Hauk v. State

46 N.E. 127, 148 Ind. 238, 1897 Ind. LEXIS 201

• Court: Indiana Supreme Court
• Decided: February 16, 1897
• Docket: No. 18,054
• Status: Published

Opinions

Jordan, C. J.

Appellant and one William E. Stout were jointly indicted by the grand jury of Montgomery county for the crime of producing an abortion. The defendant Stout severed, and appellant was alone tried and convicted, and over his motion for a new trial he was sentenced in accordance with the verdict of the jury to pay a fine and be imprisoned in the State prison for a term of five years. The indictment contains three counts, but the court in its instructions confined the jury in their deliberations to the second count by instructing them that under the evidence there could be no conviction upon the first or third, and the verdict discloses that the jury found appellant guilty as charged in the second count of the indictment, hence all questions relating to the first and third counts may be considered as properly eliminated from the case.

Appellant in his motion for a new trial assigned one hundred and four reasons for setting aside the jury’s verdict, and his learned counsel in their brief seek to present numerous alleged erroneous rulings upon the part of the lower court. The prosecution is based upon section 1996, Burns’ R. S. 1894 (1923, R. S. 1881), which is as follows:

“Whoever prescribes or administers to any pregnant woman, or to any woman whom he supposes to be pregnant, any drug, medicine, or substance whatever, with intent thereby to procure the miscarriage of such woman, or, with like intent, uses any instrument or means whatever, unless such miscarriage is necessary to preserve her life, shall, if the woman miscarries or dies in consequence thereof, be fined not more than five hundred dollars nor less than fifty dollars, and imprisoned in the state prison not more than fourteen years nor less than three years.”

The second count of the indictment reads as follows:

“And the grand jurors aforesaid, on their oaths aforesaid do further present that one William R. Stout and one Philip Hauk, on the 18th of January, 1896, at and in Fountain county, and State of Indiana, did then and there unlawfully, feloniously and willfully use a certain instrument and substance to the grand jurors unknown, in and upon the body and womb of Grace McOlamrock, who was then and there a pregnant woman, by then and there unlawfully, feloniously, and willfully introducing said instrument and substance into the body and womb of the said Grace McOlamrock with the intent then and there and thereby to procure the miscarriage of the said Grace McOlamrock, the said William R. Stout and the said Philip Hauk then and there well knowing that the said Grace McOlamrock was then and there a pregnant woman, and the said Grace McOlamrock in consequence thereof and by said use of said substance and instrument as aforesaid, did, on the 20th day of January, 1896, at and in the county of Montgomery and State of Indiana, miscarry; and the said Grace Mc-Olamrock in consequence thereof, and by said use of said instruments and substance, and in consequence of said miscarriage, did, on the 24th day of January, 1896, at and in the said county of Montgomery and State of Indiana, die; said miscarriage not being then and there necessary to preserve the life of the said Grace McClamrock.”

We will address, our inquiry to the several rulings or decisions of the court, upon which counsel for appellant insist upon a reversal, in the order in which they, have been presented in their brief. Appellant applied for a change of venue to another county, basing his application therefor upon the alleged grounds that he could not secure a fair and impartial trial in Montgomery county on account of the excitement, bias and prejudice existing therein against him and his cause of defense. He filed in support of his said application the affidavits of nine persons. The State resisted the change and in support of its resistance filed the affidavits of sixteen persons, all tending to disprove that any excitement, bias or prejudice existed in the county against the appellant that would prevent him from having a fair and impartial trial therein.

It was shown that some of the affiants whose affidavits were produced by the State, had but recently been in all parts of the county, and from their conversations and intercourse with its citizens had an opportunity to familiarize themselves relative to the facts about which they deposed. The court denied this application, and this, counsel for appellant urge, was an abuse of a sound judicial discretion. A change of venue in a criminal action, not punishable by death, by the provisions of section' 1840, Burns’ R. S. 1894 (1771, R. S. 1881), is left to the sound discretion of the trial court, and under a firmly settled rule, it must affirmatively appear upon appeal, that this discretion has been abused to the injury of the complaining party, in order to avail the latter in securing a reversal. Walker v. State, 136 Ind. 663; Reinhold v. State, 130 Ind. 467. Under the facts, we cannot affirm that such abuse of discretion upon the part of the lower court in overruling the motion for a change appears, and therefore there is no available error upon the court’s ruling in this respect.

Appellant sought to abate the action against him upon the grounds, alleged in his plea of abatement, that such a state of mind existed upon the part of each of the grand jurors who returned the indictment in the cause as incapacitated each of them from acting in the matter impartially and without prejudice to his substantial rights. As an excuse for not interposing this objection to the grand jurors by challenge before they were sworn as provided in section 1725, Burns’ R. S. 1891 (1656, R. S. 1881), it appears in substance, by the averments of the plea, that at the time the grand jury was in session, and at the tinfe they found and returned the indictment, appellant was confined in the county jail upon the charge, and had no opportunity to challenge said grand jury, and, by being incarcerated in jail, he was prevented from so doing; that he was wholly without means to obtain counsel, and was dependent on his friends for assistance, and, at the time the indictment was returned, he was ignorant of the law which permitted him to exercise the right to challenge the said jury or any member thereof. Section 1725 (1656), supra, gives to any person held to answer to the charge of a felony or misdemeanor the right to challenge, before the grand jury is sworn, any member thereof, for certain enumerated causes, the seventh cause mentioned being substantially that such a state of mind exists upon the part of the jurors relative to the accused that they cannot act in his case impartially and without prejudice. A demurrer upon the part of the State was sustained to the plea, and this, it is contended, was error. Challenges to the poll of a grand jury under this section by a person, held to answer a criminal charge must be made before the jury is sworn, and, in general, the objection is waived by a failure to assert it at the time prescribed by the statute. It is true that a party charged with a crime may at the time the grand jury is impaneled be placed under such circumstances as will excuse him from availing himself of his right to challenge or object to the jurors at that time, and for this reason be permitted thereafter to exercise it by way of a plea in abatement to the indictment. This is recognized by the decisions of this court. Mershon v. State, 51 Ind. 14; McClary v. State, 75 Ind. 260. The law, however, does not favor pleas in abatement, and no presumptions are indulged in their favor, but they are required to be certain, and must state every fact necessary to uphold their sufficiency., Mershon v. State, supra. Tested by this rule, and the insufficiency of the plea in controversy is apparent. It is not shown by any facts therein alleged that the defendant was in jail at the time the. grand jury was sworn or impaneled, but it is averred that he was in jail at the time the grand jury toas in session and when• they found and returned the indictment. It might be true that appellant was in custody at the time the jury was in session and when the indictment Avas returned, and still he might have been on bail or had counsel when the grand jury was sworn, and had ample opportunity at that time to assert his right of challenge: There are no facts averred in the plea showing affirmatively that appellant either attempted in any way to avail himself of his right of challenge, or that he was prevented by any circumstances from doing so at the proper time. The court therefore properly sustained the demurrer to. the plea in abatement.

The next insistence is that the count of the indictment upon which appellant was convicted discloses that the offense was committed in Fountain county, a.nd consequently the original jurisdiction thereof was, under the law, lodged in the Fountain Circuit Court, and upon this ground it is contended that appellant’s motion to quash this count should have been sustained. The learned counsel appearing in behalf of the State concede that, under the general rule, jurisdiction of the grand jury to return the indictment, and of the court to try the accused, is confined to the particular county wherein the crime was committed, but they claim that under the facts alleged and also as proven upon the trial, that jurisdiction over the alleged offense is controlled by section 1649, Burns’ R. S. 1894 (1580, R. S. 1881), which is as follows: “Where a public offense has been committed partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” In Archer v. State, 106 Ind. 426, this court, in construing this section of the criminal code, affirmed its constitutional validity, and held that under the facts in that case, which disclosed that a conspiracy to commit murder was formed in one county and the victim was seized and bound therein, and then taken into another county and killed, that jurisdiction of the offense was in either county. The court, per Elliott, J., there said: “Where the crime is composed of several elements, and a material one exists in.either one of two counties, the courts of either county may, under our statute, righfully take jurisdiction of the entire crime.”

The question was thoroughly considered in the Archer case, and many authorities cited in support of the holding. In the appeal of the State v. Pauley, 12 Wis. 599, it was held under a statute of that state providing that where a mortal wound is given in one county and in consequence thereof death ensues in another, that the offense may be prosecuted in either county. The court there affirmed that where the mortal blow is struck in one county and death results therefrom in another, that the proper court in either county, which first takes cognizance of the crime, will retain exclusive jurisdiction. In the course of the opinion, it was said: “The offense of manslaughter did not consist of the mere shooting and wounding of the deceased. On the contrary, the causing of his death was the most material element of the offense, and this did not take place there. The blow was struck in one county and its effect was produced in another.”

These authorities support the principle contended for by the State that within the contemplation of section 1649 (1580), supra, jurisdiction over a crime exists where any one or more of its substantive and material parts are committed. The inquiry then is, what are the essential elements which are required to exist or be present in order to constitute the offense defined by section 1996, Burns’ E. S. 1894 (1923, E. S. 1881), upon which this prosecution is based, and did any of these elements of material parts exist, or occur in Montgomery county, as shown by the averments in the indictment? It is evident, we think, that the crime charged against appellant does not alone consist of merely prescribing for, or administering the drug, medicine, or substance to either the pregnant, or supposed pregnant woman, with the intent to procure a miscarriage, or by using some instrument or other means with a like intent. Miscarriage or death of the woman must result as a consequence of the unlawful antecedent act or acts done or perpetrated by the accused with the intent to procure the abortion, or no crime under the statute is committed. Miscarriage or death, as the case may be, crowns the offense, and constitutes a material part thereof. The indictment charges that Grace McOlamrock, the woman upon whom the alleged crime was perpetrated, in consequence of the use of the instrument and substance, miscarried and died in Montgomery county. Either of these facts is a material part of the offense, which when combined with those averred to have occurred in Fountain county, constitute the crime in its entirety. It must follow, then, that, under the cases cited, the offense charged was partly committed in each of the counties mentioned, and in accordance with section 1649 (1580), supra, jurisdiction was lodged in the circuit court of either, and appellant; therefore, was rightfully indicted and tried in Montgomery county.

The indictment is not bad for duplicity for the reason insisted by counsel, that it alleges both miscarriage and death. Rhodes v. State, 128 Ind. 189, 25 Am. St. 429.

It is next urged that the court erred in not requiring the State to elect upon which count of the indictment it would ask for a conviction. But it appears the court withdrew all the counts except the second from the consideration of the jury, and submitted the question of appellant’s guilt to them upon that one alone; under such circumstances no available error could result from the action of the court in this respect. See Mills v. State, 52 Ind. 187.

A change of venue from the regular judge was obtained, and the latter being unable to secure some other judge to preside at the trial, appointed Hon. E. O. Snyder, who, as it appears, was a competent and disinterested attorney of the bar, to serve as a special judge in the case. The action of the court in appointing Judge Snyder is complained of by appellant. Under section 1839, Burns’ E. S. 1894 (1770, E. S. 1881), in all cases upon a change from the presiding judge, where, in the opinion of the court, it shall be difficult to procure a regular judge to try the cause, the right to appoint some disinterested attorney of the State in good standing, is wholly in the discretion of the court, and on appeal we will not interferewith such discretion unless it affirmatively appears that the lower court has abused it to the prejudice of the substantial rights of the complaining party. Kane v. State, 71 Ind. 559; Walter v. Walter, 117 Ind. 247. The record does not disclose any abuse upon the part of the regvular judge of the lower court in making the appointment in question.

Counsel contend that-the court erred in ordering a special venire for fifteen persons to serve as jurors, whose names were drawn as provided by section 1453, Burns’ R. S. 1894 (1388, E. g. 1881). This act of the court was authorized by this section of the statute, and it does not appear that appellant was thereby prejudiced in any of his rights. Wood v. State, 92 Ind. 269; Merrick v. State, 63 Ind. 327; Heyl v. State, 109 Ind. 589.

At the trial, what purports to be a written confession, made by appellant while in jail upon charge of the crime of which he was convicted, was offered in evidence by the State. This confession tended to implicate appellant and Doctor Stout, his co-defendant. Appellant objected to its introduction upon the ground, that it had béen made under the influence of fear produced by threats, and asked to have the jury excused, and be permitted to introduce evidence to show such alleged facts to the court. The court excused the jury and heard evidence upon the part of both appellant and State, upon which it held the confession competent evidence, and over appellant’s objections permitted it to be read to the jury. The document embracing the confession in dispute was dated at Covington, Indiana, January 27, 1896, being two days after appellant’s arrest on the charge in question, and was signed by him. Therein it was stated that accused “testified of his own free will and accord,” and that he was the father of the child of which Miss McClamrock had been prematurely delivered; that on January 11, 1896, he had arranged with Dr. Stout to produce an abortion on this woman, who at that time, as he stated, was about three months advanced in pregnancy. He further said that on the 18th of said month he took Miss McClamrock to Dr. Stout’s office in Covington, and that she and the latter went into an adjoining room, where the doctor operated upon her by passing some instrument into the womb. The confession in question then proceeds to detail what was said and done by appellant and Stout at the office after this operation had been performed; that the doctor gave the girl some morphine pills, and told her to take them, to allay the pain, and directed appellant that, in the event she was subjected to much pain, to call some physician he could trust, but never to divulge to any one that he, Stout, had produced the abbrtion. Appellant offered hiniiSelf as a witness in support of his objections, and- testified relative to his arrest upon the charge on January 25, and how he came to make the confession.

Much evidence wajs introduced before the court by both the State and defendant relative to the question under consideration. It appears from this evidence that at the time the appellant made the confession in controversy, he was confined in the county jail at Covington, upon the charge of which he was convicted; that his father and some other friends were present at the jail, together with the county coroner; that he was urged by his father and the others to “tell the truth about the whole matter and keep nothing back;” that, after some other talk of a similar character had taken place, the appellant slapped one of the parties upon the knee and said, 71 am going to tell it all.” Upon this being said, his father went to him and replied: “I am glad of this, my boy,” and then passed out into the jail corridor.

Appellant then orally stated what he claimed to be his and Ur. Stout’s connection in producing the miscarriage of Grace McClamrock, and at the suggestion of the coroner the statement was reduced to writing, and appellant, after reading it over, and making some changes, signed it. Witnesses testify that, after the accused had signed the paper, he appeared bright, and said: “I feel better than I ever did in my life.” There is evidence also tending to show that prior to the defendant’s confession, but after he had been arrested and committed to jail, that he had been informed that much excitement existed upon the part of the public, and he might expect a crowd to come to the jail any hour; that if he would tell what connection Stout had in procuring the abortion he would “be let off,” if not he would be sent to prison for twenty years, and that, his mother and sister would be implicated and arrested. There is also evidence tending to show that appellant, at the time he made the confession, was nervous and in grief over the death of Miss McClain-rock.

Appellant, as we have seen, challenged the compentency of the confession as evidence; upon the statutory ground that it was involuntarily made, under the influence of fear produced by threats, and, therefore, under section 1871, Burns’ E. S. 1894 (1802, E. S. 1881), was not admissible as evidence. There was nothing contained in this writtén confession disclosing that it was not voluntarily made; in fact, it contained the statement that it was made by the appellant of his “own free will and accord,” and it was attested by his own signature. It was prima facie competent. A confession by a person accused of a crime is presumed to be voluntarily made until the contrary is shown. The accused asserted that it was .involuntary, being made under fear produced by threats. Under the circumstances the burden of proving this fact rested upon him. Brown v. State, 71 Ind. 470; Rufer v. State, 25 Ohio St. 464; Wharton’s Crim. Ev. (9th ed.), sections 319 and 320; State v. Patterson, 73 Mo. 695; Commonwealth v. Culver, 126 Mass. 464; Peoples. Barker, 60 Mich. 277, 27 N. W. 539; State v. Hopkirk, 84 Mo. 278; State v. Meyers, 99 Mo. 107, 12 S. W. 516.

The real question presented for the court to determine from all the evidence adduced ’ was whether there had been any threats of such a nature that the defendant would be likely to state that which is false, from the fear of the threat. Gillett Crim. Law, section 857,.and authorities there cited; Wharton’s Crim. Ev., section 658. This fact appearing to the satisfaction of the court would exclude the confession as evidence, under the provisions of section 1871 (1802), supra.

We have carefully read the evidence given upon the point involved, and when considered as an entirety, as it must be, we are of the opinion that it does not appear that the appellant, in making the confession in question, did so involuntarily, through fear, resulting from threats. The court, therefore, did not err in overruling appellant’s objections, and the confession was properly admitted for the consideration of the jury. People v. McGloin, 91 N. Y. 241, and cases cited; State v. Patterson, supra. Again, upon another view of the question, the competency of this confession as evidence against appellant was made an issue before the trial court for its determination, and as there is 'evidence introduced which well, and fully supports its decision in holding the confession to be competent, we are not authorized to weigh the evidence given upon the point involved, or attempt to reconcile any conflict therein, but, under a well settled rule, we are required to sustain the finding thereon of the lower court. Keyes v. State, 122 Ind. 527; Smith v. State, 142 Ind. 288.

The court, on its own motion, gave twenty instructions to the jury, which, when considered as a whole, correctly advised them upon the law relative to the questions involved. Appellant criticises some of these charges, and we will specifically review those in dispute. The fourth instruction simply stated the facts essential to give the court of Montgomery county jurisdiction over the offense, and, in substance, is in harmony with our holding herein, upon that point. The sixth charge of the court is condemned by counsel for appellant upon the ground that it was not proper to inform the jury, as it did substantially, that, if the abortion was procured as alleged in the second count of the indictment, the offense was complete without regard to the fact that the death of Grace Mc-Clamrock resulted from the abortion or improper treatment of the attending physician in her sickness. If the miscarriage was produced by the unlawful antecedent act of the appellant, as charged, then, under the statute, the offense was complete; and the fact that her death may have resulted from the improper treatment of her physician or otherwise, would not operate to defeat his conviction. The indictment, it is true, charged both miscarriage and death as the consequences of the criminal acts alleged, but it was not incumbent upon the State to establish both facts in order to convict, as by the provisions of the statute either miscarriage or death as a result completes the offense.

The 8th, 9th, 10th, 11th, and 12th instructions relate to what constituted a reasonable doubt, and the influence such doubt exerted over the jury in their consideration of the evidence. Counsel especially complain of the 10th and 11th. These are as follows: “10. But this rule of law which clothes every person accused of a crime with the presumption of innocence, and imposes on the State the burden of establishing Ms guilt beyond a reasonable doubt, is not intended to aid any one who is in fact guilty of crime to escape, but is a humane provision of the law, intended so far as human agencies can, to guard against the danger of any innocent person being unjustly punished. And by reasonable doubt, is not meant a whim, or captious or speculative doubt. It is properly termed a reasonable doubt, as distinguished from an unreasonable or speculative doubt, and it must arise from all the evidence relating to some material fact or facts, charged in the indictment, and not spring from mere subsidiary evidence. Such doubt may also arise from the absence of evidence as to material matters.

“11. But the doctrine of reasonable doubt, as a rule, has no proper application to mere matters of subsidiary evidence, taken item by item, but is applicable always to the constituent elements of the crime charged, and to any fact or group of facts which may constitute the entire proof concerning any of the constituent or elementary facts necessary to constitute guilt. If from the whole evidence, or the want of evidence, any material fact essential to a conviction has not been established to your satisfaction beyond a reasonable doubt, as explained in these instructions, the defendant should be acquitted.”

The insistence is that both of these charges are wrong, for the reason that each deny that the doctrine of reasonable doubt has any application to mere matters of subsidiary evidence. The law in this respect, as declared in these instructions, is in accord with that asserted by this court in Wade v. State, 71 Ind. 535. ■ While the State in a criminal prosecution may rely upon mere subsidiary or subservient facts, yet, in a broader sense, it must, in order to convict, rely upon and establish beyond a reasonable doubt all the material facts which constitute the accused guilty of the crime charged. It is to such facts, and not to the mere items of subsidiary evidence which may aid in proving the essential facts, that the rule of reasonable doubt applies. These charges otherwise are in harmony with the decisions of this court, and we perceive no- available objections that can be urged against them. In fact, when these are considered together with the others given upon the question of reasonable donbt, we are of the opinion that the jnry was fully and correctly advised as to the law applicable to that, feature of the case.

Appellant presented and requested the court to give to the jury a series of . some twenty-seven instructions, all of which were refused, and upon this action of the court appellant predicates error. Some of these, under the facts in the case, are so palpably wrong that the court’s refusal to give them merits no special review. Others are sufficiently embraced in those given by the court, and were properly refused upon this ground. By instruction three, of those requested, the court was asked to inform the jury that there was no evidence as to what transpired at the office of Dr. Stout except the testimony of the latter, which it declares disproved that any criminal action was there' performed, and therefore the jury should acquit the defendant. Appellant’s own admissions and other material evidence bearing upon this question are wholly ignored in this charge, and the bare denial of Stout is to result • in his acquittal. The error is apparent.

The elements of the fourth charge requested, upon the question of reasonable doubt, were embraced in those given, and the court was not bound to repeat them. The fifth and sixth advised the jury to acquit the defendant if the death of Miss McClamrock was not the result of the miscarriage. These were properly refused upon this question, for thé reason heretofore stated.. The ninth and tenth also relate to the question of reasonable doubt, and are substantially embraced in those given. Charge seventeen, as requested, was to the effect that if the jurors were not convinced beyond a reasonable doubt that the accused took Miss McClamrock to the office of Dr. Stout for the purpose of having an abortion procured, they must acquit him, unless it was further made to appear, beyond such a doubt, that after he arrived at the office he in some way “aided and assisted” in the procurement of the abortion. Section 1857, Burns’ R. S. 1894 (1788, R. S. 1881), provides as follows: “Every person who shall aid or abet in the commission of a felony, or who sh,all counsel, encourage, hire, or command, or otherwise procure a felony to be committed, may be charged, etc., as if he were a principal.”

The instruction narrowed these provisions of the statute to aiding and assisting, to the exclusion of all the other acts therein defined that may render a party guilty in like manner as the principal offender.

The purpose that induced him to take the girl to the office of Stout was not material, if appellant aided or abetted in the commission of the felony charged, or counseled, encouraged, hired, or commanded, or otherwise procured it to be committed. In either of these events, under this section of the statute, he would be guilty the same as though he was a principal, and might be tried and convicted in like manner, and subjected to the same penalty. For the reasons stated the instruction was not correct, and was therefore properly refused.

The eighteenth is also open, in part, to the same objections that may be urged against the seventeenth, and it may be further said in its condemnation that its tendency was to confuse and mislead the jury. The leading idea expressed therein was that if the jury was not satisfied beyond a reasonable doubt that the abortion in question was procured by the defendant and Dr. Stout, in the office of the latter, in Fountain county, the defendant must be acquitted. It was uncertain, and tended to mislead, in this, that the jury might in reason have understood it as meaning that the miscarriage in dispute must have occurred in Stout’s office in order to render the defendant guilty of the crime charged. It was rightfully rejected for this reason alone. The nineteenth instruction refused in part declared, that: “Any admission or confession verbally made by the defendant and written down by another is subject to mistakes that may arise from the misunderstanding of the meaning of the words used by the defendant, or by using words not used by the defendant, or by substituting the language of the person so writing down such admission or confession, for that of the defendant.” To have given this instruction as written would unquestionably, under the decisions of this court, have been an invasion upon the province of the jury. It cannot be said, as a matter of law, that the admissions of the defendant, under the circumstances mentioned, are subject to mistakes. It was proper matter of argument to the jury that the evidence in question under the facts might be or was subject to mistake, and tbe court might have properly called tbe attention of tbe jury to this question. Tbe following decisions fully support our conclusions: Garfield v. State, 74 Ind. 60; Davis v. Hardy, 76 Ind. 272; Morris v. State, ex rel., 101 Ind. 560; Unruh v. State, ex rel., 105 Ind. 117.

Number 20 requested tbe court to charge tbe jury that if they believed that tbe part of defendant’s confession which referred to an arrangement made with Dr. Stout, January 11, 1896, was false, then tbe jury bad tbe right to disregard tbe confession entirely.

It is manifest, we think, that tbe court would not be authorized to advise tbe jury that if they did not be Heve a part of tbe defendant’s own voluntary admission relative to bis guilt, then they were at liberty, for this reason alone, to reject the whole of this evidence, regardless of tbe fact that they might believe the part rejected to be true. Tbe rule asserted by tbe ancient maxim of tbe law of evidence, falsus in uno falsus in omnibus, is interpreted by the courts to mean that where a witness willfully swears falsely as to some material matter in a cause so as perjury may be imputed to him, tbe jury may disregard bis entire testimony, unless it be corroborated by other evidence. Lemmon v. Moore, 94 Ind. 40. Or, in other words, it may be said that the jury ought not to reject that part of tbe witness’ testimony which, under tbe circumstances, they believe to be true. Tbe instruction was properly refused.

By instructions 22, 23, 24, and 25, requested by appellant, be sought to have tbe court submit tbe competency of bis written confession to the jury for its decision, upon tbe alleged ground that it was made by him under tbe influence of fear produced by threats.

Tbe question of tbe exclusion of this confession as incompetent evidence, for tbe alleged reason that it was made through fear produced by threats, became a preliminary one, to be determined by the court, and this legal question under the evidence given thereon having been settled by the court, appellant was not entitled to have it submitted to the jury for its decision. Brown v. State, 71 Ind. 470; Redd v. State, 69 Ala. 255; 3 Rice on Evidence, section 308; 1 Greenl. Ev., section 219; 1 Phil. Ev. *543.

Instruction 26, which asked the court in effect to direct án acquittal in view of the evidence, merits no consideration.

During the selection of the jury appellant challenged for cause two jurors. Both of these challenges were overruled. Complaint is made of these rulings. The opinion which these jurors had formed seemed to be based upon reading accounts in the papers and talking with persons other than witnesses. The examination of the jurors clearly shows that they were each capable of acting impartially in determining the particular issue to be tried, and, under the provisions of section 1862, Burns’ E. S. 1894 (1793, E. S. 1881), the court properly exercised its discretion in holding that they were competent to serve.

Two physicians, Barcus and Olin, testified in behalf of the State in regard to a post mortem examination made upon the body of Grace McClamrock. Doctor Barcus, after detailing to the jury fully what he had observed upon this examination relative to the condition of the womb and the afterbirth, etc., gave it as his opinion that there had been a miscarriage. He was then asked to state “Whether, from the conditions found, the miscarriage occurred from some natural physical difficulty, or whether by some foreign interference.” In response to this question, the witness said that in his judgment the miscarriage was. brought about by some foreign interferences. The contention of counsel for appellant is that the question was not competent, for the reason that it assumed that the. miscarriage which the witness had stated in his opinion had resulted, was caused by some physical defect or by some foreign interference. Possibly the question was somewhat suggestive and faulty, but it does not appear that appellant was in any manner prejudiced thereby.

It is also insisted thiat the admission of this evidence was erroneous for the reason that it preceded the proof of the corpus delicti. Counsel are, however, mistaken in their insistence, for the very purpose of this evidence was to show that a miscarriage had been produced, and the means by which it had been brought about. This certainly tended to prove the corpus delicti as defined in Traylor v. State, 101 Ind. 65. See, also, People v. Aikin, 66 Mich. 460, 11 Am. St. 512, 33 N. W. 821. The evidence was competent, its weight being a question for the consideration of the jury. Dr. Olin was the physician who attended Miss McClamrock, at the request of appellant, at the time of her alleged miscarriage; and he was permitted to give evidence of what he discovered upon an examination of his patient during his attendance, and also the fact that the miscarriage occurred while he was present as her physician. Appellant objects to this evidence mainly upon the ground that finder the provisions of section 505, Burns’ R. S. 1894, the doctor was prohibited from testifying to any facts or matter discovered by him in the course of his professional business. The rule declared by the statute, which forbids a physician to reveal in evidence matters discovered by him in the course of professional attendance or treatment of a patient, is intended tó protect the latter, and not to shield one who is charged with perpetrating an unlawful act upon the patient. The statute cannot be so construed as to permit a party charged with crime, to invoke it as a weapon of defense in his own favor, instead of its being used as a protection to his victim. This interpretation, in our opinion, accords with reason and is supported by authority. Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524. The court did not err in admitting the evidence in dispute.

Dr. Stout, a co-defendant, testified on the trial in behalf of appellant. This witness resided at Covington, Indiana, and had resided at the latter place for about fifteen months, and over, prior to the trial. Before removing to Covington he resided at the town of Hillsboro, some fifteen miles from the former place. The evidence shows that after the doctor left Hillsboro and located atCovington he continued to practice his profession at the former place, and made frequent visits to this town. There was evidence introduced by the State tending to impeach the moral character of the doctor at Covington, and the State then, for the purpose of further impeaching the moral character of this witness, introduced some ten witnesses who resided at Hillsboro. These, over the objection of appellant, were permitted to testify as to the general reputation of the doctor for morality at Hillsboro. Appellant insists that the impeaching evidence ought to have been confined, under the circumstances, to Covington, where the witness sought to be impeached resided at the time of the trial. When the character of a witness is assailed the inquiry relates to his character at the time of the trial, or examination, or some period reasonably near to these dates. This seems to be the rule asserted by the drift of the authorities. It is disclosed that this witness had lived at Covington only about fifteen months, that he continued to practice at his former residence, and made frequent visits to that town. We think that the State had the right to trace his reputation back to his former home, and show that he was there also in bad repute for morality. This evidence, under the circumstances, is fully authorized by the holdings of this court in Memphis, etc., Packet Co. v. McCool, 83 Ind. 392, 43 Am. Rep. 71; Pape v. Wright, 116 Ind. 502; Houk v. Branson, 17 Ind. App. 119; Sage v. State, 127 Ind. 15.

Appellant, over the State’s objections, introduced in evidence a letter purporting to have been written January 10, 1896, by Grace McClamrock, being about eight days before the alleged attempt to produce the abortion on her. This letter in part tended to show that she herself had attempted to produce the miscarriage, and apparently was introduced for that purpose. The State introduced the father of Grace, and his evidence tended to show that the letter was not genuine. Appellant then offered some evidence which it is claimed tended to rebut that introduced by the State upon the authenticity of the letter in question. This was excluded by the court, and this, it is said, was error.

The learned counsel for the State contend that the letter was not proper evidence in the defendant’s favor, and that the court ought to have sustained the State’s objections, and excluded it. We are of the opinion that this contention is correct, and that appellant was not entitled to have this letter considered by the jury as evidence in his favor. Under the circumstances, it was not competent upon any legal ground. It was written, as it appears, several days before the commission of the offense which is averred to have subsequently resulted in causing the death of the girl, and therefore there could be no claim that it was of the character of a dying declaration upon the part of the deceased. The letter was but a narrative of a past transaction, accompanied by no act whatever, and was not surrounded by any circumstances that could impress it with the ordinary sanction of an oath. It was of the character of hearsay, and open to the same objections, and the court erred against the State in admitting it in evidence. Jones v. State, 64 Ind. 473; Commonwealth v. Felch, 132 Mass. 22; People v. Aikin, supra.

In Jones v. State, supra, the defendant was charged with murder, and offered to prove that another person had threatened to kill the deceased, and after the death of the latter admitted that he had committed the crime. It w;as held by this court that this evidence was correctly rejected.

In Commonwealth v. Felch, supra, the defendant was charged with the crime of abortion, from the effects of w'hich his victim died. On his trial he offered to prove that, a short time before the alleged offense, the woman stated to the witness that she was pregnant by a person other than the defendant. That if this witness would not procure a miscarriage for her, or get some one to do so, she would operate upon herself. It appeared that these declarations were neither accompanied by nor explanatory of any act. The court held the evidence to be hearsay, and therefore not admissible.

Appellant not being entitled to .use this letter as evidence, consequently cannot be heard to complain of that introduced by the State to assail its authenticity, or by the action of the court in rejecting that-which he offered to sustain it. It is evident that in this respect he was not prejudiced in any of his rights.

His counsel next, and finally, urge that the evidence does not prove the guilt of appellant. We have examined and considered the evidence, and are satisfied that it fully justifies the jury in their finding. The evidence, as it is disclosed to us in the record, cannot be explained upon any hypothesis consistent with the innocence of the appellant. We have given this ap peal a careful examination, and find nothing to show' that appellant was not given a fair and impartial trial, and under the facts rightfully convicted.

The judgment is, therefore, affirmed.