Charles ~W. Boyer, when intoxicated, that in two weeks Nancy Holly was to be married; that on the 26th July, Nancy Holly left Robbins’s house with a traveling satchel or carpet-sack, containing certain garments for herself and child, which satchel and clothes had been furnished her by the defendant; came to her father’s house; remained there until the morning of the 27th of July, when she left with her child, satchel, etc., (being accompanied by her mother as far as Laramie Station, on B. & la. Railroad, two and a half miles distant from her father’s), informing her family that she was going to some friends at Lima; was met on the way to the railroad station by defendant, and assisted over Laramie Creek, who then inquired why she had not started the evening before, and gone as far as a certain house near the station, and requested her, when' she reached her destination, to write to him; that she then took the cars at Laramie Station and went east.

      “ And the state, further to maintain the issue on her part, introduced as a witness Ferdinand C. Ruhermund, whose testimony tended to prove said Nancy Holly died at his house, in Marion, Marion county, Ohio, about one quarter before 11 o’clock P. M., on the 29th day of July, 1857, having applied to him, a stranger, accompanied by a little girl about five years old, on the day preceding (the 28th) to obtain work in his family as a servant, representing herself as a widow lady of the name of Nancy Emmerson, whose husband had died about five months before, at Union, on the state line, from which place she had started to go to Cleveland, where she had an aunt, living, but her money not proving sufficient, she had been compelled to stop at Marion; that through these representations she obtained access to his house, where she remained, engaged in the labors of a servant, until her death; that about 10 o’clock at night, on the 29th, having been sent for at his place of business, and informed that the strange woman had been suddenly taken very sick, witness hurried home; heard said woman scream before he got to his house; ran up stairs to where she was in bed; found there Mrs. Brown and Mrs. Tharp present, and said Nancy screaming and making a great noise; witness told her not to make so much noise.
    “ At this point, the witness being about to proceed to give the answer of said Nancy, counsel for the defendant objected to her statements being given in evidence. The witness was then asked by counsel for the state, and permitted by the court, to proceed to give evidence to the court (for the purpose of laying the foundation for the admission of dying declarations), and testified to the court as follows:
    “ The woman died quarter of an hour before 11 o’clock that night, about three-quarters of an hour after I came to the house. I found her lying on her back, with her arms stretched out and shaking, twitching, convulsed — in convulsions. I ran back to procure a physician; met A. D. Matthews; told him I was going for a physician; he volunteered to go, and asked who I wanted; told him to go for Dr. Christian; he started, and I returned to my house ;, she, Nancy Holly, asked for water, and asked me to hold her; she suffered very severely; she had spasms very strong; I could not say positively if they continued all the while, but they were more severe sometimes than others; I judged so because I held her wrists with my hands, and in her spasms she raised my weight entirely off the floor, as I was hearing down on her wrists; the women at the same time had hold of her feet; she seemed to he convulsed all the time more or less with spasms until she died. From the answers she made to questions, I should judge she was pei’fectly rational all the time; she seemed to be aware that she was dying. The last reply she made to a question was just before she died; she did not talk all the time; she had nothing to say unless she was asked; she did say something about her child without being asked; I think she said at that time, while she was in- spasms, that she was pregnant; she said, Oh Lord! send for a doctor! I must die. This was her phraseology as near as I can recollect it; this was some time after I had been in the room. A physician did not come before she died; I went out once, and near my house met two young men; requested them to go for Dr. Sweeny; they started; I immediately ran back to her room; she was then dying; had the death rattle in her throat; I felt of her pulse, and could perceive none; I felt of her temples, and could feel none; she said, ‘send’ or ‘write,’ (I am not positive which word,) ‘ to Laramie Station, and the folks will come for my dear child; ’ she made this remark before I left the room to go for Dr. Sweeny; I asked her who gave her that medicine, (which being objected to by defendant’s counsel, was not allowed to be answered.) I said, I hope you will not repay our kindness by bringing trouble on us; there will probably be a judicial investigation into this matter, and it is very essential that it should be known who gave her that medicine.

      “ Counsel for the state then asked the witness, when she said write or send to Laramie Station, to whom did she say send or write to ? To which defendant, by his counsel, objected ; but the court overruled the objection, and the witness answered: She replied, ‘ Hollys.’ I am certain I heard her exclaim, ‘ Oh Lord, I must die! ’ I was examined before the justice; do not remember that Mr. Bunker wrote down my testimony and read it over to me. This exclamation was before she spoke of her child; it was after I first started for a physician; when I got into the room, I think I probably did tell her she must not scream, as she would get better, that I had sent for a physician; that, I think, was when I first got into the room. I requested her not to scream so, and she said she could not help it. At that time I did not think she would die, but afterwards I did think so; I did not so tell her in direct words that I thought she was about to expire; I thought she was sinking after I was holding her wrists; it was not just before I stepped out of the room the second time that I thought she was dying, it was a considerable time before; the ladies in the room said she was dying; I did not notice her eye particularly; her face kept remarkably natural; the ladies in the room who said Nancy was dying, spoke so loud I heard them, and Nancy could hear. When I told her she ought not to repay our kindness by getting us into trouble, and that there would probably be a judicial investigation, and that, therefore, she ought to tell who gave her the medicine, she then did make disclosures. In reply to my l’emark, she did give a name, and that is what I call disclosures. I stood at her head while the ladies at her feet made the remark that she is dying; it might be that she suffered pain so that she might not observe, unless addressed to her; she certainly was in great pain; she answered promptly all questions except one — when asked for a name. I cannot now say if her eyes were open or shut during the three-quarters of an hour I was there; there was a light in the room; I could see her face distinctly ; she seemed to start when I first approached her, as though afraid of me; can’t say if her hands were cramped; there was a good deal of motion there. I can’t say if she was lively or stupefied; I would think she was lively and not stupefied, as she answered questions promptly ; I put my hand on her forehead, and it felt moist; when I approached her, she started; she gave the name of persons to be written to at Laramie; I did not come to that conclusion since I heard these names; I wrote them down at the time, on an envelope I had in my pocket. I can think of other symptoms; she asked for water, and when brought, her teeth were clenched; I could not succeed in getting water down her throat; she requested me to give her water, and I put my arm under her head to raise her to give it to her, and she screamed out that she could not be raised; she gave no reason; this was the first time I offered to give her water.
    “ The state, then, for the same purpose of laying a foundation for the introduction of the dying declarations of the said Nancy Holly, called another witness, viz, John 8. Cassells, who testified to the court that he resided in Cleveland; was a physician and professor of chemistry in Cleveland medical college; had been a physician since 1834, and twenty-two years teacher of chemistry and materia medica; that strychnine, taken in poisonous doses, acts wholly on the spinal chord, after being taken into the circulation, and does not affect or act upon the brain; it expends its power upon the spinal chord. A person may-die of strychnine and not have the mind impaired at all; they never do; the symptoms of death by strychnine are first a sensation of heat and thirst in the stomach, then a pulling back of the head; then general tetanic convulsions, twitchings. These twitchings are sudden jerks, bending of the column of the spine, rounding of the chest, difficulty of breathing, sense of suffocation, setting of the teeth from closing of the mouth and muscles of the throat or tetanus, the whole' surface of the body sensitive to touching or moving of bed clothes, or sounds; the surface of the body generally moist, and the mind clear; the fingers bent in; the toes bent in; the hollow of the foot concave, and muscles bent; these continue until death; then the body is rigidly stiff, until decomposition; these tetanic convulsions involve all the voluntary muscles under the control of the will. I should think from the extreme violence of strychnine on the system, common people would think death would ensue. It is difficult to say whether persons dying of strychnine would be more conscious of approaching death than if dying from other causes, there being no previous diseased action; they might think they could come out of the convulsions. There is other diseased action resembling strychnine in its results. Children have spasms from eating indigestible substances, and women have hysteria, which common people might mistake for strychnine convulsions. These statements are predicated on the idea that the patients know they have taken strychnine; but it would be the same if they knew they had taken any drug, and experience the same symptoms, provided the mind was not impaired. I should think that the symptoms experienced from strychnine poisoning from the very first attack, suggests the idea of approaching death from the severity of the symptoms, especially the sense of suffocation.
    “ On cross-examination, the witness said: I heard the testimony of Ruhermund; he did not speak of suffocation as a symptom; strychnine could not exist as a poison in the system without the sense of suffocation. I should think the patient would be very apt to allude to the sense of suffocation, and it would be very obvious to the observer; the shutting of the teeth, and the contraction of the muscles about the throat, described by Ruhermund, could not very easily take place without involving the large muscles of the chest, which would give the sense of suffocation. With regard to the eye, so far as my experience and the books are concerned, strychnine is not uniform. Sometimes the eyes are enlarged; sometimes not involved at all. There is probably not a great deal of pain in the chest, but there is great distress there, just as though a person was pressing. There is not acute pain any where further than that experienced by cramping; it is a disagreeable sensation, not acute pain, and this extends to all the voluntary muscles. In the absence of this sense of suffocation, a person would not apprehend death any more than in hysteria or other disease producing similar symptoms. I have known cases of hysteria where the sense of suffocation existed.
    “ The said Eerdinand C. Ruhermund, being recalled by the state to give testimony to the court for the purpose aforesaid, stated that the said Nancy Holly asked, for air. At one time she said, won’t you give me some air ? or, let me have air. The window was open right at the head of the bed, and the door of the room was open; it was a warm night in July; the air from the door to the window would pass alongside of the bed; they are opposite; the bed in the center, with a high head-board, preventing the air passing over the bed. It was warm; all of us in the room experienced oppression.
    “ The state then closed the evidence offered to the court, for the purpose aforesaid, and, claiming it to have laid a sufficient foundation, offered to recall said Eerdinand C. Ruhermund, to give in evidence to the jury the declarations of the said Nancy Holly, made on her death-bed at his house, at the time before stated,- to which the counsel for the defendant objected; but the court overruled the objection, and permitted the statements of said Nancy Holly, made as aforesaid in regard to the cause of her death, to he given in evidence to the jury; to which ruling of the court the defendant, by his counsel, excepted, and now prays that this, his bill of exceptions, may be signed and sealed by the court; and the same is done accordingly. The said Eerdinand C. Ruhermund then proceeded with his testimony, at the point where he had been interrupted by the objection of counsel for the defendant, as follows :
    “ She (Nancy Holly) requested me to give her some water, and I attempted to do so, but she could not swallow. Soon after this, my wife came up, and Nancy asked for water, and my wife attempted to give her some; and my wife thought she swallowed some. As my wife turned to set the glass on the stand, she remarked she must have taken something; there is a spoon. I asked Nancy Holly then if she had taken anything; she replied, ‘ Yes, a quinine powder/ I asked her who gave it to her — a doctor ? She said ‘ No; a man at Laramie Station/ I asked her what that man’s name was; she did not give an immediate reply; some time elapsed before she answered. I told her that I hoped she would not repay our kindness in giving her a shelter by bringing trouble over us; that there would probably be a judicial investigation about that matter, and it was very essential that it should be known who gave her that medicine or poioder. I can’t say which word I used, but I think medicine. I then again asked her what his name was, and she answered, ‘ Robbins.’ I asked her what his first name was, and she said ‘ Edward/ I then asked her for what purpose he had given her this, or it; she answered, ‘ To destroy my child.’ This is about all that was said at that time. Sometime after that the conversation about the child was. She spoke up, I think, without being spoken to, and said, ‘ Send or write to Laramie Station, and the folks will come after my dear child/ I can’t say which word she used, send or write; perhaps the latter. I asked her what folks; she replied, ‘ Holly’s/ That was the last word I heard her speak. The same witness further testified to the finding of a paper in the room in which Nancy Holly died, to which was adhering a small portion of whitish powder or crystals; this paper was taken charge of by Dr. Sweeny.

      “ The state, further to maintain the issue on her part, introduced as a witness Mary A. Euherrmmd, wife of said Ferdinand C. Ruhermund, who, touching the same matter, testified as follows:
    “ On the evening of the second day she (Nancy Holly) was at our house, she retired about 9 o’clock, or may be a little later; her child was lying on the lounge asleep; she was sewing with me. I told her it was about 9 o’clock, and time to go to bed, and she took her child up and, I suppose, undressed it. Soon after she came down after water, it might be fifteen minutes, or it might not be quite that long; I was sitting there. She took water up stairs in a glass; she did not take a spoon, as I saw. I pretty soon went to bed, aftei* 9 o’clock; don’t remember time exactly. I recollect, too, of looking at the clock, and it was after 9 o’clock. I went into my room and was just about to retire, but had not gone to bed, and I heard a noise; I thought it was on the street. I hoisted the window and looked out, and could see nothing; I heard no more noise. I retired to bed, got into a doze, and then I heard some hollowing again. As I heard the hollowing, I thought there was a child crying with it, and the thought struck me if it was n’t that woman up stairs. I took the candle that was sitting on the stand in my room burning, and went to the foot of the staks and opened the stair door, and I heard plain that it was up stairs. I went on up, and as I got pretty near to her, I asked what was the matter; she made no reply; she was still screaming. She said, ' Oh can’t you get a doctor ? I must die.’ I told her 'Oh no, I guessed not; it was not as bad as that.’ .1 asked her if she knew what she was doing and saying; she said she did; she was engaged in prayer all the time, saying something. I was with her a few minutes, and seeing that she was getting a spasm, I took some water and splashed it in her face. And she had a very severe spasm; I think it was harder than any one I saw her have that night; I had not seen any before that; I did not see all; I saw some after she was screaming. I told her not to scream so, and I would go and get some one. I saw a light up stairs at Matthews’s house, and I went over to Matthews’s. I requested Mr. Matthews, who came to the door, to go after my husband; that the strange lady at our house was dying. I think I said to him I thought she was dying. I went over to Mrs. Tharp’s, and requested her to come; and I told her the same that I told Matthews. She came. As I was going into the gate, Mrs. Brown was coming; she heard the screaming, and asked rue if it was me. I told her no; it was a strange lady np stairs. I told her I was very glad she had come. I told her, ‘ Let us go up ’; we went up. She was still going on with her screaming and spasms; she said something about sending her child to Laramie Station. She would keep saying, {Oh, I must die/ I don’t know any more. I went down stairs; my child was crying, and her child too; I took her child down. All this occurred before my husband came; I did not see her die.
    “ The state, further to maintain the issue on her part, introduced as a witness Nancy Tharp, who testified as follows:
    “ I saw Nancy Holly, on the night of her death, just before Mr. Ruhermund came in; she exclaimed, ‘Oh, Lord, I must die.’ Ruhermund came up stairs right after me; he was so close after me that he had a chance to hear it. I remained in the room until her death. The witness then proceeded to detail the conversation between Nancy Holly and Ruhermund, as heretofore given by Ruhermund,
    “ The state, further to maintain the issue on her part, introduced as witnesses R. L. Sweeney and J. M. Christian, physicians, resident of said Marion county, whose testimony tended to prove, that they had performed a postmortem examination upon the body of the said Nancy Holly, after her decease; that her body exhibited all the symptoms of death by poisoning by strychnine; that they found her to be enciente, and six months advanced in pregnancy; that her stomach was removed and preserved, and taken to Cleveland, and there submitted to Dr. Cassels, to be tested for the presence of poison; also the paper with the whitish poison, found in the room with the deceased; — both of said physicians, upon their oaths, giving it as their medical opinion, (that) the death of the said Nancy was produced by poisoning by strychnine, and that they entertained no doubt upon that point.
    “ And the said Dr. J. L. Cassels being recalled by the state, testimony to that he had received the stomach from Dr. Sweeney, testified to by him as having been taken from the body of Nancy Holly, and subjected it and its contents to a chemical examination, to determine the presence of strychnine or other poisonous ' substances, and, as the result of such examination, found decided proofs of strychnine in the stomach, and in such quantity as to render it certain that it had been taken into the stomach in quantity sufficient to render death inevitable ; and that he also tested the powder adhering to the paper aforesaid, and found it to be strychnine.
    “ And the state, further to maintain the issue on her part, further called out testimony, from P. H. Hardesty, tending to prove that, on the morning after the arrest of the defendant, witness visited him in Shelby county jail, and addressed him with the words: ‘ Ed, this is a pretty hard case;’ to which defendant answered, ‘Yes, but it is too true.’ Defendant further, at the same time, said to witness, ‘ I don’t deny but I gave her medicine, but it was not poison.’
    “ And the state, further to maintain the issue on her part, called out testimony, from George W. Holly (brother to the deceased), tending to prove that Nancy Holly had no aunt or other relative living at Cleveland.
    “ And the state, after offering further testimony tending to prove the guilt of the defendant, rested.
    “ And be it further remembered, that after the evidence on both sides had been closed, and the arguments of counsel for the state and for the defendant had been concluded, the defendant, by his counsel, asked the couft to charge the jury, that if they were satisfied from the evidence, that if the poison, charged in the indictment to have been administered by defendant to Nancy Holly, had been given by the defendant into the hands of said Nancy, in the county of Shelby, in the State of Ohio, under the pretense of said defendant that it was not poison, but a quinine powder, to be carried by her to the county of Marion, or any other place out of said county of Shelby, to be taken by her, and that, in pursuance of such direction of said defendant, said Nancy carried the said poison to the county of Marion, took and swallowed the same ignorant that it was poison, but believing it to be quinine, and that the defendant never had been in the county of Marion aforesaid until after the death of said Nancy, the said defendant could not be found guilty under this indictment. "Which charge the court refused to' give, but charged the jury as follows:
    “ Gentlemen of the Jury: The defendant, Edward Robbins, is on trial charged with murder in the first degree, by poisoning.
    “ The indictment, which charged this crime against him, is founded on a statute in these words: ‘ That if any person shall purposely and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary, or by administering poison, or causing the same to be done, kill another; every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.5
    “ This is the law of Ohio, which defines the crime for which the defendant is on trial. The indictment charges that Edward Robbins, on the 29th day of July, A. D. 1857, unlawfully, purposely, and of deliberate and premeditated malice, a large quantity of a deadly poison, called strychnine, did administer unto Nancy Holly, at Marion county, with intent then and there that she should take and swallow down the same into her body, the said Edward Robbins then and there well knowing the said strychnine to be a deadly poison. That the said Nancy Holly did, then and there, take and swallow down into her body said strychnine, at the instance and request of said Robbins, by means of which she became and was mortally sick in her body, of which mortal sickness she died, on said 29th day of July, 1857, at Marion county; and so the defendant did kill and murder said Nancy Holly. The indictment contains several counts, but as they are all designed to cover the same charge, and do substantially, and without material difference, describe the same crime, it is not necessary more particularly to direct your attention to the indictment. To this indictment the defendant has pleaded, Not guilty; and this issue, thus made, you have been impanneled and sworn to try, and you are now upon your oaths to decide. Of the importance of the case — the duty of bestowing upon it a full and careful consideration, so that neither the innocent shall unjustly suffer, nor the guilty go unpunished —you have been admonished already, by counsel on both sides of the case; and indeed without that, I doubt not, you would, as you now do, duly appreciaté the solemn duty entrusted to you of deciding between the state and the accused.
    “You have heard all the testimony with becoming patience and care. You have given due attention to the able arguments of the counsel, who have with equal candor and fidelity represented the state and the accused, and it now remains for you to receive the charge of the court, and then to pronounce your verdict.
    “In discharging the duty which the law has entrusted to you, I will direct your attention, first, to the rules of law which you will observe in relation to the evidence. Second, to the facts which must be proved in order to establish the guilt of the defendant as he stands charged in the indictment.
    “ I adopt this order because I conceive it a convenient form of considering the issue submitted to the jury, and as conducing, in some degree, to arrive at a correct result.
    “In considering every fact to he proved, and in passing upon the whole issue, the rules of law which determine the measure of the evidence necessary to convict, should be duly considered to enable the jury to arrive at a correct conclusion. '
    “ Eirst, as to the rules of law.
    “I. It is the province and the duty of the jury to determine what is and what is not proven in the case; to pass upon all questions of fact. This is the exclusive province of the jury, and one (with) which the court will not and cannot properly interfere or direct. Sometimes a jury imagine that the judge entertains a particular opinion either for or against the defendant, but it is the duty of the jury not to know or even to consider whether any opinion is or is not entertained by the court as to the guilt or innocence of the accused. The finding of the jury upon all questions of fact, and upon the issue submitted to them, of guilty or not guilty, is to be their finding exclusively, upon the evidence unexplained by the opinions of others.
    “ II. It is the duty of (the) jury to receive the law as it is given to them by the Court. It is the exclusive province of the court to determine what the law is, and the jury have no right to hold the law to be otherwise, in any particular, than as given to them by the court.
    “ III. The presumption of the law is that the defendant is innocent, and this presumption continues until his guilt is established by evidence. He is not required to establish his innocence, but has a right to rely on the legal presumption in his favor. Unless it is overthrown by sufficient evidence, the defendant must be acquitted.
    “IV. In order to convict the defendant, the evidence must satisfy the jury, beyond a reasonable doubt, that he is guilty as he stands charged. And as the defendant’s guilt is only established by sufficient proof of several material particulars, the proof must satisfy the jury, beyond a reasonable doubt, of the existence of each fact necessary to constitute his guilt, or the jury must acquit.
    “As this subject of ‘reasonable doubts,’ is not always accurately understood, and, when misunderstood, may for that reason result either in the unjust conviction of the innocent or the acquittal of those who are really guilty, and thus turn out upon society, for whose protection laws are enacted and courts instituted, the abandoned and the lawless to perpetrate new outrages, I deem it a duty to explain more fully what these ‘reasonable doubts’ are, as defined by law, and what they require.
    “1. If, when the jury have considered all the evidence in the case, the guilt of the defenderá is not fully proved, then that reasonable doubt exists which should acquit, for the legal presumption of innocence would, in such case, demand an acquittal. In civil cases, it is said the jury weigh the evidence, and when it is sufficient, decide according to the preponderance, though a reasonable doubt may exist of the correctness of the decision; but in criminal cases, as there is neither a preponderance, nor any weight of preponderant evidence, (which) is sufficient unless it produce in the mind full belief beyond a reasonable doubt, a reasonable doubt exists, when only a probability, and even a strong probability of guilt is established, ‘ arising from the doctrine of chances that the fact charged is more likely to be true than the contrary.’
    “A reasonable doubt is one which exists in the mind of a reasonable man, after giving due weight to all the evidence, and such as leaves the mind in a condition in which it is not honestly satisfied, and not convinced to a moral certainty of the guilt of the accused. A reasonable doubt is an honest uncertainty existing in the mind of an honest, impartial, reasonable man, after a full and careful consideration Of all the evidence with a desire to ascertain truth regardless of consequences.
    “2. But a reasonable doubt is to be distinguished from a mere captious doubt, a mere possible doubt, a more arbitrary and speculative doubt. If a jury should be fully and clearly convinced of the guilt of the defendant in a case where the evidence established it, and because of an aversion to capital punishment, should for that reason create a doubt in the mind that would not otherwise exist, that would not be a reasonable doubt. It would be moral perjury, as much to be censured in principle and practice, as to be dreaded in its consequences. The jury have nothing to clo with the consequences of their verdict, aside from the duty imposed to ascertain truth according to law. A mere speculative doubt, excited in the mind against evidence from any .cause to furnish a pretext for acquittal, is not a reasonable doubt. A mere possible doubt, or an idea that there is a very remote possibility that the accused may not be guilty, is not a reasonable doubt. The defendant is entitled to the benefit of every reasonable doubt, but this does not mean that a jury shall acquit in any case, if the defendant is fully, clearly and legally proved guilty; for that would not only be unreasonable, but unlawful. The law does not require that the proof shall satisfy the mind of the jury beyond all possible doubt, but only beyond a reasonable doubt; and while it is true that the law deems it better that many guilty persons should go unpunished for want of adequate proof of guilt, rather than that an innocent person should be convicted upon insufficient evidence, yet, absolute, unequivocal, positive certainty, is not required in any case. In order to find the defendant, guilty, it is not necessary that the mind of the jury should be convinced so as to feel satisfied that their verdict is absolutely, unequivocally, positively, certainly correct. Possible and contingent doubt hangs over almost all human affairs. Absolute, unqualified certainty is rarely attainable; and this is a degree of perfection not required, by the law, of the jury, even though the absence of such certainty may by possibility very rarely convict an innocent person. The doubt which acquits must be real, not imaginary and without foundation. I admonish you, then, to give to the defendant the benefit of every reasonable doubt, as I have thus defined it, for that is his right. If any one juror should entertain this reasonable doubt, it is his duty to withhold his assent to the rendition of a verdict of guilty.
    “ The evidence, in order to convict the defendant, must be such as not only to prove the guilt of the defendant, but such as to a moral certainty, beyond a reasonable doubt, to exclude or disprove every hypothesis but that of the guilt of the defendant. Thus it must be fully and satisfactorily proved that the death of Nancy Holly was neither occasioned by natural causes, by accident, nor by her own act. (1 Stark. 576.) If she committed suicide by taking-poison, and the poison of which she died was not administered by the defendant, the defendant should be acquitted. The evidence must be such as to prove that her death was not her own sole act, hnaided by the defendant.
    “ VI. Evidence may be either positive or circumstantial. If a witness sees, knows, and testifies to the commission of an act, or hears and testifies to an admission of guilt by a party who is accused, that is demonstrated positive evidence. The credibility and the weight of this evidence belong exclusively to the determination of the jury. But it is not possible always, and especially in criminal cases, to establish guilt by positive testimony; nor is it necessary. Men do not generally commit great and infamous crimes in the presence of witnesses. The safety of life and property requires, and the law has truly provided, that circumstantial evidence alone, shall, when sufficient, justify a conviction, even in capital cases. Positive proof is not required. The credibility of witnesses who detail circumstances in evidence, and the weight of the circumstances detailed, are to be determined solely by the jury, subject, of course, to the instructions of the court as to the weight of conclusive presumptions, when such exist.
    “VII. A question sometimes arises as to the degree of credit to be given to admissions of a defendant, or confessions of guilt. The weight to be given to such admissions is necessarily to be determined by the jury, and much may depend upon the situation of the accused, of the witness and the attendant circumstances; the evidence of verbal confessions of guilt is to be received with great caution. The liability of the witness to misunderstand what was- said, to misconceive its meaning or purpose, the embarrassing circumstances under which such admissions are sometimes made, the emotions of hope or fear that operate on the mind of the accused, the zeal on the part of the hearer to detect guilt, the exaggeration or misunderstanding arising from suspicion in the mind of the hearer, the difficulty of contradicting the statements and his motive, with all other facts and circumstances, are to be duly considered, and the accused is to have their full benefit. Qualified by these precautions in receiving and considering, it is generally agreed that deliberate and voluntary confessions of guilt clearly prove one among the most effectual proofs of the law. When clearly deliberate and voluntary, it is proper for the jury to consider whether, without motive, an innocent party would make admissions prejudicial to his interest, and establishing, or tending to establish, his guilt. Qualified by the same precaution, confessions may be inferred from the conduct of a party accused, from his silent acquiescence in the statements of others respecting himself, made in his presence, under circumstances clearly showing he understood them, and (had) the opportunity and capacity to reply, and (was) in a position calling for reply. The degree of credit and weight due to all these, if such exist, is to be estimated by the jury, under the circumstances of each case. And when such admissions and confessions exist, and there are circumstances corroborating them, it is the right and the duty of the jury to consider the whole, and give to all that weight and force in establishing the guilt of the accused, to which it may be entitled.
    “ VIII. Upon the gx-ound of the public necessity of preserving the lives of the community and of punishing manslayers, the dying declarations of Nancy Holly are competent evidence against the defendant. Such declarations ax’e only evidence when made under a sense of impending death, and with the belief existing in the mind of the person whose declarations are given in evidence, that death is inevitable, and that the prospect of death is almost immediate. It is the province of the court to determine, in the first instance, whether dying declarations, or those claimed to be such, are admissible; but when introduced to the jury, their credibility and weight are exclusively within the province of the jury. It is the duty of the jury to weigh all the circumstances under which they were made, including all the evidence in the case, whether given to the court to lay the foundation for admitting them, or otherwise. The state can only claim dying declarations as evidence, so far as the circumstances and cause of the death are the subject of them; and to render them competent, such declarations must be in themselves complete ; for if they appear to have been intended by the deceased to be connected with and qualified by other statements, which were from any cause prevented from being made, they would not be evidence. 'When such declarations are deliberately and intelligently made, under a solemn and religious sense of impending and almost immediate dissolution, and concerning’ circumstances in respect to which the deceased was not likely to have been mistaken, when precisely identified, and when corroborated by other competent evidence, the jury may well consider them as entitled to weight, and determine their effect as evidence. At the same time, it is proper for the jury to consider and make due allowance for all circumstances and considerations which may destroy or inrpair their force. The absence of the sanction of an oath; the absence of a cross-examination of the dying person, so well calculated to elicit truth; the state of mind and motives of the dying person and the hearer; the absence or presence of a belief of almost immediate death; the .veracity and credibility of the dying person, as affected by any proper evidence, and the witness who hears them, with all other circumstances, are to be considered by the jury to determine what they prove.
    “ And if the person, whose declarations are thus offered in evidence, is shown to have made other and different statements, incorrect and untrue, all this is to be considered, to determine the credibility and weight to be given to the evidence. The jury will understand, I do not say any thing is or is not proved. I present the law, and with this law before you, you will consider if each material fact is established, which is necessary to prove the defendant guilty of murder, as he stands charged in the indictment.
    “ Second: The facts necessary to constitute the defendant guilty.
    “ I now proceed to state the facts which the jury must find to be established by evidence, in order to find the defendant guilty of murder in the first degree.
    “ 1. The jury must he satisfied that Nancy Holly, named in the indictment, is dead, and that she died before the finding of this indictment. The indictment avers that she died on the 29th of July, 1857; hut proof of her death on any day before that on which the indictment was found, to wit, November 11, 1857, is sufficient; if any doubt exists as to that, the defendant is not guilty. 1 Stark. 576.
    “2. The jury must find, from the evidence, that the death of said Nancy Holly was caused by poisoning, and that she died in Marion county, in the State of Ohio. The indictment charges that her death was caused by swallowing four grains of strychnine; but the amount is not material.
    “ 3. The jury must find, from the evidence, that the defendant Edward Robbins did administer to said Nancy Holly the poison of which she died; that he so administered it at Marion county, Ohio; that he so administered it unlawfully, purposely, and of deliberate and premeditated malice, knowing it to he a deadly poison; and that it was such poison.
    “ If these facts are proved, then the defendant is guilty, and it is the duty of the jury to return a verdict accordingly; and if these facts are proved, the defendant is guilty of. murder in the first degree, and the jury cannot find him guilty of any less crime.

      “ It is proper to explain, a little more fully the particular facts which I have just stated.
    “ To justify a verdict of guilty, the evidence must prove that the defendant administered to said Nancy Holly the poison of which she died, if she died of poison. But it is not necessary that the defendant should stand by and deliver it to her, at the time she took it in her mouth and swallowed it. It is not necessary that she should receive it from his hands at all. It is not necessary that he should be in Marion county. If he delivered the poison to her for the pui-pose of being by her swallowed into her body; or if he provided it for her and placed it where she could receive it, and so informed her; and if it was so provided and placed for the purpose of being by her swallowed into her body, and, in pursuance of that, she took it from the place where he so deposited it, and in either case swallowed it into her,body; then, in either case, the facts stated would constitute an administering poison within the meaning of the statute. But it is not enough that the poison should be administered. It. must be administered in Marion county, Ohio; but this does not require that the defendant should be in Marion county at any time. If the defendant, at Shelby county, Ohio, delivered into the hands of Nancy Holly, for the purpose of being by said Nancy Holly swallowed into her body, the poison of which she died, for the purpose that she should carry it to Marion county, and there swallow it into her body; or for the purpose that she should carry it from Shelby county, whithersoever she might go, and there swallow it into her body; or for the purpose that she should carry it to Cleveland, and. there swallow it into her body; and if she, having so received it of the defendant for such purpose, carried it to Marion county, and there swallowed it into her body; in either case, the defendant would be guilty of an administering poison at Marion county; and if, instead of actually delivering the poison into her hand, he provided it for her, placed it where she could secure it for the purpose aforesaid, and so informed her, and, in pursuance thereof, she took it from the place so deposited, it would he equally an administering at Marion county. To justify a verdict of guilty, the administering by the defendant of the poison must also be an unlawful administering. A physician or other person exercising due care, who administers a poison honestly, as a curative, and believing it will have a curative effect, is not guilty of crime, even if death ensue; for neither his act nor his purpose is unlawful. But when a person knowingly gives poison, with a knowledge of its deadly effects, without an honest purpose to produce some lawful effect, but with an intent to kill the person to whom it is administered, or with an intention to produce an abortion unlawfully upon a pregnant woman, but without any intention to kill the woman, such administering is an unlawful administering.
    “ To find the defendant guilty of murder in the first degree, the evidence must prove that the poison was administered as stated, purposely; that is, that it was not the result of accident, mistake^ or even negligence, but that the acts which constitute the administering were intentional, and done for the purpose of administering. To find the defendant guilty as stated, the evidence must further prove, that the defendant administered the poison to Nancy Holly, of which she died, of deliberate and premeditated malice. In most cases of murder in the first degree, it is necessary to establish by proof, beyond a reasonable doubt, the fact of killing, the intent to kill, and the deliberate and premeditated malice; but on such an indictment asjhis, in order to find the defendant guilty of murder in the first degree, it is not necessary that the defendant, at any time, have intended to kill Nancy Holly; nor is it necessary to prove deliberate and premeditated malice, except as it may be shown to exist, by proving that the defendant did, as charged in the indictment and as stated, unlawfully and purposely administer to Nancy Holly, at Marion county, the strychnine poison of which she died, at said county, and that defendant, when he so administered it, knew it to be a deadly poison. The law most emphatically declares, that ‘ when a man willfully X>oisons another, in such deliberate ack-the law presumes malice, thougETñNpárticular enmity can be proved.5 "When all this~is' proved, deliberate and x>remeditated malice is proved,"and that ingr.edient of the crime is established. In its legal sense, ‘ malice is the dictate of a wicked, depraved and malignant heart.5 It is not necessary that the malignity should be confined to a particular ill-will toward the person injured; it is evidenced by any act which springs from a wicked, corrupt motive, attended by circumstances indicating a heart regardless of social duty, and bent on mischief. Malice is said to be expressed when the cruel act is done with a sedate and deliberate mind, with settled and formed purpose. This kind of malice is generally evidenced by the circumstances preceding and attending the transaction conqplained of; as, by threats, menaces, former grudges, lying in wait, concerted schemes to do injury, or by an unusual degree of cruelty attending the act. Malice is implied where the killing is sudden, without any or great provocation; and also iohe.ro the act done necessarily shows a depraved heart, as the giving of poison.
    “ To justify a verdict of guilty, the defendant must also have known that the poison, of which Nancy Holly died, was a deadly poison; a poison the effect of which would be to produce death. It is not my purpose to recapitulate the evidence introduced, to prove and to disprove the allegations of the indictment.
    “ It will be proper for you to consider the inquiries: — Had the defendant any motive to poison Nancy Holly? Had he the opportunity of administering poison ? Had he poison in his possession, or power to administer ? Men generally act from motive; and when to this is added the opportunity and the means of committing crime, these may all be very properly considered in estimating the evidence, and in determining the question of guilt or innocenee. On the other hand, it is the duty of the jury to determine whether the evidence, beyond a reasonable doubt, establishes every fact necessary to constitute the guilt of the defendant; for if not, he must be acquitted. Does the evidence, in like manner, disprove the hypothesis, that Nancy Holly committed suicide, unaided by Edward Robbins ? Had she of herself a purpose to commit suicide and the means of procuring poison, and did she know that she was taking poison, or only a quinine powder ? These, and all other facts and circumstances in the case, you will consider candidly, fairly, honestly, fully, with a view to ascertain the truth. You will bring to your deliberations the best powers of your mind, and an honest, conscientious purpose to do justice between the state and the accused. If, after all this, you entertain a reasonable doubt of the defendant’s guilt, it will be your duty to acquit. If, on the other hand, his guilt is fully proved by the evidence, it will be your duty to return a verdict of guilty, however unpleasant that duty may be. If you find the defendant not guilty, you will simply so say in your verdict. If you find him guilty, the statute expressly requires you to specify, in your verdict, of what exime he is guilty. If, therefore, you find the defendant guilty, as he stands chax’ged in the indictment, you will in your verdict say:
    ‘ "We, the jury, find the defendaxit Edward Robbins guilty of murder in the first degree, as he stands charged ixx the indictment.’ It will not be sufficient to say oxxly that you find him guilty, or that you find him guilty of murder; for, in certain cases, murder may be of different degrees.
    “ If no further instructions are asked, the jury may retire to consider of their verdict.
    “ To all of which charges and instructions to the jury, the defendant excepts. And the foregoing bill of exceptions was signed, sealed, and ordered to be recorded.”
    On behalf of the plaintiff in error, it is claimed that the court of common pleas erred:

      1st. In refusing the defendant his election to be tried in the district court.
    2d. In overruling the demurrer of the defendant to the indictment.
    '3d. In permitting the dying declarations of Nancy Holley to be given in evidence to the jury.
    4th. In refusing to instruct the jury as asked by the . defendant, and in tbe instructions given to tbe jury.
    5th. In charging tbe jury that if tbey found tbe defendant guilty, tbey must find bim guilty of murder in tbe first degree, and that tbey could not find bim guilty of any other offense.
    6th. In charging tbe jury that tbey were bound to take tbe law as given to them by tbe court, and that tbey were not to judge of the law, as well as of tbe facts in tbe case, and that tbey bad no right to bold it otherwise in any particular.
    7th. And, in charging that tbe jury might convict of murder in tbe first degree on this indictment, without finding that tbe accused did tbe act with a purpose or intent to kill Nancy Holly.
    8th. Also other errors apparent on tbe record.

      Peleg Bunker, and J. 8. Conklin, for plaintiff in error.

      James PL. Anderson, and P. B. Warden, for tbe state. ■
   BARTLEY, C. J.

i'iuiubiuus questions, some of which are of grave importance, are raised by tbe assignments of error in this case. Tbey will be noticed in tbe order, as near as may be, in which tbey are presented on tbe record.

Tbe first assignment of error raises the question of tbe right of tbe accused to elect to be tried in tbe district court. Tbe statute, directing tbe mode of trial in criminal cases, (Rev. Stat. 724,) provides, that on tbe arraignment of a person indicted for a capital offense, and before pleading, he shall be allowed the liberty to elect whether he will be tried in the supreme court of the county or in the court of common pleas. This statute was enacted under the former constitution of the state, and was applicable to the judicial system under that constitution. By the present constitution, the district court was made the successor of the supreme court in each county under the former constitution. But, except as to causes pending, the original jurisdiction of the district court was expressly defined by the constitution, and, as it has been interpreted, limited to four writs, thereby excluding the jurisdiction in the trial of cases the punishment whereof is death, which had been given to the late supreme court. The question whether the district court could take jurisdiction for the trial of such cases, on the election of the accused pursuant to the statutory provision on that subject, was directly made in the case of Parks v. The State, wherein the decision of the eomm'on pleas, denying to the accused the right to elect to he tried in the district court, was, on full consideration, affirmed by this court. S Ohio St. Rep. 101. This unfortunate operation of the present constitution, doubtless the result of oversight, is much to be regretted. While the new constitution enlarged the means of obtaining justice in civil cases — providing two courts, and allowing a trial in each, as a matter of right, in contests for property, it narrowed the chance for impartial justice, in causes in which life is at stake, by allowing a trial in such cases only in the common pleas, and taking away the right of the accused, which had existed, to elect to be tried in the higher tribunal, held by several judges removed from the local excitement and prejudice which too often surround the single judge in the trial of capital cases, in the common pleas. But the constitution having thus, by its operation, taken away that important right in the trial of cases involving man’s highest earthly interest, the courts have no power to remedy the difficulty by a restoration of the right thus abridged.

The second assignment of error is, that the common pleas erred in overruling the demurrer to the second, third, fourth, and sixth counts of the indictment. These counts, not containing a direct averment of an intention to kill, in the description of the offense, were defective as counts for murder. But inasmuch as a conviction for manslaughter may be sustained on an indictment for murder, if these counts were substantially sufficient to sustain a verdict for manslaughter, the court did not err in overruling the demurrer.

The verdict is substantially a general verdict of guilty of murder in the first degree; and it is conceded that a judgment on such a verdict will not be reversed on account of one or more bad counts, if there be one good count in the indictment. Bailey v. The State, 4 Ohio St. Rep. 440. It is contended, however, that this rule does not prevail where the accused has, before plea, demurred to the bad counts ; in other words, that it is the right of the accused to purge the indictment of all bad counts by demurrer. There would be great force in this argument if the counts demurred to laid the foundation for the troduction of evidence on the trial, which would not have been competent or pertinent to sustain the good counts. But as this could not have been the case under the indictment before us, we are not able to see how the plaintiff in error could have been prejudiced by the ruling of the common pleas in regard to the demurrer. It may be the right of the accused to demur to the defective counts of an indictment, and invoke the judgment of the court upon them. But if, after the demurrer is overruled, the accused pleads to the whole.-indictment, and there is a general verdict of guilty, the good counts will sustain the judgment of the court. This is the general rule, and we see nothing in this case to make it an exception.

It is assigned for error, in the third place, that the court erred in admitting in evidence the dying declarations of Nancy Holly. This evidence was objected to first, on the ground of the constitutional provision, that the accused shah be allowed to meet the witnesses against him face to face on his trial; and secondly, on the ground of an insufficient preliminary showing that the declarations were made in articulo mortis. The constitutional objection cannot be considered an open question in Ohio at this day. It was directly decided in Montgomery v. The State, 11 Ohio Rep. 424; and in Summons v. The State, 5 Ohio St. Rep. 339, the same objection, to evidence of what a deceased witness had testified to on a former trial, was fully examined and decided. This objection is founded in a misconception of fact. The accused is confronted by the witness on his trial. The deceased person is not the witness, but the person who can relate, on the trial, the death-bed declarations, is the witness. The objection, if there be one, is to the competency of the evidence, and not to the want of the personal presence of the witness. And it appears to be well settled, that dying declarations, within the restricted rule prescribed, fall within the exceptions to the general rule that hearsay is not evidence.

It is essential to the competency of evidence of dying declarations, .that it should be made to appear to the court that they were made under a sense of impending death, excluding from the mind of the dying person all hope or expectation of recovery. In this case dissolution was rapidly approaching, and Nancy Holly died in a very short time after making the declarations admitted as evidence. We are not prepared to say, under the state of the proof, that the court erred in admitting this evidence, upon the ground that the dying person still retained a hope or expectation of recovery.

The remaining assignments of error are founded on exceptions to the charge of the court to the jury, and to the refusal to charge as requested.

The court was asked to instruct the jury that, to convict under this indictment, it must be proved! that the offense was committed in Marion county; and that, if the accused gave the poison into the hands of the deceased, in Shelby county, and she did not swallow it there, but carried it with her into Marion county, and there swallowed it, and became poisoned, the crime was committed, if committed at all, in Shelby, and not in Marion county. Tbe court refused to give this instruction, as asked; but did charge tbe jury that, before finding a verdict of guilty, they must be satisfied, from tbe proof, tbat tbe accused committed tbe act in Marion county; but tbat it was not necessary tbat they should find tbat be bad been in Marion county, or bad given the poison into tbe bands of tbe deceased in tbat county; it would be sufficient to justify a conviction, if they found tbat tbe accused bad furnished tbe poison to Nancy Holly in Sbelby county, and tbat, before swallowing it, sbe bad taken it with her and went into tbe county of Marion, and there swallowed tbe poison and died. It is insisted, tbat tbe court erred in this part of tbe instructions to tbe jury. To determine this, it becomes necessary to inquire what constitutes tbe act of “ administering poison” within tbe meaning of tbe statute. If it consisted in simply giving or prescribing tbe poison* there would be great force in this exception. But tbe term” « administer,” as used in tbe statute, has acquired a legal signification, importing not simply the prescribing or giving of tbe drug, but directing and causingüto be taken. Webster, in bis dictionary (quarto), says tnaty~£i To administer medicine is to direct and cause it to be taken.” Tbe question as to tbe legal import of this term, in tbe criminal statute of England, (9 Geo. IV, 31, S. 11), was presented in tbe case of Rex v. Cadman, wherein it was held, tbat there was no administering unless tbe poison was taken into tbe stomach by tbe person to whom it was administered. Carr. Supp. 237. It is true, Ryan and Moody have given a contradictory report of this decision. Rex v. Cadman, R. & M. C. C. Rep. 114. But Mr. Justice Park, who participated iu the decision, took occasion to correct the mistake and affirm the correctness of Carrington’s report of the case, in the decision of Rex v. Harley, 19 Eng. Com. Law Rep. 424, in which he said, “that his note” (as well as his recollection) “ of the case was, that the judges were unanimously of opinion that the poison had not been administered, because it had not been taken into the stomach, but only into the mouth.” That the term has the same import in the criminal statutes of this state, is manifest from the phraseology of the 37th section of the act for the punishment of crimes, (Rev. Statutes of Ohio 275,) which is as follows : “ That if any person shall give any mortal blow, or administer any poison to another, in any county within this state, with intent to kilb-and the party so stricken or poisoned thereof, shall afterwards die in any other county or state, the person giving such mortal blow,, or administering such poison, may be tried and convicted of murder or manslaughter, as the case may be, in the county where such mortal blow was given, or poison administered.” This provides for cases where, after the criminal act is fully consummated, the person receiving the mortal blow, or swallowing the poison, is enabled to go, and does go, into another county or state, before death. It is not the place of the death, but the place where the criminal act is perpetrated or consmnmated, to which the jurisdiction to try the case is given. The language of the statute is, “ and the party so stricken or poisoned thereof, shall aftex’wards die in any other county or state,” etc. The county to which the jurisdiction is given, is the county in which the pei’son is “poisoned thereof;” that is, of the administering mentioned. Now, the poison must be taken into the stomach before the person can be poisoned. So that the administering the poison is not consummated until the person to whom it is administered is poisoned. It is manifest, therefore, that the criminal act of administering poison is not consummated by simply prescribing or delivering the poison; it must be actually swallowed, or taken into the stomach, pursuant to the prescription or direction given, in order to constitute the overt act of administering poison. If the accused did prescribe and deliver the poison to Nancy Holly in Shelby county, yet as she did not take it, or swallow it, in that county, the criminal act was not complete in that county, but was consummated in Marion county, where Nancy was actually poisoned. Now, where a criminal act is commenced in one county, but consummated in another, the jurisdiction to try the offender is in the county where the criminal act is consummated, or becomes complete. It is insisted, that the accused had not been in Marion county; and that a person could not commit a crime in a county in which he had not been. Ordinarily, this would be true, but it is not necessarily so. A person may commit a criminal act in a county, although he 'has never stepped a foot within its limits. If a person in Morrow county, near the line of Marion county, should, by firing a gun, or hurling a bludgeon across the county line, unlawfully kill a person in Marion county, he might be guilty of a crime, and be amenable to a prosecution in the latter county, although he had never been within its limits.

There does not appear, therefore, to have been any error in the charge of the court on this point.

It is insisted, that the common pleas erred in the following instruction, to wit: “ It is the duty of the jury to receive the law as it is given to them by the court; it is the exclusive province of the court to determine what the law is; and the jury have no right to hold the law to be otherwise in any particular than as given to them by the court.” There was no error in this instruction to the jury. By the expression, “ the jury have no right to hold the law to be otherwise in any particular,” etc., is, of course, to be understood, not the arbitrary power, but the right of the jury in the conscientious and prpper discharge of their duty. It is made the peculiar province of the court to decide the questions of law, and that of the jury to decide the questions of fact, under the instructions of the court as to the law of the case. It is true, that inasmuch as the rule, that a man shall hot be put in jeopardy twice for the same offense, deprives the court of the power of granting' a new trial, in case of a verdict of acquittal, the jury has the arbitrary power, in a verdict of not guilty, to place their determination of a case, both as to law and as to fact, beyond the reach of the supervisory power of the court on motion for new trial. But this humane provision, in favor of the accused in criminal cases, was never designed to abridge the peculiar province of the court in the instructions to the jury on questions of law. Its object was wholly different. The judges of courts are selected with a view to their knowledge of the law, and jurors with a view to their practical good sense on matters of fact.' If, on the trial of a criminal case, the court err in the determination of questions of law against the accused, he has his remedy to correct the error by motion after verdict, and also by writ of error. It is the duty of the jury, therefore, to regard the law as determined by the court; and this duty is required by the obligations of the juror’s oath. And in the proper and conscientious discharge of their duty, a jury cannot, or, in other words, has no right to determine that the court has erred in its instructions as to the law, and, therefore, to disregard the law as laid down to them by the court. This is in accordance with the rule prescribed in Montgomery v. The State, 11 Ohio Rep. 424; and as settled by the great weight of authority, both in the federal and state courts. See Whar. Amer. Or. Law, from 999 to 1006, where the adjudications on this subject are collected and reviewed.

The court further charged the jury as follows, to wit: “ In most cases of murder in the first degree, it is necessary to establish, by proof, beyond a reasonable doubt, the fact of killing, the intent to kill, and the deliberate and premeditated malice; but, on such an indictment as this, in order to find the defendant guilty of murder in the first degree, it is not necessary that the defendant at any time have intended to MU Nancy Holly,” etc. Tbe exception to this charge raises the question whether, under the statute of this state, a purpose or intention to -kill, enters into and constitutes an essential ingredient in the crime of murder in the first degree, committed by means of administering poison. And this is a question touching, not simply the evidence upon a trial, but the constituent elements of the crime itself. The circumstance of a person knowingly administering poison, would, in many cases, be pregnant evidence of an intention to kill. But, that poison may be administered, and even cause the death of the person taking it, when there was no purpose or intent to kill, must be conceded. Among the other supposable cases, this may occur where a physician or other person, through negligence or want of skill, shall kill another, by administering poison for some medicinal or curative purpose; or it may occur where the real purpose of administering the poison is to produce abortion with a pregnant female; or to produce some temporary sickness with a mischievous sportive view, or some temporary disability or bodily injury, but without any purpose or design whatever to kill the person to whom it is given. The determination of this question depends on the construction to be given to the first section of the statute of this state for the punishment of crimes; and it involves the inquiry, whether the punishment of death is, by our laws, inflicted for an unintentional homicide, in any case.

It is true, that purpose or intent to kill does not constitute an essential ingredient in the crime of murder by the common law. In England, there is no distinction by way of different degrees in murder; and every unlawful killing of one person by another, with malice aforethought, either express or implied, constitutes murder, and is punishable with death. This malice aforethought is said to consist, “ not so properly in spite or malevolence to the deceased in particular, as any evil design in general; the dictate of a wicked, depraved and malignant heart.” 4 Wend. Bl. 198. So that, by the common law, an unlawful killing with malice afoi*ethought, even although the manifest inteut or purpose was to do simply a bodily harm, but not to take life, constituted murder.' And, formerly, in England, the punishment of murder and that of manslaughter were one and the same. 4 Wend. Bl. 201. This, however, was altered by the statutory enactments of parliament.

But, in this country, criminal homicide differs essentially from the crime in England, not only as to the definition descriptive of the essential elements which constitute the offense, but also as to the punishment, which is here proportioned to the degree of turpitude, and danger attending the act. Fouts v. The State, preceding case. Nothing reflects more credit upon the laws of this country than that enlightened and humane spirit, which, discarding the sanguinary criminal codes of Europe, has made a sensible discrimination in regard to the turpitude of crime, and not only prescribed a rational mode of punishment, but justly graduated the punishment in proportion to the enormity and danger of the offense. The shocking apparatus of death, torment and ignominy, to be met with in the criminal code of England, and of almost every other nation of Europe, has been abhorrent and disgusting to the rational sensibilities of the people of this country. Super-added to the punishment of death were circumstances of terror, pain, or disgrace, provided in England; such as being drawn or dragged to the place of execution, emboweled or burned alive, drawn and quartered, a public dissection, or the hanging of the body upon a gibbet in chains, at or near the place where the criminal act was done, etc. By the statute of 22 Hen. YIII, C. 2, the painful and lingering punishment of being boiled to death was inflicted for the crime of murder by poisoning. 4 Wend. Bl. 196. And the writ de hceretico comburendo, for committing to tb^amesjffiejoody of a person for the crime of heresy, is said hysoñóe to have been as ancient as the common law itself. These cruel devices for purposes of torture in inflicting the punishment of death for what was deemed the more atrocious crimes, as well as the ignominious inventions, as the punishment for minor offenses, by mutilation or dismemberment, such as the cutting off'the hand or the ears, or fixing a lasting stigma by slitting the nostrils, or branding the hand or cheek, or by the use of the pillory, the stocks, or the ducking stool, etc., have been wholly discarded in this country, as relics of barbarism, inconsistent with the humane and enlightened spirit of the age.

The leading, if not the sole object in the administration of criminal justice, is the safety and protection of the community and its several members. Criminal punishment is not inflicted as an atonement or expiation for crime; that must be left to the wisdom of an overruling Providence. And the experience of past ages has taught that crime is more effectually prevented by the certainty, than by any unreasonable severity of punishment disproportionate to the turpitude and danger of the offense. Touching this subject, Blackstone, in his Commentaries, uses the following language:

“It is absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect, either in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty.” And the same author adds: “Although we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein inflicted (perhaps inattentively) by a multitude of successive independent statutes upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared to be felonies without benefit of clergy; or in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute; juries, through compassion, will sometimes forget their oaths, and either acquit the guilty, or mitigate the nature of the offense; and judges, through compassion, will respite one-half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer; he boldly engages in some desparate attempt to relieve his wants or supply his vices; and if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate in falling at last a sacrifice to those laws which long impunity has taught him to contemn.” 4 "Wend. Bl. 17 and 18.

Under these circumstances and in the face of these views, expressed by the most illustrious commentator on the common law, are we to look to the sanguinary criminal code of England, thus incumbered, as it is, with vestiges of barbarous antiquity, for the purpose of ascertaining the constituent elements of criminal offenses, which are not only created, but specifically defined, or rather described, by the statutes of Ohio ? In the most, if not all, the states of this country, criminal homicide, by express statutory provision, differs, in various material and essential particulars, from what it is by the common law. In Ohio, there is no such thing as murder at common law; indeed, all criminal offenses are here created and defined by statute. And the statutory definition of criminal homicide, expressly makes purpose or intent to kill a distinguishing feature, in the crime of murder, either of the first or of the second degree. And in the face of this specific provision, there can be no occasion for looking to the common law for light on the subject of the construction of this statute.

It is argued, however, that conceding this as a distinguishing element in murder of either degree, generally, yet that any homicide committed by administering poison, or while the perpetrator is in the commission or attempt to commit any rape, arson, robbery, or burglary, is, by the terms of the statute, made murder in the first degree, without this essential and distinguishing feature. This depends upon the true interpretation of the first section of the statute for the punishment of crimes. Rev. Stat. of 1854, 269.

I readily concede, that if purpose to kill is, by the express terms of the statute, made an essential ingredient in the crime of homicide by administering poison, it is equally so as to each of the other kinds of homicide, for which, by this section, the punishment of death is prescribed.

The true interpretation of the statute is best ascertained by considering, first, the reason and spirit of the law; second, the language of the section in question, in its proper and grammatical signification; third, the language employed in prior legislation on the same subject; and fourth, this provision of the statute construed in connection with other provisions relating to the same subject-matter.

1. As to the reason and spirit of the statute. The gradation of criminal punishment proportionate to the turpitude of crime, rests mainly upon the ground, that, to deter men from the commission of crimes of great atrocity, punishment of greater severity is required than for crimes of less enormity. It requires the greatest degree of depravity to harden offenders, and stimulate them to the perpetration of crimes of the highest grade; and the most wicked and depraved have less regard and fear for the milder kinds of punishment, than those who have a higher sense of humanity and moral duty. Hence the wisdom of the law has made the motive and intention of offenders an important, indeed, a controlling element in discriminating between crimes of different degrees of turpitude and danger. Blackstone says: “ All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration — the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act.....And as a vicious will without a vicious act is no civil crime; so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that, to constitute a crime against human laws, there must he, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will.” 4 Wend. Bl. 20. The same learned commentator mentions three cases in which the will does not join with the act: Eirst, where there is a defect of understanding; as in case of infancy, lunacy, etc.; second, where a man commits an unlawful act through misfortune, misadventure, or accident, and not by design; and third, where a man through ignorance or mistake, intending to do a lawful act, does that which is unlawful. In the first class of cases, there is no responsible, rational volition. In the other two, the deed and the will acting separately, or the will not cooperating with the deed, there is not that conjunction between them which is necessary to form a criminal act; in other words, “ one of the main ingredients of a crime” is wanting. 4 Wend. Bl. 26 and 27.

In the light of this important distinction, the criminal statutes of Ohio were framed. Discarding the various modes of torture, ignominy, and death, imposed by the sanguinary criminal code of England, our criminal statutes, in the enlightened spirit of reason and humanity, provided imprisonment, confinement to labor, and fine and amercement, as the principal modes of punishment; one crime alone, to wit, murder in the first degree, deemed the most atrocious and as evincing the greatest depravity in the perpetrator, being made punishable by death.

Pew, if any, exceptions to the rule, that the motive, intention or willfulness of a party, in doing an act, is essential to its criminality, are to be met with in our statutes. It is true that, in favorem vitae, involuntary homicide, perpetrated in the commission of some unlawful act, is made manslaughter. And even here, although the death of the person killed is not willful or intended, yet the unlawful act must be willful, and not by mere misadventure. Murder in the second degree, by the express terms of our statute, is an intentional as well as malicious killing, although without premeditation or deliberation. Punishment by death is provided, only, for the crime of the greatest atrocity; and even for this, it has been opposed by somej as a relic of barbarism, and as unsupported by an enlightened view of human rights. It is manifest that the idea that an involuntary or unintentional homicide can, in any instance, constitute murder in the first degree, in this state, the only crime punishable by death, is repugnant to the spirit and reason of our criminal statute.

The legitimate purpose of criminal punishment being the safety of the community and its individual members, by preventing the commission of crime, it is the duty of the government to endeavor to reform rather than exterminate offenders. And experience has taught, that the objects of the criminal law are better attained by moderate but certain, than by severe and excessive penalties. Hence our law has been framed upon the idea, that the public safety necessarily required the punishment of death only in cases of the greatest depravity and atrocity. And the infliction of this extreme punishment, for a homicide neither malicious nor voluntary, is wholly irreconcilable with the enlightened reason and spirit of criminal justice, in respect to the relative guilt of human actions, even as it is derived from the Jewish dispensation, under which cities of refuge were provided, to the end “that every one that killeth any person unawares may flee thither, and be secure from the avenger of blood.”

2. As to the language of the statute, according to its proper or grammatical signification. The section of the statute under consideration is in the following words, to wit:

“ That if any person shall purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done; kill another; every such person shall be deemed guilty of murder in the first degree, and, upon conviction thereof, shall suffer death.”

This section is composed of one compound sentence, and is descriptive of three classes of homicide, to wit: first, that which is committed of deliberate and premeditated malice; second, that committed while in the perpetration, or attempt to perpetrate a rape, arson, robbery, or burglary; and third, that committed by administering poison, or causing the same to be done. The first clause, or distinct subdivision of the sentence, according to the punctuation, consists of the words, “ That if any person shall purposely.” And the question is, whether this preceding phrase 11 purposely,” which qualifies the word “ hill,” in the latter part of the sentence, applies to each of the three several classes of homicide mentioned in the intermediate clauses of the sentence, or whether it is limited to the first class. The word “purposely” is, by the authoritative punctuation of the statute, in a clause of the sentence distinct from that which makes “ deliberate and premeditated malice” a distinguishing feature in the first class of homicide mentioned; and it is the adverb qualifying the verb “ hill,” which constitutes the predicate of the subject of each of the several intervening clauses of the sentence. Now, it appears to be a rule of syntax that, where an antecedent adverb in the first clause qualifies a verb in the closing part of the sentence, forming the predicate of the subject of several distinct intermediate clauses of the sentence, such qualification of the predicate applies to the subject of each of such intervening clauses, unless some word or words are used, expressly limiting it to a part.

It is said, that there is an ambiguity in this section of the statute, in its not being manifest, whether the word either, which is implied from the use of the disjunctive connective “ or” preceding the words, “ in the perpetration,” etc., occurs before the phrase “purposely,” in the first clause, or before the words, “ of deliberate and premeditated malice,” in the second clause of the sentence. It is very true, that the use of either of the conjunctions or, nor, etc., frequently allows an ellipsis, whereby the correlative either, or neither, is left to be understood by implication. To have expressed fully, in words, the meaning of the sentence under consideration, the word either should have been used, either before the word “purposely,” or before the words “ of deliberate and premeditated malice;” if the former, the sentence would read, “ That if any person shall, either purposely and of deliberate and premeditated malice, or in the perpetration,” etc.; if the latter, it would have read, “ That if any person shall purposely, and either of deliberate and premeditated malice, or in the perpetration,” etc. That the word either is to be understood, by implication, in one or the other of these two places, in the structure of the sentence, is undeniable. In which of the places do the rules of grammatical construction place the ellipsis? If before the word “purposely,” the structure of the sentence, at least as to punctuation, would have to be changed, and the word purposely ” placed in the same clause with the words, “ of deliberate and premeditated malice.” But taking this section of the statute as it is, carefully, and with manifest design, subdivided into clauses, or distinct members of the sentence, by the legislative authority, and another manifest rule of grammatical construction would seem to settle the controversy. "Where the word either as an antecedent, is left to implication, by the disjunctive conjunction or, used to connect two distinct members of the sentence, the ellipsis is necessarily in the next preceding member of the sentence, which the conjunction connects, and which, in this instance, consists of the words, “ and of deliberate and premeditated malice.” Taking the language of the statute, therefore, according to its proper and grammatical signification, the word purposely, which is expressive of the intention of the party, and qualifies the verb, which is the predicate of the several clauses preceding it, not being expressly restrained or limited in its operation, applies to each of the three classes of homicide specified in the sentence. The words of the section, therefore, taken in their proper signification, and according to their grammatical construction, make a purpose to hill an essential ingredient in each of the several classes of the crime of murder in the first degree, as defined by the statute.

According to this interpretation of the language of the statute, the first kind of homicide defined, consists of an intentional hilling of deliberate and premeditated malice. But the disjunctive conjunction inserted between the clause making malice an element of the first class, and the two succeeding clauses defining the other classes of murder in the first degree, undeniably excludes the idea of malice being made essential to constitute the crime in either of them. In the second class of homicide defined, which occurs in the perpetration, or attempt to perpetrate, any rape, arson, robbery, or burglary, the enormity and turpitude of the criminal act, in which the offender is engaged at the time, supplies the place of the deliberate and premeditated malice made an element in the first class.. And in the third class defined, being homicide effected by administering poison, or causing the same to be done, the danger and atrocity of the means and manner of the killing supplies the place of the deliberate and premeditated malice made a distinguishing feature of the first class. Indeed, intentional killing, by means of administering poison, in-eludes, and per se imports, malice; so that it would be mere tautology to mention malice as a distinguishing feature in the definition of it. And the atrocity of this kind of homicide precludes the necessity of the inquiry whether the malice which it imports is deliberate or not. It must be conceded, that the disjunctive connectives inserted in the clauses descriptive of the several classes of homicide defined, do exclude malice as a distinctive ingredient of the offense committed, either in the perpetration of one of the felonies mentioned, or by administering poison. If, however, purpose to kill had been dispensed with in the statutory description of these two last defined classes of murder in the first degree, malice could not have been properly omitted in the definition. Eor, inasmuch as neither the word unlawful, willful, felonious, or any other equivalent phrase, importing a wrongful or criminal quality in the act, is used in this section of the statute, if both the purpose to kill, as well as the malice, had been omitted, and dispensed with as distinctive elements of the crime, the express terms of the statute would have imposed the punishment of death for a mere involuntary homicide by misadventure, and which, in the ease of killing by administering poison, might be wholly innocent.

If a man should kill his dearest friend by administering to him, when sick, a deadly poison, under the mistaken supposition that it was a curative medicine, necessary for his restoration, such man, whether the mistake be entirely his own, or that of the druggist who prepared it, or of the physician who prescribed it, could, upon no rational idea of justice, be punished for the crime of mui’der; yet the unqualified language of our statute would require it, if a purpose to kill be not made an essential element of the crime. Suppose a quack should administer a poisonous drug, with no intent to kill or injure, but under the honest but mistaken idea of curing his patient, and that through the magnitude of the dose, or a misconception as to the quality of the drug, death ensues; this would be a clear case of killing by administering poison, and would fill tbe whole statutory description of the crime ,of murder by administering poison, if a purpose to kill be not made essential; and yet this would not be a case of murder, but simply of manslaughter, even at common law. If a burglar, in passing through a house he had entered in the night season, should accidentally and unintentionally upset an article of furniture, or cause something to fall upon the cradle of a sleeping infant, and thereby kill the child, he might be subjected to the highest penalties of the statute, both for manslaughter and for burglary; but to inflict upon him the extreme punishment of death, would evince a disregard of that fundamental distinction in respect to the relative guilt of human actions, dependent on the concurrence or non-concurrence of the will with the act, as well as a disregard of that humane principle of criminal justice by which punishment is graduated in proportion to the atrocity of crime. Again, suppose a person should, from a mischievous disposition, set fire to and burn down, in the night season, some uninhabited cabin, or vacant stable, which had, in some way, become an annoyance to him, and in so doing, should unintentionally kill some benighted wanderer, who had secretly sheltered himself in such building for the night; or, suppose that some unfortunate woman, whose happiness and peace of family had been destroyed by the proximity of a distillery, which had become the ruinous haunt of her husband, or her sons, should, in the night season, when no human being was supposed to be in the building, set fire to it, and, by so doing, unintentionally kill a sleeping inebriate, who, having become quiescent, had, unobserved, been shut up in the house for the night; in neither case, could the extreme punishment prescribed for the crime of the greatest atrocity, be inflicted consistently with the reason and true intent of our statute; yet it would be unavoidable, if the statute be so interpreted as to dispense with purpose to hill as an element of the crime in any case of murder in the first degree.

Light may be thrown upon the interpretation of our statute by the statutes and adjudications in some of the other states, although they have deviated less from the common law as to the distinctive elements in the crime of murder. The statute of Pennsylvania, on the subject of murder, is in the following language, to wit:

“ All murder which shall be perpetrated by means of poison, or lying in wait, or by any other kind of willful, deliberate and premeditated Jailing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder in the first degree ; and all other kinds of murder shall be deemed murder of the second degree.” The punishment prescribed by this statute for murder in the first degree, is death; and that for murder in the second degree, is imprisonment.

The statutes of Virginia, Connecticut, Tennessee, and a number of the other states, do not differ substantially, or very materially, from that of Pennsylvania, above recited.

It may be remarked, that it has been uniformly adjudged, that the term murder, as used in these statutes, is to be taken in its technical meaning at common law. And the clause providing that, “ all other kinds of murder shall be deemed murder in the second degree,” has been interpreted to mean all murder by the common law, not comprehended in the preceding descriptive definition of murder in the first degree. Let the difference between the phraseology of the statute of Pennsylvania and that of Ohio, be also observed and borne in mind. The language of the former is: “ All murder, which shall be perpetrated by means of poison,” etc., “ or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, shall,” etc. The term murder is here used in its legal signification, importing homicide with malice aforethought, either express or implied. So that, the homicide by means of poison, here mentioned, is a killing with malice aforethought. And so, also, in regard to the homicide committed in the perpetration of either of the felonies mentioned; that is, “ all murder, or, in other words, all homicide with malice aforethought, committed in the perpetration, or attempt to perpetrate, any arson,” etc., shall be murder in the first degree. Essentially different is the phraseology of the statute of Ohio. The technical phrase murder is not introduced or used here, in defining or describing the different classes and degrees of the crime. The language is: 11 If any person shall purposely,” (in the manner specified in the three several classes mentioned in the first section,) “ kill another, every such person shall be deemed guilty,” etc. Now, the legal phrase murder not being used in our statute, in the description of the elements of the crime, the simple killing while in the perpetration or attempt to perpetrate one of the felonies mentioned, or by administering poison, would not import a malicious killing, or have any feature whatever to distinguish it from an involuntary homicide, or killing by misadventure, unless, the purpose to kill applies, enters into, and constitutes an element of it.

In a recent decision of the supreme court of Pennsylvania, it was held, that a premeditated intention to destroy life is indispensable in order to constitute murder in the first degree, under the statute of that state. Johnson v. The Commonwealth, 24 Penn. St. Rep. 387. Now, the term murder, used in the Pennsylvania statute, although it imports a homicide with malice aforethought, does not, per se, import an intentional killing. And if premeditated intention to destroy life is essential to murder in the first degree, under the Pennsylvania statute, with what reason could it be dispensed with in any reasonable interpretation of the statute of Ohio ?

It appears that, in the case of Commonwealth v. Keeper of Prison, 2 Ashm. Rep. 22, where a poisonous drug was administered to a pregnant woman with intent to cause the death of the child of which she was pregnant, and the woman died in consequence, it was held murder in the second degree, under the statute of that state. While this would be clearly reconcilable to the Pennsylvania statute, there can be no murder in the second degree, under our statute, without an intention or purpose to kill.

It was adjudged by the supreme court of Tennessee, under a statute not differing substantially from that of Pennsylvania, above recited, that “the characteristic quality of murder in the first degree, and that which distinguishes it from murder in the second degree, is the existence of a settled purpose and fixed design on the part of the assailant, that the act of assault should result in the death of the party assailed; that death being the end aimed at, the object sought for, and wished.” Swan v. The State, 4 Humph. Rep. 136, 139. Also, in Dale v. The State, 10 Yerg. Rep. 551, it was said, that to constitute murder in the first degree, the killing must be willful, that is, of purpose, with the intent that the act by which the life of a party is taken, should have that effect. Again, in Commonwealth v. Jones, 1 Leigh Rep. 611, it was held by the court of appeals, in Virginia, that, to convict of murder in the first degree, proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the party accused, sought.

It is said, that the result of this interpretation would be to exempt from capital punishment, the offender who kills a person by firing a gun into a promiscuous crowd; as well as the party, who, deliberately and maliciously intending to kill one person, accidentally and unintentionally kills another. The questions, in these instances, are not necessarily involved in this case; and it will be time enough to decide how far they may be affected by the time interpretation of the statute, when they shall directly arise. But, as a matter of argument, they may have a j>assing notice. As to the first instance, the question cannot be affected by the principle of this decision. When the killing is the result of firing a gun into a promiscuous crowd, the purpose or intent is a matter of proof; as a rule of evidence, a party may be presumed to intend the natural consequence of his own act; and if, in shooting into a crowd, he deliberately and maliciously intend to kill any person he may happen to hit, without having any particular person in view, his intention to kill being general, and directed against each person in the crowd, he may be fairly taken to have actually compassed the death of the person he has killed. This, however, is a matter arising upon the evidence, and the principle of this decision touches simply the essential ingredients constituting the crime, and not the legal presumptions or rules of evidence arising upon the proof.

As to the question involved in the other instance mentioned, it may be remarked, that we must look to the statute of this state, and not to the common law of England, in order to ascertain the essential elements of the several kinds of criminal homicide in Ohio. It is a rule of the common law, it is true, that whex-e the offender attempts, with malice aforethought, to kill one person, and failing in that, accidentally and xxnintentionally kills another, he is guilty of murder, and liable to the penalty for that crime. This follows as a logical result from the law of homicide in England, 'where thex’e is but one degree of crime in murder, and intention to kill is not essential to constitute the offense, and the malice aforethought constituting the distinguishing element of the crime, does not necessarily consist in ill will towards the particular person injured, but a genex'al depravity of disposition, or heart, regardless of social duty, and fatally bent on mischief. But we are not to lose sight of the distinction between statutoxy murder in Ohio, and murder at common law in England. The specific provisions of the statute have created the distinction as to the essential elements of the crime here.

It is said, that the punishment for manslaughter would not be sufficiently severe for an involuntary homicide, committed in the perpetration of either of the felonies mentioned. Superadded to the punishment, to the utxnost extent of the law for manslaughter, the offender would be liable to the utmost penalty for the perpetration or attempt to perpetrate the felony in which he was engaged at the time. A man may commit more than a single crime in one transaction, where the offenses are distinguishable from each other; and, in such instance, a conviction for one will not bar proceedings against him for the other. State v. Fife, 1 Bail. Rep. 1; State v. Dawson, 2 Tyler Rep. 887; Bish. Cr. Law, sec. 530, 531.

The question, whether the rule of the common law, that where a person attempting maliciously and intentionally to kill one person, accidentally and unintentionally kills another, it is murder, has any application to homicide under the statutory description of it in this country, appears to have been fully investigated, and directly determined by the supreme court of Tennessee, on mature deliberation, in the case of Bratton v. The State, 10 Humph. Rep. 103. In this case, the court, in an able opinion, by Mr. Justice McKinney, said:

“ If the universal principle of construction is to be regarded, that every word, in a statute is to have meaning and effect given to it, if practicable, it results of necessity, by force of the terms employed in the definition of the crime, that to constitute murder in the first degree, it must be established that there existed in the mind of the agent, at the time of the act, a specified intention to take the life of the particular person slain......If, then, by misadventure or other cause, a blow, directed at a particular person, and designed to take his life, take effect upon, and cause the death of a third person, against whom no injury was meditated, can it be said, that the will concurred with the act, which resulted in the accidental death of such third person; or that there existed a specific intention to take his life ? A grosser absurdity cannot be conceived. The hypothesis that the killing was undesigned, concedes that the will did not concur with the act; that in point of fact no such specific intention existed, no such result was contemplated or designed. And upon what principle is it that this would be murder at common law ? Simply upon the principle of implied or imputed malice or intention. In such case, all the essential elements of murder at common law occur.....But we have seen that murder in the first degree, as constituted by our statute, depends upon the existence of a specific intention to take the life of a person slain, and that the existence of such an intention, as a matter of fact, must be satisfactorily established. Hence it is clear to a demonstration, that all legal implication or imputation of such an intention, is excluded in reference to this particular species of murder.”

3. This interpretation derives strength from the language of prior legislation on the same subject. Our first legislation on the subject was under the territorial organization, in 1788, in which the common law description of criminal homicide was strictly followed,-and no distinction made "by way of different degrees in murder. And the same provision, substantially, was re-enacted in 1804, after the organization of the state government. In 1815; the common law description of murder was repealed, and the crime specifically defined, and divided into two degrees. 2 Chase’s Ohio Stat. 857. In this statute, the descriptions of murder in the second degree and manslaughter do not differ substantially from that of our present statute; but the definition of murder in the first degree was in the following language: “ If any person shall purposely, of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery, or burglary, kill another, every such person, his or her aiders, abettors, counsellors and procurers shall be deemed guilty of murder in the first degree, and upon conviction thereof shall suffer death.” This was re-enacted in 1821, and again in 1824, and again in 1881; and in 1835 it was repealed, and the statute now in force passed. The change in the description of murder in the first degree, made by the enactment of 1835, on that of 1831, was merely verbal, designed to make the definition more specific, and did not alter the substantial ingredients constituting the offense. Dnder the statute of 1815, and as it existed until 1835, murder in the first degree, by means of poison, was manifestly included in the first class of the offense mentioned, consisting in killing purposely and of deliberate and premeditated malice. But, inasmuch as a killing purposely, by means of administering poison, did, within and of itself, import and include deliberate and premeditated malice, it was deemed proper to separate that class of homicide in the definition, making it to consist in killing purposely by the administration of poison, and thus relieve the state, in a prosecution for the offense, from the necessity or trouble of any proof on the subject of the malice. The only other change made by the statute of 1835, in the description of this olfense, was the addition of the word “ and ” at the commencement of the second clause of the section. This was doubtless inserted for the sake of perspicuity, as the additional clause relating to homicide by poison' made the sentence more complex. And it is observable, that not only in the enactment of 1815, but also in every succeeding enactment, the word “purposely ” is to be found in a separate clause of the sentence distinct from that which distinguishes homicide of deliberate and premeditated malice from the other kinds mentioned. And in the act of 1835, by connecting the clause containing the word “purposely” with the second clause, by the word “ and,” and with each of the succeeding clauses descriptive of the crime, by the connective “ or,” the qualification of the word “ kill,” in its application to the subject of each of these several clauses, is made even more perspicuous than it was in the prior enactments. And inasmuch as murder in the first degree, by the administration of poison, was included in the first class of homicide defined in the former statute, which required both purpose and deliberate and premeditated malice as ingredients, it would be absurd to suppose that the statute of 1835 had made homicide, by administering poison, murder in the first degree, without either a purpose to kill or malice. Eor, although homicide by administering poison, with a purpose to kill, does per se import malice, yet homicide without such purpose, does not necessarily import malice, and may be wholly devoid of the turpitude of crime.

4. This interpretation is amply confirmed by considering the section under consideration, in its connection with other provisions of our criminal statutes.

It is said, that a statute is often its own best expositor ; and that, in giving a construction to a statute, the whole act and all its parts are to be considered, as well as all other statutes in pari materia. And if any section be intrícate, obscure, or doubtful, the proper mode of discovering its true meaning is to compare it with other sections, and finding out the sense of one clause by the words and obvious intent of another. Smith’s Stat. Constr. 649. This, observes Coke, is the most natural and genuine method of expounding a statute (Co. Litt. 381); it is, therefore a true principle, that an antecedent provision of a statute, of which the meaning is doubtful, may be explained by reference to a subsequent section.

Now the second section of this statute, being the next following that under consideration, defines murder in the second degree, and, in language explicit and unequivocal, makes both intention to kill, and malice, essential to constitute murder in the second degree, in any ease. It would, therefore, lead to a gross absurdity, to interpret the language of the first section as making an unintentional homicide, and that, too, of which deliberate and premeditated malice was not an ingredient, constitute murder in the first degree, for which the punishment of death was prescribed.

The third section of the statute, in language equally explicit, and not admitting of an exception, makes an unlawful killing, without malice and unintentionally, while the slayer is in the 'commission of some unlawful act, the crime of manslaughter. Now, I inquire, how an unintentional killing, without malice, while the slayer is engaged in the perpetration, or attempt to perpetrate a rape, arson, robbery or burglary, is to be distinguished from this description of manslaughter? It cannot be pretended, that malice is made an essential ingredient in this second class of murder in the first degree, defined in the first section of the statute; so that, if purpose or intent to hill be not an essential ingredient, it falls strictly and clearly within the definition of one class of manslaughter. The same may be said of homicide by administering poison, as defined in the first section. Malice is not made essential in order to constitute the crime; so that, if purpose or intent to kill may be dispensed with, how will an unintentional killing by administering poison, through, gross carelessness, or with an intent simply to do some personal injury, be distinguished from the express statutory description of manslaughter ? If purpose to hill be not an essential ingredient in these two last mentioned classes of murder in the first degree, under the first section, the section defining manslaughter is grossly deficient in not having the words, “ except in the cases provided for in the first section of this act,” added to the description of manslaughter above mentioned; and consequently, our statutory description of the several kinds of criminal homicide, contains the monstrous blunder of having confounded in undistinguishable confusion two classes of murder in the first degree, with an extensive class of manslaughter. But the correct interpretation of the first section of the statute avoids all this confusion and absurdity, and is consistent with the humane spirit and reasonable intent of the statute.

Besides the provisions for the punishment of crimes actually perpetrated, the statute has also provided for the punishment of the attempt to perpetrate many of the high crimes; such as the assault with intent to commit a murder, rape, or robbery; and shooting at, stabbing, etc., with intent to kill, or maim, etc. And corresponding with the provision for the punishment of the crime of homicide by administering poison, is the provision of the thirty-fourth section of the act for the attempt to commit the crime, the descriptive part of which is as follows: “ If any person-shall administer poison to another, with intent to destroy or take the life of the person to whom the same shall be administei’ed, or to do him an injury; or if poison shall be prepared with the intent aforesaid, and the same shall be taken by any person, whereby an injury to such person may be done,” etc. The offense here provided for is the attempt to perpetrate an act which, had it been consummated and resulted in the death of the person against whom it was attempted, would have been either murder or manslaughter. Had it been with the intent to hill, the consummation of the act would have been murder in the first degree; but had the intent: been, not to kill, but to do simply a bodily injury, and the act had resulted in the death of the party injured, the offense would "have constituted manslaughter under our statute. But why is the intent wTith which the attempt is made, by the express terms of the statute, constituted an essential ingredient in this offense ? If the purpose or intent with which the poison is administered be not an essential element in the crime of murder by administering poison, why make the intent an essential part of the crime of attempting its perpetration ?

Again, that intent to lull constitutes an element in. the crime of murder by administering poison, is apparent from the express language of the thirty-seventh section of the same statute, which prescribes the county in which the accused shall be tried, in case the poison be administered in one county, and the person so poisoned die in another county or state. The language of this section is: “ If any person shall give any mortal blow, or administer any poison to another, in any county within this state, with intent to kill, and the party so stricken or poisoned thereof shall afterward die in any other county or state,” etc. If unintentional killing by administering poison constituted murder in the first degree, can any sensible reason be assigned for its omission, in this necessary and important provision, as to the place of the trial ? And if intent to kill be not an ingredient in the crime of killing by poison, why couple it, in express terms, with that crime, in this provision ?

Finally, if purpose to kill be not essential to the crime of murder in the first degree by administering poison, any homicide, caused by administering poison to a pregnant woman to produce abortion, would most clearly fall within the statutory description of capital offenses, and subject the offender to the punishment of death. The necessary consequence of such an interpretation of the statute, for the punishment of murder in the first degree, which was enacted in 1835, would be the repeal of the section of the statute providing imprisonment in the penitentiary for the offense of causing the death of a woman pregnant with a quick child, by administering poison, with intent thereby to produce an abortion, and destroy such unborn child. Eor the last mentioned enactment, which was passed in 1834, would be wholly inconsistent with the subsequent act, passed in 1835, making the same offense murder in the first degree, and subjecting the offender to the punishment of death.

It appears, therefore, from a full and careful examina-, tion of the subject in all its bearings, that, by the true meaning and legal intent-of the first section of ofiRstatute relating to criminal homicide, furyose to MI, in made an eásenSal ingredient in murder in the first degree bv admfmsfiermgpm And this is the conclusion of a majority of the court, on the most mature consideration. The court of common pleas, therefore, erred in the charge to the jury in this respect.

The court further instructed the jury that, if the accused administered the poison to Nancy Holly of which she died, with a knowledge of its poisonous or deadly quality, and with intent not to kill her, but to produce an abortion, or destroy a child of which she was pregnant at the time, this would be sufficient to constitute murder in the first degree. "We are unanimous in the opinion that there was error in this charge.

The offense of killing a woman pregnant of a quick child, by administering to her. medicine, with intent to produce abortion and thereby destroy the unborn child, is specially provided for by the statute relating to that subject, passed in 1834. It is true, the killing a person unintentionally and without malice, while the slayer is engaged in any unlawful act, is, by the statute for the punishment of crimes, enacted in 1835, made manslaughter; and it is difficult, if not impossible, to distinguish the offense, provided for by the statute of 1884, from that defined in the statute of 1835, by any of the ingredients essential to the crime. The offense will answer the descriptive definition of .either statute, and the only actual distinction made is in the penalty, which, under the act of 1834, is imprisonment in the penitentiary from one to seven years, and that, under the act of 1835, from one to ten years. As to the elements of the crime, and also the punishment as far as the imprisonment of from one to seven years goes, the two statutes, as to this offense, are identical; the only discrepancy consisting in the discretion given by the last statute, to make the imprisonment three years longer than that authorized by the first. The act of 1835 contains no express repeal of the act of 1834. And as repeals by implication are not favored, a subsequent affirmative statute do.es not repeal a prior statute unless there be conflict between the two, which is direct and irreconcilable upon any recognized rule of statutory construction. Wood v. United States, 16 Pet. Rep. 342, 362; Rex v. Paine, 1 East P. C. 5; Bish. Cr. Law, sec. 92. There are instances where statutes, enacted at different times, and not conflicting in any essential matter, are allowed to stand as concurrent provisions. But it appears to be well settled, that a statute, general in its terms and without negative words, will not he construed to repeal, by implication, the particular provisions of a former one, which are special in their application to a particular case, or class of cases, unless the repugnancy be so glaring and irreconcilable as to indicate the legislative intention to repeal. Dwarr. on Stat. 532; 6 Rep. 196; Sedg. on Stat. Constr. 123. The author last cited, says: “ The reason and philosophy of the rule are, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute, in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give tbe latter act such a construction, in order that its words shall have any meaning at all.” So it is said, that inasmuch as two acts seemingly repugnant must, if possible, be so construed that the latter may not operate as a repeal of the former by implication, a subsequent statute which is general, does not abrogate a former statute which is particular and special in its application. 12 Ill. Rep. 341.

The statute of 1834, in question, makes the unlawful act the gist of the offense, and the consequential death simply a descriptive circumstance; while the act of 1835 makes the killing the gist of the crime, and the unlawful means and object simply distinctive matters of description. This, however, does not seem to create any actual distinction between the two statutes, as to the essential elements of the crime. And the question, whether evidence proving that the accused had administered a poisonous drug to a woman pregnant with a quick child, with intent to produce thereby an abortion, of which the woman died, would support an indictment, under the statute, for manslaughter, is a question not necessarily involved in this case, and one upon which we deem it proper to express no opinion at this time. But we are clear in our conclusion, that the statutory provision relating to manslaughter, enacted in 1835, did not repeal the above mentioned statute of 1834.

It was not charged in the indictment, in this case, that the crime consisted in killing the child of which Nancy Holly was pregnant. And had it been so chai’ged, it could not have amounted to the crime of murder; for, under our statute, neither degree of criminal homicide can be predicated upon the killing of an unborn child.

And again, after stating as a rule of law, that to constitute murder in the first degree, by means of administering poison, it was not essential to prove an intent to take life; and also, after stating the facts requisite, under such holding, in order to justify a conviction for murder in the 'first degree, the court further charged the jury as follows: “If these facts are proven, the defendant is guilty of murder in the first degree, and the jury cannot find him guilty of any less crime.” And in the conclusion of the charge, the court added: “If you find the defendant not guilty, you will simply so say in your verdict. If you find him guilty, the statute expressly requires you to specify in your verdict of what crime he is guilty. If, therefore, you find the defendant guilty as he stands charged in the indictment, you will in your verdict say, ‘ We, the jury, find the defendant, Edward Bobbins, guilty of murder in the first degree, as he stands charged in the indictmentIt will not he sufficient to say only, that you find him guilty, or that you find him guilty of murder; for, in certain cases, murder may be of different degrees.”

Now, this indictment contained several counts charging the accused with killing Nancy Holly by means of poison, without the averment of a purpose or intent to kill, which would have been good as counts for manslaughter. • And it may be remarked that an indictment for murder in the first degree necessarily includes what constitutes the lower degrees of criminal homicide, upon the principle that the whole necessarily comprehends its various parts. So that either a verdict of guilty of murder in the second degree, in manner and form as charged in the indictment, or a verdict of guilty of manslaughter, in manner and form as charged in the indictment, would have been in due form and sufficient, and might have been lawfully sustained as a good verdict under this indictment. A verdict for either murder in the second degree or manslaughter, is always good and may .be sustained under an indictment for murder in the first degreé; and the addition of the words in the verdict, “ as the defendant stands charged in the indictment,” do not amount to any thing at all, inasmuch’ as they would be as applicable to one as to another of the different degrees of criminal homicide for which a verdict may be rendered under the indictment. Dick v. The State, 3 Ohio St. Rep. 89. It is, therefore, specially provided in the statute for the punishment of crimes, uthat in all trials for murder, the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or manslaughter; and if such person be convicted by confession in open court, the court shall proceed by examination of witnesses, in open court, to determine the degree of the crime,” etc. Now, the reason for requiring the jury to ascertain, in their verdict, the degree of the homicide is, that a verdict of “guilty as the defendant stands charged in the indictment,” does not ascertain the degree of the crime. The jury cannot render a verdict otherwise than as the defendant stands charged in the indictment. Rut on an indictment for murder in the first degree, a verdict that the defendant is guilty of either of the degrees of criminal homicide, as he stands charged in the indictment, would be good and sufficient. The jury is not expected to analyze the indictment, and determine which degree of the crime is technically charged therein. That is a matter for the determination of the court, in submitting the cause to the jury, and especially when rendering the judgment in the case on a verdict against the accused.

Now, in this case, the court charged the jury, that if they found the defendant guilty as he stands charged in the indictment, they must say that he is guilty of murder in the first degree, because, “ in certain cases murder may be of different degrees.” This, as a legal proposition, was erroneous. In all cases of criminal homicide, the crime is graduated, and may be one or the other of the three degrees; and if the jury find the accused guilty as he stands charged in the indictment, they must determine or ascertain, from the evidence before them, of which of the three degrees of the crime the defendant is guilty as he stands charged in the indictment. Rut the legal proposition laid down by the court to the jury left them no discretion whatever. They could not find the defendant guilty otherwise than as he stood charged in the indictment; and the court instructed them that if they found him guilty as he stood charged, they were bound to find him guilty of murder in the first degree; for the reason that in certain cases murder may be of different degrees. This was saying to the jury, in effect, that in this case, being a case of homicide by means of poison, the crime was not graduated, but must necessarily rise to the grade of murder in the first degree. This was, therefore, ascertaining the degree of the offense by a legal proposition determined by the court, instead of leaving it to the jury to ascertain the degree of the offense from the evidence given on the trial. Murder by means of poison, cannot be made an exception. The language of the statute is, “ that in all trials for murder,” the jury shall ascertain the degree of the crime. It is- undeniable that manslaughter may be committed by means of poison. And in the case of State v. Dowd, 69 Conn. Rep. 391, the supreme court of Connecticut, on full consideration, sustained a verdict for murder in the second degree, on an indictment for murder in the first degree by means of poison. If' this could be done under the peculiar phraseology of the statute of Connecticut, which is identical with that of Pennsylvania, above recited, there certainly could not be a question as to its regularity under the statute of Ohio.

The judgment of the court of common pleas is reversed, and the cause remanded for further proceedings.

Scott and Sutlikf, JJ., concurred.

J. R. Swan, J.,

dissenting.

The opinion of the majority of the court has been written out since the decision of this case was announced. Not having seen the opinion as written out, I may not apprehend its scope.

I dissent, however, if it holds that when one commits a rape with so much brutality as to cause the death of his victim, he may extenuate the murder and escape capital punishment, by showing that he intended only to gratify his lust; or that the killing was an unintentional incident resulting from the accomplishment of his main design.

, Killing another, in the perpetration of rape, arson, robbery, or burglary, is, I hold, murder in the first degree; and every evil intent and purpose in one engaged in the commission of these high crimes, is, in law, incontrovertibly implied. If, in such cases, the jury may inquire, and do find that there was no intent to kill, what is the offense if it be not murder in the first degree? Murder in the second degree requires a purpose to kill. Is it the mild offense of manslaughter?

In the case before us, the statutes relating to the administration of drugs to produce abortion, were proper to be considered. So, too, the facts necessary to- constitute a case of murder by the administration of poison at common law, would be necessary to make out a case under our statute.

Brinkerhoee, J., also dissented on substantially the same grounds.