Manslaughter.

HOMICIDE IN GENERAL.

Dying declarations; what essential to admissibility of -It is essential to the admissibility of a dying declaration as evidence, that it should be made to appear to the court, by the 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. (Robbins v. State, 8 Ohio St. 131.)

Substance of declaration sufficient. It is not error to allow a witness to state the substance of competent dying declarations, although he may not be able to give the precise words, and in leaving the credit of the narration and the weight of the evidence to the jury. (Montgomery v. State, 11 Ohio, 424.)

Previous statement, reference to in dying declaration.-On the trial of M. for manslaughter in killing H., the prosecutor proved that H., just before his death, and while in extremis, said that the statement he had just made, and also what he had sworn to a few days before, on the trial of a complaint against M. for an assault and battery growing out of the quarrel in which the deceased received the mortal injury, "was God's truth, and that the whole of the statement was true:" Held, that the deceased, by alluding to both statements at the time of the dying declaration, and by reaffirming them, made them as much his dying declarations as if he had then repeated them at length. (Montgomery v. State, 11 Ohio, 424.)

Prior contradictory declaration.-When dying declarations are proved in a case, a statement of the deceased, made at another time, neither part of a dying declaration nor of the res gestæ, is not admissible to impeach such declarations. (Wroe v. State, 20 Ohio St. 460.)

Opinion of deceased in a dying declaration.-The dying declaration of the deceased, that the act was done without any provocation on his part, is not incompetent as mere matter of opinion. (Wroe v. State, 20 Ohio St. 460.)

Constitutionality of dying declaration.-Evidence of dying declarations is 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. (Robbins v. State, 8 Ohio St. 131.)

Suicide, predisposition to.-Where, on the trial of an indictment

Manslaughter.

for murder, the prisoner, for the purpose of proving that the deceased came to her death by suicide, offered to show that six years previous to her death she was of a melancholy condition of mind, and predisposed to and threatened to commit suicide: Held, toat it was error in the court to reject the testimony, the remoteness of the period to which it referred going merely to its weight, and not to the competency. (Blackburn v. State, 23 Ohio St. 146.)

Self-defense; where the right exists.-Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable. ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger. (Marts v. State, 26 Ohio St. 162.)

Retreating to the wall.-Where a person in the lawful pursuit of his business, and without blame, is violently assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant if necessary to save his own life or prevent enormous bodily harm. (Erwin v. State, 29 Ohio St. 186.)

Repelling attack, what amount of force may be used.—A man may, in his defense, employ sufficient force to repel the assailant. The law does not measure nicely the degree of force which may be employed by a person attacked, and, if he use more force than is necessary, he is not responsible for it, unless it is so disproportioned to his apparent danger as to show wantonness, revenge, or a malicious purpose to injure the assailant. (Stewart v. State, 1 Ohio St. 66.)

Slayer seeking quarrel as pretext to kill his assailant.-When the slayer seeks and provokes an assault upon himself, in order to have a pretext for stabbing his adversary, and does, upon being assaulted, stab and kill him, such killing is not excusable homicide in self-defense. (Stewart v. State, 1 Ohio St. 66.)

Slayer making first assault.-While one who first makes a malicious assault upon another, continues in the conflict which ensues, he can not justify taking the life of his adversary, however necessary it may be to save his own, or to whatever extremity he may be reduced. (Stoffer v. State, 15 Ohio St. 47.)

Slayer withdrawing from assault made by him.-When one, who

Manslaughter.

first makes a malicious assault upon another, has succeeded in wholly withdrawing from the conflict, and, in good faith, has retreated to a place of apparent security, his right of self-defense is fully restored, and if pursued by his antagonist and there attacked in a manner to endanger life, he is justified in taking life if it becomes inevitable to save his own. (Stoffer v. State, 15 Ohio St. 47.)

Possession of weapon by slayer.-It is not error to charge the jury "to take into consideration the manner by which, and the purpose for which, the defendant had the possession of the weapon with which he committed the homicide." (Stewart v. State, 1 Ohio St. 66.)

Conduct of defendant.-In a trial for murder, it is competent for the defendant to prove how he was employed at the time he met with the person he is charged to have killed, and what was his conduct a short time before the affray, which resulted in the killing. (Stewart v. State, 19 Ohio, 302.)

Opinion of witness as to whether there was time for accused to escape, when deceased rushed on him.-It is competent for the defendant to ask a witness who had seen the transaction, whether, when the deceased rushed on the accused, there was time enough for him to escape, and get out of the way, before the deceased rushed on him, or not. (Stewart v. State, 19 Ohio, 302.)

Opinion of witness as to whether accused acted in self-defense.-In a criminal prosecution where the defendant seeks to justify, on the ground of self-defense, it is not competent to give in evidence the opinion of a witness as to the existence of danger to life, or of great bodily harm, or that such danger might have been reasonably apprehended by the defendant. (State v. Rhoads, 29 Ohio St. 171.)

Uncommunicated threats.—In a trial for murder it is competent for the defendant to prove that the person alleged to have been murdered, and others, had agreed to go to the house where the defendant boarded, for the purpose of quarreling with him, and that they had approached him with the intent at the time the affray commenced, which resulted in the homicide; and to prove the conversation of the parties, in relation to such agreement, though the defendant had not been informed of the intent of the parties in approaching him. (Stewart v. State, 19 Ohio, 302.)

Character of deceased as a dangerous person.—On the trial of an indictment for murder, the prisoner may, for the purpose of showing that the homicide was justifiable on the ground of self-defense,

Administering poison.

prove that the deceased was a person of violent, vicious, and dangerous character, and that that character was known to the prisoner at the time of the rencontre between them. (Marts v. State, 26 Ohio St. 162.)

Reputation of deceased as a dangerous person.-Evidence of the reputation of the deceased as being a vicious, violent, or dangerous person, can only be given after the introduction of testimony tending to show that such was in fact his character, and then only for the purpose of proving that the prisoner had notice of that character. The dangerous character of the deceased can not be proved by proof of his reputation, but notice of that character to the prisoner may be shown by proof of such reputation, in connection with proof that the prisoner had the means of knowing that reputation. (Marts v. State, 26 Ohio St. 162.)

Burden of proof in case of self-defense.-On the trial of an indictment for murder, the burden of proving that the homicide was excusable on the ground of self-defense, rests on the defendant, and must be established by a preponderance of the evidence. (Silvus v. State, 22 Ohio St. 90; Weaver v. State, 24 Ohio St. 584.)

SEC. 5. Administering poison. Whoever administers poison to a person, with intent to kill or injure such person, or mingles poison with food, drink, or medicine, with intent to kill or injure any human being, or willfully poisons any well, spring, cistern, or reservoir of water, shall be imprisoned in the penitentiary not more than fifteen, nor less than two years. (Sayler, 79, § 1.)

FORMS OF CHARGES.

ADMINISTERING POISON WITH INTENT TO KILL OR INJURE.

Unlawfully, knowingly, and purposely did administer to one M. M. a large quantity of a certain deadly poison called, to wit, two drachms of the said - with intent then and there and thereby, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder the said M. N. [or, with intent then and there and thereby to do him, the said M. N., an injury, to wit, then and there and thereby to cause him, the said M. N., to become greatly sick and distempered in his body].

Administering medicine when intoxicated, etc.

MIXING POISON WITH MEDICINE, WITH INTENT TO KILL OR INJURE.

Unlawfully, maliciously, and purposely did mix a large quantity of a certain deadly poison called white arsenic with a certain quantity of medicine called wine, to wit, one pint of wine, with intent thereby to destroy and take the life of one M. N., and him, the said M. N., to kill and murder [or, to do one M. N., an injury to his body, as the case may be], which said wine was then and there about to be administered to the said M. N., and he, the said E. F., then and there well knowing that said wine was about to be administered to the said M. N., and that said white arsenic was a deadly poison.

SEC. 6. Administering medicine when intoxicated. Whoever, while in a state of intoxication, prescribes or administers any poison, drug, or medicine to another, which endangers the life of such other person, shall be fined not exceeding one hundred dollars, and imprisoned not more than twenty days. (S. & C. 440, § 3.)

FORM OF CHARGE.

Being then and there a physician, and being then and there duly employed as such physician to prescribe and administer medicine and other remedies to one M. N., a sick person then and there being, then and there unlawfully did prescribe a certain poison, drug, and medicine to the said M. N. (the more particular name and description of which said poison, drug, and medicine is to the jurors aforesaid unknown), while he, the said E. F., was then and there in a state of intoxication, which said prescription of poison, drug, and medicine, by the said E. F., then and there did greatly endanger the life of the said M. N.

SEC. 7. Administering secret medicine. Whoever prescribes any drug or medicine to another, the true nature and composition of which he does not, if inquired of, truly make known, but avows the same a secret medicine or composition, and thereby endangers the life of such other person, shall be fined not exceeding one hundred dollars, and imprisoned not more than twenty days. (S. & C. 440.)