State v. Farnam

161 P. 417, 82 Or. 211, 1916 Ore. LEXIS 111

• Court: Oregon Supreme Court
• Decided: December 12, 1916
• Status: Published

Opinions

Mr. Justice McBride

delivered the opinion of the court.

1-4. For the reasons stated in the opinion of Mr. Justice Harris, we are satisfied that the defendant was guilty of an unlawful homicide, and that he either shot deceased, which would be deliberate murder, or killed her in the attempt to commit an unlawful abortion upon her, which, under our statute, would be manslaughter. The general rule in this state is that an indictment for murder in the first degree necessarily involves all other grades of homicide which the evidence tends to establish: State v. Ellsworth, 30 Or. 145 (47 Pac. 199); State v. Magers, 35 Or. 520 (57 Pac. 197); State v. Crockett, 39 Or. 76 (65 Pac. 447); State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130). These decisions would seem to foreclose the contention of defendant’s counsel here so far as this branch of the case is concerned, and the case of People v. Olmstead, 30 Mich. 431, which suggests a contrary view, we believe to be based upon an erroneous distinction between that class of homicides known as voluntary homicides, in which violence, assault and trespass are involved, and involuntary homicides caused by the doing of an unlawful act, but with no intent that it should result in death. As observed in People v. Olmstead, the defect is not one of pleading, but of evidence. If it appears, therefore, from the evidence that the defendant, in attempting to commit an abortion upon the deceased, assaulted her, this brings the case within the ordinary rules of manslaughter. Procuring an unlawful abortion upon any woman always involves an assault in law, even when it is done with her consent and connivance, because no one can consent to an unlawful act. While as between the parties an unlawful act may sometimes be condoned, it is not within the power of any person to waive the violation of the laws of the country. Instances of this are found in cases of mutual agreements to fight, wherein it is held that both parties to such a conflict are guilty of assault and battery, and that each may recover damages from the other for injuries inflicted: 5 O. J. 630, and cases there cited. If procuring an unlawful abortion, therefore, is an assault, the offense comes within those involuntary killings by misdirected violence which constitute manslaughter. At common law the producing of an unlawful abortion resulting in the death of the mother was murder by violence. Our statute by making the offense manslaughter has not created a new crime, but has merely reduced the grade of an old offense by changing the punishment from death to imprisonment in the penitentiary. Thus, in Chitty’s Criminal Law, Yol. 3, p. 800, we find the form of an indictment for procuring an abortion, or rather a series of abortions, the fourth count of which we quote, omitting only formal and archaic allegations:

“And the jurors, etc., do further present that the said E. F. afterward, etc., in and upon A. E. * * [she] then and there being big and pregnant with a certain other child, did make another violent assault, and her the said A. E. and then and there did violently beat, bruise, wound, and ill treat, so that her life was thereby greatly despaired of, and then and there violently, wickedly, and inhumanly pinched and bruised the belly and private parts of the said A. E., and a certain instrument called a rule, which he, the said E. F., in his right hand then and there had and held, up and into the womb and body of the said Anne, then and there violently, wickedly, and inhumanly, did force and thrust with a wicked intent to cause and procure the said A. E. to miscarry and to bring forth the said child, of which she was so big and pregnant, as last aforesaid, dead,” etc.

Another count in the same indictment for another abortion attempted upon the same woman charged the defendant with an assault by administering drugs with intent to produce an abortion, and feloniously and of malice aforethought to murder said child. So it is said in Hale’s Pleas of the Crown, p. 429:

“If a woman be with child, and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder, for it was not given to cure her of a disease, but unlawfully to destroy her' child within her, and, therefore, he that gives a potion to this end must take the hazard, and if it kills the mother, it is murder, and so ruled before me at the assizes at Bury in the year 1670”: See, also, Margaret Tinckler’s Case, 1 East’s P. C. 354.

From these precedents I conclude that at common law the act of producing an abortion was always an assault, for the double reason that a woman was not deemed able to assent to an unlawful act against herself, and for the further reason that she was incapable of consenting to the murder of an unborn infant; and, as already shown, our statute, while it has reduced the grade of the homicide from murder to manslaughter, has not taken away any other element of the offense. This being true, the death of the deceased, occurring by reason of a double assault made both upon her and upon her unborn child, comes clearly within the category of those degrees of felonious homicide by violence which begins with murder in the first degree. The practice of allowing convictions for manslaughter upon indictments for murder in the first degree is no mere creature of our statute, but is as old as the common law. Thus in 1 East’s P. C. 340, printed in 1716, we find the following:

“In most cases where justice requires that a man should be put upon his trial for killing another, it is usual (and proper, if there be any doubt) to charge him in the indictment for murder, because in many instances it is a complicated question; and no injury can thereby happen to the individual at all comparable to the evil example of a lax administration of justice in this respect; for the verdict and judgment will still be adapted to the nature of the offense, such as it appears upon the evidence.”

In the appendix to Blackstone’s Commentaries, Yol. 4, is found a form of judgment upon a verdict of manslaughter upon an indictment charging the defendant with willful murder. From all of these authorities we deduce the principle that procuring an unlawful abortion by any means is always in the eye of the law an assault, both upon the woman operated upon and upon the unborn child, and that the one who, in producing such abortion, Mils the mother stands in no different relation to the law from a person who, in an attempt to shoot A, shoots wild and Mils B, except in so far as Section 1900, L. O. L., has modified the punishment. It seems to be the general rnle that an indictment in the ordinary form for murder in the first degree is sufficient to sustain a conviction for a homicide committed in the attempt to perpetrate a felony: Titus v. State, 49 N. J. Law, 36 (7 Atl. 621); Commonwealth v. Flanagan, 7 Watts & S. (Pa.) 415; People v. Giblin, 115 N. Y. 196 (21 N. E. 1062, 4 L. R. A. 757); State v. Covington, 117 N. C. 834 (23 S. E. 337), and many others. Numerous states in which the courts have held as above have statutes similar to ours in relation to the certainty with which the circumstances of the crime shall be set forth in the indictment. The following is a résumé of some of the opinions on this point:

In State v. Foster, 136 Mo. 653 (38 S. W. 721), the court says:

“The indictment charges that the murder was committed in the attempt to rob Atwater, but such statement was wholly unnecessary, as the indictment may be drawn in common form, and then, when proof is made that the homicide was done in the perpetration of a robbery, this proof, being made, is tantamount to that premeditation, deliberation, etc., which otherwise are necessary to be proven, in order to constitute murder in the first degree.”

Tn Titus v. State, 49 N. J. Law, 36 (7 Atl. 621), the indictment contained three counts, of which two are considered in the opinion, one being:

“And the grand inquest aforesaid, upon their oaths aforesaid, do further present that the said James J. Titus, on the said eighth day of April, in the year aforesaid, at the said town of Hackettstown aforesaid, in said county, and within the jurisdiction aforesaid, in and upon one Matilda Smith, in the peace of Glod and this state then and there being, did commit rape, * # and in committing rape in and upon her, the said Matilda Smith, did kill the said Matilda Smith,” etc.

This count was held bad. Another count read as follows:

“In and upon one Matilda Smith, in the peace, etc., did make an assault, and her, the said Matilda Smith, then and there feloniously, willfully and of his malice aforethought, did kill and murder, contrary,” etc.

From the opinion I quote as follows:

“At the trial the jury was instructed that if it appeared that the killing was perpetrated by the defendant in committing, or in attempting to commit, a rape upon the woman, he should be found guilty of murder in the first degree, without reference to the question whether such killing was willful or unintentional. The position of the counsel of the defendant upon the point is that, as there is no special count charging that the death of the woman occurred in the attempt to'commit or in the commission of a rape upon her, the law will not permit such fact to be proved for the purpose of aggravating the killing, if it was unintentional, into the crime of murder in the first degree. This contention is based upon the sixty-eighth section of the Crimes Act, which declares that, ‘All murder that shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate any arson, rape, etc., shall be deemed murder in the first degree and that all other kinds of murder shall be murder in the second degree.’ The argument urged in support of the position that a special count was indispensable whenever the state relied on any of the statutory particulars connected with the killing to intensify such killing into murder, was that, as the act created and defined the offense, every constituent of the crime embraced in such definition must be stated in the indictment. Bnt tins proposition cannot be sustained, for it has been conclusively settled by the Court of Errors in this state, in the case of Graves v. State, 45 N. J. Law, 205, Id., 358 [46 Am. Rep. 778], that the section relied on did not create any new crime, but ‘merely made a distinction, with a view to a difference in the punishment, between the most heinous and the less aggravated grades of the crime of murder.’ This decided case seems to us directly in point, for in that instance, the indictment being in the abbreviated form given by the statute, it was insisted that as such form did not embody the statement that the alleged killing was ‘willful, deliberate and premeditated,’ the pleading was insufficient, as it did not appear that murder, within the statutory definition of the crime, had been committed. The objection was overruled and the indictment was sustained, and it is obvious that if it be not necessary to set out in the count that the alleged killing was ‘willful, deliberate and premeditated,’ which is one of the categories of murder mentioned in the section, it cannot be necessary to show that the killing was in the commission of a rape, which is another of the categories of the same section.”

In the case of State v. Averill, 85 Vt. 115 (81 Atl. 461, Ann. Cas. 1914B, 1005), defendant (called respondent in the opinion) was indicted for murder in the first degree. Defendant objected to an instruction upon involuntary manslaughter. The court says:

“ ‘A lawful act, done in an unlawful or negligent manner, is in law an unlawful act’ (State v. Dorsey, 118 Ind. 167, 10 Am. St. Rep. 111, 20 N. E. 779); and we think the testimony given by the respondent tended to show that the shooting, though unintentionally done, was the result of negligence by her in handling the gun, indicating on her part a carelessness or recklessness incompatible with a proper regard for human life, which, if established, would in law render her guilty of involuntary manslaughter. * * If an indictment so drawn sufficiently informs the accused of the cause and nature of the accusation against him for murder, it must follow that it sufficiently informs him of the cause and nature of any offense included within that of murder, for the greater contains the less.”

Elsewhere in the same opinion is found the following statement:

‘ ‘ Thus it was established at common law, that a person indicted for the murder of another upon mal: "e prepense may be found guilty of manslaughter, because it does not differ in Mnd or nature of the offense, but only in the degree — not in substance of the fact, from murder, but only in the ensuing circumstances, a variance as to which does not hurt the verdict.”

The court held in the case of People v. Pearne, 118 Cal. 154 (50 Pac. 376):

“The indictment charged that the defendant ‘did ■deliberately, willfully and unlawfully Mil one Ellen Dogan.’ The evidence indicated that the Mlling was not done deliberately and willfully, but accidentally and unintentionally, and the jury, taMng that view of the matter, in the light of the instructions of the court as to the law, found the defendant guilty of ■‘involuntary manslaughter.’ It is now insisted that the indictment charges the crime of voluntary manslaughter, and that under such indictment a verdict of involuntary manslaughter constitutes a fatal variance. * * This position is not well taken. If this indictment had simply charged an ‘unlawful Mlling,’ without malice, it would have charged the crime of manslaughter of both Mnds, voluntary and involuntary. * * Yet it has always been held that upon an indictment charging murder, a conviction for manslaughter was proper. In other words, when an indictment charges murder, it also charges manslaughter. An indictment laid for murder charges an intentional Mlling; yet, under the criminal practice and procedure in tMs state, there is no doubt but that a verdict of involuntary manslaughter would find support in such a pleading. TMs is so because involuntary manslaughter is the ‘unlawful killing of a human being/ and such crime is always included in * * murder.”

In Tharp v. State, 99 Ark. 188 (137 S. W. 1097), the-court gave this instruction:

“The jury cannot convict of murder unless the evidence shows a killing in the manner mentioned in the-indictment, but may convict of a lower degree of homicide, if the evidence warrants a conviction for a lower degree, whether the killing was done in the manner-mentioned in the indictment or not.”

The jury found defendant guilty of involuntary manslaughter, and the judgment was affirmed: White v. State, 121 Ga. 191 (48 S. E. 941), is to the same effect. The ease of State v. Moore, 129 Iowa, 514 (106 N. W. 16), wherein the indictment was for murder and the verdict manslaughter under an instruction by the court, as to gross negligence, was affirmed. In Conner v. Commonwealth, 13 Bush (Ky.), 715, the court says:

“Both voluntary and involuntary manslaughter are-included in the crime of murder, and one indicted for murder may be convicted of murder or either of the-degrees of manslaughter.”

In Re Somers, 31 Nev. 531 (103 Pac. 1073, 135 Am. St. Rep. 700, 24 L. R. A. (N. S.) 504), the court says:.

“While we are duly impressed with the fact that involuntary manslaughter does not contain the same-heinous ingredients necessary to make up the crime of murder in the first or second degree, or of voluntary manslaughter, yet we are clearly of the opinion that,, it being an unlawful transgression of the law against homicide, it may properly be considered a lesser degree of homicide, and that a jury * * may properly return in proper cases a verdict of involuntary manslaughter”: State v. Tucker, 86 S. C. 211 (68 S. E. 523).

In State v. Whitney, 54 Or. 438 (102 Pac. 288), the defendant was indicted for manslaughter under Section 1898, L. O. L., referred to in the opinion as Section 1746, B. & C. That portion of the charge in the indictment which was deemed material by the court alleged that the defendant “did feloniously and voluntarily kill one Mabel Wirtz by voluntarily giving and administering unto her, the said Mabel Wirtz, on the fourteenth day of March, 1908, in the said county and state, one suppository containing bichloride of mercury,” etc. Mr. Justice Eakin, in discussing the case, says:

“It becomes important to determine whether it does state acts constituting involuntary manslaughter. The allegation in the indictment is ‘By voluntarily giving and administering unto her, the said Mabel Wirtz, on the fourteenth day of March, 1908, in said county and state, one suppository containing bichloride of mercury, a deadly poison, from the effects of which deadly poison, so given and administered, she, the said Mabel Wirtz, became mortally sick, * * and died/ This allegation does not state facts disclosing an unlawful act, or a lawful act done without due caution and circumspection, or any act of criminality. It is not necessary to allege malice or intent to kill. The criminal element consists in doing the unlawful act, without any intention to take the life of decedent, or do her great bodily harm. It is therefore necessary that the indictment disclose that the act causing death was an unlawful act. * * Counsel for the state in his brief cites authorities to the effect that poison negligently administered, or administered with an evil purpose, in the event death follows, is manslaughter. However, it is not alleged that the poison was administered without due caution or circumspection, nor is an evil purpose alleged, and therefore these authorities do not aid the state. Where the charge is murder by poisoning, as is the case in some authorities cited, the indictment charges an intent to murder, thus disclosing-an unlawful act, or evil purpose, and will support a verdict of involuntary manslaughter under Section 1746, B. & C. Comp. This was expressly held in State v. Ellsworth, 30 Or. 145 (47 Pac. 199), but in the present ease the indictment is confined to a charge of a violation of Section 1746, without alleging an unlawful act.”

In the case of State v. Ellsworth, cited in the above excerpt, the charge in the indictment was murder by poisoning, and this court held that under such an indictment the court could properly instruct the jury that they might return a verdict of involuntary manslaughter caused by culpable negligence. The authorities above cited indicate that where the indictment charges murder and the proof shows an unlawful, involuntary killing, the defendant may be convicted of such grade of felonious homicide as the evidence seems to warrant.

5,6. Another reason why the case at bar should be distinguished from the Michigan case is that an indictment in this state is good as to the means by which the offense was perpetrated if it shall appear from the evidence that such means were unknown to the grand jury. This form of indictment is sanctioned by our Code: See form No. 1, p. 1010, Vol. 1, L. O. L., and forms Nos. 5 and 6, p. 1011, L. O. L.; Bishop, Cr. Proc., §§ 495, 553; Waggoner v. State, 155 Ind. 341 (58 N. E. 190, 80 Am. St. Rep. 237); Edmonds v. State, 34 Ark. 720. In the latter case it is said:

“No doubt the mode or instrument of death, if known to the grand jury, or if it can be ascertained by them, should be alleged in the indictment. * * But this rule must not be carried so far as to furnish a shield from punishment, where it is plain that a crime has been committed. * * It will be seen from the evidence in this case that if the means of death could not have been so alleged, the crime might have gone unpunished. ’ ’

So here. It is conclusively proved that the defendant lured this poor, 15 year old child into a barn remote from human habitation, and that he either murdered her outright, or, in an attempt to produce an abortion to protect himself from the consequences of his own lust, so dealt with her as to bring about her death. The evidence was such that reasonable men, while they might agree as to the fact that an unlawful homicide had been committed (and I cannot see how reasonable men could come to any other conclusion), might well-differ as to the means by which, or the intent with which, the offense was committed. Under such circumstances it was eminently proper for the grand jury to charge that it was committed by means to the grand jury unknown.

There is a further reason why it was unnecessary to charge that the offense was committed in an attempt to produce an abortion, and that is this: In my judgment the statute was directed at that class of abortions only wherein the actual consent of the woman, as distinguished from legal consent, is obtained. I take it that if a person should forcibly seize a woman and attempt against her consent to produce an abortion upon her, or should secretly, with the same design, introduce drugs into her food, and by reason of either of these attempts the woman should be killed, Section 1900 of the Code would not apply, but that he would be guilty under Section 1895 or Section 1898, as the facts might appear. The deceased, a poor, motherless child of 15, was incapable of consenting to an assault upon herself, or upon her unborn child. It is sickening to speak of her consenting to the act. It was as much a forcible act as though some scoundrel had met her upon the road, and, knowing her condition, had seized her, and in the attempt forcibly to bring about a miscarriage had killed her. I am aware of the common-law rule in regard to rape and the defilement of children, but those were exceptions to the general rule in regard to consent which, fortunately, an improved sense of decency has removed by statute, and which should not be extended beyond the limits fixed by a generation less scrupulous than ours in regard to the chastity of children. Upon the whole I am of the opinion that the offense is included in that class of manslaughters by violence that are embraced by the general charge of murder.

7. It is urged that, conceding that manslaughter committed in producing an abortion can properly be considered in a case where the indictment charges murder, the charge of the court in this instance was erroneous, because the court failed to point out the exceptions mentioned in the statute. If there was error in this respect, it was harmless, because there was not the slightest testimony that the operation was necessary to preserve the life of the mother or the child. On the contrary, the evidence indicated that it was wholly unnecessary, and that, if performed at all, it was for the base and sordid purpose of enabling defendant to escape the consequences of his own unlawful act; but there was no error. Where there is no testimony whatever to bring a case within an exception in the statute, the court is not required to charge in relation to such exception. This exact question arose in the case of Weed v. People, 56 N. Y. 628. The opinion is short, and we give it in full:

“Plaintiff in error was indicted for procuring an abortion, by administering drugs causing the death of the mother. The questions above stated were raised upon the trial, and were disposed of as there stated. The court charged, among other things, that if the jury found an abortion had been committed upon deceased, or an attempt had been made causing her death, and that the prisoner was connected with it, they must convict. This was excepted to. It was insisted that the charge was erroneous, as the jury were instructed to convict, notwithstanding they found that the production of the miscarriage was necessary to preserve the life of the deceased, in which case it was not criminal. Held, that the charge was proper, as the evidence showed clearly the absence of any necessity, and no evidence whatever was given tending to show such a necessity, and that therefore there was nothing warranting the submission of that question to the jury.”

Error is predicated upon the refusal of the court to permit an inspection of the feet of the horse which the state claimed was ridden by the defendant on the night of the homicide, and also upon the refusal of the court to permit evidence of the declarations of third parties, tending to show that they had committed the homicide. We all concur with Mr. Justice Burnett in holding that there was no reversible error in either ruling.

For the reasons stated by Mr. Justice Harris we are of the opinion that there was no error in the admission of the testimony of Mabel Barton as to statements made to her by deceased on the evening preceding the homicide.

We also concur with Mr. Justice Harris in holding that the evidence as to the corpus delicti was competent and sufficient.

The judgment of the Circuit Court is therefore affirmed. r Affirmed.

Mr. Justice Harris delivered the following concurring opinion:

8. The scene of the tragedy as told by the record is laid in Cow Creek Yalley. The places to be kept in mind are the Farnam and Morgan residences and the Beamer barn. The defendant lived with his parents, a sister and a brother, Lester Farnam, on a farm about 12 miles east of the town of Glendale. Edna Morgan resided with her father and a younger sister, Esther Morgan, on a farm about 5 miles west of the Farnam place, and about 7 miles east of Glendale. The Beamer barn is located about three quarters of a mile west of the Morgan home, or about 5% miles west of the Farnam place. A public road runs past the Farnam house, extends west down the valley by the Morgan residence, and then continues on past the Beamer bam to Glendale. The Beamer barn was located about 50 feet south of the road. The building had been erected for a dwelling-house, and afterward converted into a barn. The barn may be described as having a main part and a shed, with the main part facing the road and the shed in the rear. When the main part was changed from a dwelling-house to a bam the ceilings and partitions were taken out, so that there was no loft. Hay was kept in the main part, and on December 8th, 7 or 8 tons were spread on the floor to a depth of between 3 and 4 feet. The southwest half of the shed was used for cows, while horses were kept in the southeast portion. There were only two entrances to the bam. One was on the west side close to the south corner, and opened into the place where the cows were kept, and the other entrance was on the east side and led to the horses. A person could reach the main part by entering either one of the two doors. On the night of December 8th, the entrance to the horses had two bars across it, so as to prevent the horses from getting out, but the other door was left open, so that the cows could come and go.

About half-past 1 o’clock on the morning of December 9, 1914, H. H. Beamer, whose residence is 720 feet from the barn, discovered that his barn was on fire. He went down to the barn, and ‘ ‘ stayed until it fell out, and burned down pretty well, just like a pile of hay burning.” Beamer and four other persons who were at the barn then went to bed again. About 7 o’clock in the morning Beamer returned to the fire and “saw the remains of a body in the ashes, still burning.” The neighbors were immediately notified, and appeared upon the scene, and they then “saw it was the body of a lady,” because “there was some hairpins laying right across, kind of back of the skull. There was two right along here, and there was one long corset stay, and one or two small ones curled up next to the long one, and then there was some more laying right side of it.” The remains were found lying next to a sill, and the body was permitted to burn until about 10 o’clock that morning when, acting on the advice of the coroner, the fire was extinguished with water. When the fire started, the body was evidently on the hay inside the main part of the bam, because the remains were found at a place which would have been near the south side, but within the main part of the barn. The arms and the legs were, for the most part, consumed by the fire, and while the body had been burned beyond recognition, there was yet enough left undubitably to establish that it was the charred, burned and baked remnant of a once female human being. Between the thighs, and to some extent protected by them and the lower parts of the body from the fire, lay a fetus, which the medical men said had reached about the fifth month of its development. The verdict of the jury was evidently predicated upon the theory that the death of Edna Morgan resulted from an abortion produced by the defendant.

At the very outset the defendant contends that “there is no proof of the corpus delicti from which the court or the jury can say that the body found in Beamer’s barn was the body of the missing girl at all,” and, further, that “there is not one circumstance from which it can be said that defendant caused the death of Edna Morgan at all, in the commission of an unlawful act or otherwise.” It therefore becomes necessary to examine the evidence which was submitted to the jury.

A motive can be ascribed to Boy Farnam which would have been more relentlessly pursuing and more fearfully pressing upon him than upon any other living person. Boy Farnam is an unmarried man, and was about 23 years of age. Edna Morgan would have been 15 years old on December 9, 1914. Their acquaintance with each other dated from about Christmas, 1913; acquaintanceship grew into friendship, and friendship apparently ripened into love; for, commencing with the latter part of June or the first part of July, no other boy or young man escorted Edna Morgan to dances, parties and literary entertainments except Boy Farnam. The defendant admitted that so far as he knew- he was the only person who kept company with Edna Morgan. She was a frequent visitor at the Farnam house. It was not unusual for her to be there as often as two or three times a week, and the longest period between her visits was about three weeks. More than once she remained at the Farnam home overnight, and the next day was taken home by Boy. On the Saturday preceding the day of her disappearance she stayed overnight with the Farnam family, and was escorted home the next evening by the defendant. J. J. Pollock testified that in the latter half of June, 1914, he saw the defendant and Edna come ont of the Morgan bam, and observed Roy “brushing her clothing and her hair. ’ ’ Ira Lewis said that on the night of July 1, 1914, between 11 and 12 o’clock he saw the defendant and Edna in a compromising position. Rice Wilson and George Barton testified that on November 8th, they saw Roy and the girl in an unmistakable position. In September, 1914, Mrs. Ella McGee made a one-piece gingham dress for Edna with the waist and skirt sewed together, but so constructed that a belt could be worn if desired. Mrs. McGee found the waist measurement to be 26 inches, and made a belt 28 inches long, so that it had a 2-inch lap. This witness testified that when taking the measurement for the dress she noticed the development of the bust, “more than I had noticed her before. I remarked about it.” Edna wore this belt only a few times,- and soon discarded it. Margaret Wilson called at the Morgan home on the afternoon of December 8th, and, having noticed the belt on the table, picked it up and tried it on Edna, and found it to be 2 or 3 inches too short. Her father, R. M. Morgan, stated that Edna had not gone to basket-ball games for probably a month prior to her disappearance. Mrs. Emma Herald told the jury that a few days before Thanksgiving she noticed that the girl “looked too large to be normal,” and that the impression made upon her was so strong that she spoke to her husband about her suspicions. Verna McGee explained some observations which she made at a basket-ball game about a month prior to December. Helen Perbrache and Margaret Wilson stated that Edna had worn a certain short blue coat to school, and that they had not seen her with the coat off in school for a long time. There was ample evidence to warrant the jury in believing that Edna Morgan was pregnant, and that Eoy Farnam was the author of her condition.

Edna Morgan was home in the sitting-room during the evening of December 8th until about 10 o’clock, when, according to the testimony of her father, he saw her alive for the last time as she left that room and stepped out into the hall. The father does not know whether she went upstairs to the bedroom which she occupied with her sister, although he supposed at the time she was going to bed. Esther Morgan retired about 8:30 and never saw Edna alive after that time. The next morning the father and Esther arose at the usual hour, and it was discovered that Edna was missing. When Edna left the sitting-room a cap and a raincoat belonging to Esther and the blue short coat belonging to Edna were hanging in that room, but on the morning of the 9th those articles were gone. Three medical witnesses expressed the opinion that the remains were those of a young person, basing their conclusion on the appearance of a wisdom tooth, the condition of certain sex organs, and the upper end of the femur. Physicians also stated that the expulsion of the fetus resulted from an operation with the hand or an instrument, and that death probably occurred after the birth.

About 8 o’clock on the morning of the 9th, before any women had come from the road to view the fire, tracks, apparently made by a woman, were discovered leading from the center of the road about a rod east of a gap or bars in the fence, “right straight toward the gap” in front of the Beamer barn “in toward” the barn. These tracks were indistinct except two. One was close to the gap or bars, but within the right of way of the road, and the other was inside the inclosure and a few feet from the bars, through which the person making the tracks had evidently gone. Each of the two plain tracks appeared in cow manure. The imprints were made by a No. 3 shoe, and apparently the shoe had a good heel. Edna Morgan wore a No. 3 shoe, and the shoes worn by her that night were comparatively new. The length of the two tracks corresponded with the length of one of her old shoes. Moreover, the very places where the two plain tracks were found would indicate that the woman making those tracks did so in the night, when she could not plainly see where she was stepping.

On the 15th of the preceding October the father purchased a corset from A. H. Henson, a merchant in Glendale. Edna wore this corset that night, because Esther said that she could feel it when she had her arms around the sister while playing with her that evening. The corset could not be found in the Morgan home the next morning. Corset stays and supporter buckles were found with the burned body. A. H. Henson never carried or sold any corsets except W. T. corsets. Indented on the supporter buckles used with the W. T. corsets are the letters and figures: “Pat. 11. 2. 09.” These letters and figures appear on buckles found with the body, and, moreover, the buckles that had been in the fire were exactly like those used on W. T. corsets. There are four supporter buckles on the sample W. T. corset received in evidence. Four buckles were found at the Beamer barn. The metallic part of three buttons or grips used in connection with the supporters were panned out from the ashes, and they were exactly like the same part of the buttons or grips found on the sample corset; and, finally, assurance is made doubly sure from the circumstance that the two clasps, which were found with the body, and are made to fit each other down the full length of the corset, are the exact counterparts of the two clasps on the sample corset.

On December 8th Edna wore the dress that Mrs. Ella McGee had made for her in September. The material and buttons for that dress were supplied by Edna. Mrs. McGee says that Edna furnished her with three large old-fashioned pearl buttons, which the girl said had been used by her mother when living, and that she had no other buttons like them. Those three buttons were sewed on the skirt of the gingham dress. The buttons had “an oval shaped ring carved” in them, and that is what caused Mrs. McGee to “take particular notice to it.” One whole button and some pieces were taken from the place where the body lay, and Mrs. McGee testified that the whole button was “exactly like those I put on the dress.” There was also some testimony that Edna’s front teeth had been shortened by decay, and the record discloses some evidence tending to show that the front teeth of the skull found in the Bearner barn were short. Harry Wilson was at the barn soon after the body was discovered, and he saw the form of a corpse—

“with the head lying in the barn, about the center of the barn. She was lying on her back, and the body-part of the body from the hips up was in this direction, and the corset was one side of it, had fallen off on the sill. She was laying partly on the sill in the center of the barn, and the side that was laying on the sill was still burning. The clothing had burned away, and her form was lying partly on the-side; it lay on the corsets, and they burned on the ground, but on the other side they were standing up, held up by the flesh. I saw also the hair of her head lying there, and the hairpins, and I saw the bones of the arm, and her arms, and the form of her legs. Saw also that she wore something of waterproof, you could see the cuffs —her arms lay this way — and you could see the cuffs of both sleeves; they looked heavier than the bottom of the dress; you could see the cuffs, and three or four inches of the balance. It looked like it had been waterproof cloth. And I could see the bones of the arms laying up this way. And the legs down to the feet. They were badly burned. You could see the form of the legs and the form of the arms.”

Additional evidence appears in the record relative to the appearance of the ashes left by the burning of the wearing apparel. Hairpins and shoe buttons with wire fasteners were found with the body. Mrs. Florence Dewey told the jury that she was up the morning of the 9th on account of her sick mother, who was living in the Eliff house, 810 feet from the Beamer barn; that she stepped out on the front porch to observe the condition of the weather, and noticed a light in the Beamer barn, and “as I turned to go into the house, * * I saw the reflection; I knew the barn was afire, and when I walked a step or two, and went into the door, * * I stopped to look back through to the fire, and as I did so I heard a gun shot at that barn. Some small caliber gun.” Underneath the body Harry Wilson found “three pieces of flat lead; it had melted and run into the crevices.”

Testimony concerning oil of tansy, logwood tea, echinacea, a shoe track, and horse tracks are largely relied upon to connect the defendant with the death of the girl. Evidence concerning a letter written by the defendant and received by the deceased was an important feature of the trial. Oil of tansy is a poison and an abortive agent. Logwood tea is poisonous. Echinacea is used as a blood medicine and to treat blood poisoning. Dr. D. A. Forbes of Canyonville, says that the defendant came to him on September 2, 1914, and told him:

“That he had a cousin, a young lady who had been out with a young man, and she had gotten into trouble, and wanted to know if I would take the case, and I told him I would at term. That is the expiration of the period of gestation. He wanted to know if I could not do something before that time — they did not want to let the case run — and I questioned him with regard to the time, and he said it was two months, and I told him it was not my practice at all to interfere with anything of that kind. And he wanted to know of me, when he found that I would not take the case at all, he wanted to know what I could advise, and I told him I would not advise anything, to begin with, and he asked me then with regard to some drugs, and I told him that anything that he could use in that line was of a poisonous nature, and I would advise him to not fool with it. ’ ’

The defendant also spoke to Dr. Forbes about the use of oil of tansy with cattle, and inquired about using logwood tea and oil of tansy. H. E. Jeffries gave some extract of logwood chips to the defendant, who said that he wanted it for a girl, explaining the reason. About three days afterward Eoy secured more extract of logwood chips, and at that time told Jeffries that:

“He had inquired of a doctor in Canyonville if that stuff was any good or not, and the doctor told him that the stuff was poison, and any poison would do that, and to be careful.”

Eoy subsequently told the witness that the “stuff is no good.”

In September, 1914, the defendant asked J. E. O’Neil, a druggist in Canyonville, for oil of tansy, but the latter had none. On September 6,1914, and again on September 20th following, B. L. Darby sold oil of tansy to Eoy Farnam. On December 10th, a bottle labeled echinacea and a bottle containing oil of tansy were found in the Morgan home in a bureau drawer used by Edna. Tbe sheriff testified that he exhibited the oil of tansy bottle to the defendant, and the latter “said he got it at Darby’s drug-store in Glendale.” Mrs. Farnam stated that “we had a bottle just exactly like this” bottle of echinacea. R. M. Morgan testified that he had never had oil of tansy or echinacea about the house. The defendant admitted upon the witness-stand that he was getting the extract of logwood chips for the purpose of an abortion, but claimed that he was getting them for another man.

Thirteen boards fell out of the gable end of the shed where the cows were kept, and were not consumed by the fire, but lay upon the ground undisturbed until turned over in the search for tracks. A shoe-print was found in the mud about 3 feet from the entrance on the west side of the barn, and indicated that the person who made the track had stepped out of that entrance. This track corresponded in every particular with a shoe worn by Roy Farnam on December 8th. Large corrugated hobnails had been driven into the sole of his shoe, and a single row of small nails appeared around the edge of the sole. Similar hobnails, as well as small nails, had been driven in the heel of the shoe. The track revealed the same row of small nails, and plainly showed the imprints made by the hobnails. Measurements were made of the spaces between the nails in the track, and those measurements correspond exactly with the same spaces between corresponding nails found in the shoe. Additional, but indistinct, tracks were found, indicating that the same person had gone out to the fence and across to the north side of the road. A horse had been tied on a hill north of the road.

It will be remembered that the tracks made by a woman led from a point about one rod east of the bars in front of the bam. Commencing at this point tracks made by a horse were found leading along the north side of the road a short distance and then up a hill to a place in the brush about 180 feet from the road. There were indications showing that the horse had been tied to an oak sapling, and had stood there for an hour or two. There was a ring around the sapling showing that the rough bark had been rubbed as though by a rope tied around it. Black hair was found on the tree, and also on a tree immediately behind the prints made by the hind feet. Some rope fiber was picked up at the foot of the tree, to which the horse had evidently been tied. At about 8:30 on the morning of the 9th, Boy appeared at the scene of the fire, riding a black mare called Black Bess. He tied the mare to the fence on the south side of the road about 50 feet east of the bars at the Beamer bam. The mare was ridden back to the Farnam place that evening. On December 10th the tracks made on the hill on the north side of the road were traced to the Famam bam. Black Bess was then taken out of the bam, and measurements were made of her hoofs. These measurements correspond exactly, not only with the tracks made by the mare when taken out of the barn at that time, but also with the tracks made by the horse that had gone up the hill. The horse tracks in the road between the Farnam place and the Beamer barn showed that the two trips had been made by the same animal, one set of tracks being slightly fresher than the . other. The tracks made on one trip going west turned out of the road in toward the Morgan home, and then proceeded on west toward the Beamer bam. When the mare was taken out of the Famam barn on ‘the 10th, she was tied with a halter that had a rope, and Lester Farnam testified that a rope was attached to every halter that they had. Droppings left by the horse when ascending or descending the hill contained wheat, and on the 10th every manger in the Farnam barn contained wheat hay.

Allen Brown testified that he stayed at the Gilliam house on the night of December 8th. The Gilliam ranch is located between the Farnam and Morgan homes, being about three miles west of the Farnam place and about two miles east of the Morgan residence. Brown went to bed about 10 o’clock on the night of the 8th, but was kept awake by a dislocated thumb until about 2 or 3 in the morning. This witness says that about one hour and a half after he went to bed he saw a horse and a rider pass along the road going west, and about 2 o’clock in the morning he heard a horse cross a bridge not far from the house. The defendant says he retired at 10:15 the night of the 8th, and it appears that he arose about 5 o’clock the next morning.

About noon on December 8th, the defendant wrote and addressed a letter to Edna Morgan, and at his request his mother put it in the mail-box, and then telephoned to Edna, telling her that she would receive a letter. The stage reached the Morgan home about 4 o’clock and Edna was seen to receive a letter from the driver. She read it on the way to the house, and then put it in her bosom. That morning Mabel and Alice Barton came to the Morgan home to visit with the Morgan girls, and before the arrival of the stage, it was understood that Edna was to go home that ■evening with the Barton girls and stay overnight with them, at their home about two miles west of the Morgan place; but, after receiving the letter, Edna •decided not to go home with the Barton girls, because she thought that Boy would come down that evening. After Roy had done the chores, and about suppertime, he was called to the phone by Jimmie Pickett, who asked the defendant to come over to the Jeffries home and play cards that evening, but Roy answered, saying that he could not because he was busy. Afterward the defendant was called to the phone by Edna, and they had some telephonic conversation.

If time and space permitted, many additional details could be recited which dovetail with, strengthen and support the prominent features of the story of Edna Morgan’s disappearance; but no attempt will be made to enlarge upon the narrative, except to note that when at the scene of the fire on the morning of the 9th, the defendant said, “I will be blamed for this,” and, according to the testimony of Mrs. E. E. Wilson, a short time afterward, and on the same morning, he said, “How much better marriage would have been than this.” There was ample evidence to justify the jury to find that the defendant at some time after 10:15 left his home on Black Bess, passing the Gilliam house three miles distant, when Brown says he saw a horse and rider going west, and that, pursuant to an engagement, he picked up Edna at her home, and proceeded on toward the Beamer barn three fourths of a mile away; that as they reached the bars Edna got off the horse at the center of the road, and went in toward the barn, while Roy rode the mare a little farther west down the side of the road, and then up the hill north of the road, and, after tying his horse, joined Edna and went in the Beamer barn with her, and subsequently produced an abortion upon her; that to conceal the crime he set fire to the barn, made his :exit through the door at the west end of the shed, went ■to the fence, crossed to the north side of the road, and .on up. to the place where the mare was tied, and then started for home, passing the Gilliam house at about the time when Brown heard a horse cross the bridge, and arriving home considerably before 5 o’clock on the morning of the 9th. Moreover, the shot heard by Mrs. Dewey and the three pieces of lead found by Harry Wilson furnished some evidence at least tending to show that the defendant did not stop with an abortion. While the evidence is circumstantial, still it is stronger both in quantity and quality than the record made in State v. Williams, 46 Or. 287 (80 Pac. 655), and the transcript of testimony presented here is in no respect less convincing, but in many particulars is more forceful than the case made by the prosecution in State v. Barnes, 47 Or. 592 (85 Pac. 998, 7 L. R. A. (N. S.) 181).

9. The defendant complains of a ruling which permitted an answer given by Mabel Barton to remain in the record. When a witness for the state, Mabel Barton, was asked by the district attorney:

“Now tell the jury what Edna told you about going home with you that evening.”

The witness answered:

“She said she could not because she thought Boy was coming down. ’ ’

The court, however, overruled a motion to strike, on the theory that it was competent for the state to prove that Edna Morgan had planned to meet the defendant, and the testimony was offered by the state for that purpose.

Even though it be assumed that the testimony moved against was incompetent, nevertheless the defendant is in no position to claim that he was materially prejudiced by it. B. M. Morgan was the first witness called by the state. On direct examination he testified about having seen Edna receive a letter from the stage-driver on the afternoon of the 8th, and upon cross-examination counsel for the defendant asked this question:

“Now then, you say Edna received a letter the day before from Roy Farnam. How do you know the letter was from Roy Farnam?”

“Charley Hobbs said he got it out of the Farnam mail-box, and it was addressed to Edna. As far as my positively knowing that Roy Farnam wrote the letter that Charley Hobbs gave her, I don’t know. All I know is that she got the letter. She told the girls it was from Roy; she could not go home with the Barton girls because Roy was coming that evening.”

The answer was responsive to the question, and no objection was at any time made to any part of the answer. The testimony was elicited by the defendant himself, and it was a part of the record when Mabel Barton testified afterward. Moreover, defendant himself invoked the same rule when offering a letter that had been written by Edna Morgan. The answer of Mabel Barton was substantially the same, and not materially different from the testimony given by R. M. Morgan; even if the court had taken the answer of Mabel Barton from the jury, it is nevertheless fair to assume that the testimony of R. M. Morgan would have remained in the record, for the reason that it was elicited by the defendant himself, and was not objected to at any time during the trial; and therefore the defendant could not have been prejudiced, as now contended by him. It is true that the failure to object to the evidence of R. M. Morgan may not operate as a waiver of any right to object to like evidence on the part of Mabel Barton if such evidence was incompetent; but the indisputable fact still stands out in bold, relief that so long as the testimony of E. M. Morgan remained in the record, any failure to eliminate the answer of Mabel Barton could not injure the defendant to the extent claimed by him.

It was competent, however, for the prosecution to show that the deceased intended to meet Eoy Farnam that night. The ruling of the court is not within the ban of the hearsay doctrine, nor is it novel or startling. Judicial precedents and text-writers of recognized authority support the admission of declarations made in cases analogous to the one in hand. In State v. Hayward, 62 Minn. 474 (65 N. W. 63), Harry Hayward was convicted of having procured one Claus Blixt to murder Catherine Gring. She was shot about 7 o’clock on the evening of December 3d. A Mrs. Hazelton, a witness for the . state, was permitted to testify that she was with Miss Gring in a dry-goods store in Minneapolis about 4:35 p. m. on the day of the murder; that the witness and Miss Gring left the store together about 5:00 p. m. and as they were parting Mrs. Hazelton asked Miss Gring to go home with her to dinner, and the latter answered that she could not because “she had a business engagement with Mr. Hayward.” The testimony was held to be competent.

In Hunter v. State, 40 N. J. Law, 495, Benjamin Hunter was convicted of the murder of John M. Armstrong. At the trial the son of the deceased was permitted to tell the jury that in the afternoon of the day of the murder his “father said he intended to go with Mr. Hunter, and he and Mr. Hunter were going to Camden that night.” About one hour after the conversation with the son the deceased wrote a letter to his wife, saying:

“I will not be borne much before 9 o’clock. I am going over to Camden again with Mr. Hnnter, on business connected with the Davis matter.”

The declarations of the deceased were held to be competent, the court saying:

“The present point of inquiry therefore is whether these declarations of Mr. Armstrong to his son, and the similar declarations contained in the note to his. wife, can reasonably be said to be competent parts, or the natural incidents of the act of the deceased in going to Camden, which act was incontestably a part of the res gestae. After mature reflection and a careful examination of the authorities, my conclusion is that these communications of the deceased should be-regarded as constituents of that transaction, for I think they were preparations for it, and thus were-naturally connected with it. In the ordinary course of things it was the usual information that a man, about leaving his home,, would communicate for the convenience of his family, the information of' his friends, or the regulation of his business. At the time it was given, such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes, the idea that such utterances were intended to serve-any purpose but that for which they were obviously designed. If it be said that such notice of an intention of leaving home could have been given without introducing in it the name of Mr. Hunter, the obvious-answer to the suggestion I think is that a reference to his companion who is to accompany the person leaving is as natural a part of the transaction as is any other incident or quality of it. If it is legitimate to-show by a man’s own declarations that he left his-home to be gone a week, or for a certain destination, which seems incontestable, why may it not be proved in the same way that a designated person was to bear him company? At the time the words were uttered or written, they imported no wrongdoing to anyone,, and the reference to the companion who was to go with Mm was nothing more, as matters then stood, than an indication of an additional circumstance of his going. If it was in the ordinary train of events for this man to leave word, or to state where he was going, it seems to me it was equally so for him to say with whom he was going.”

In State v. Smith, 49 Conn. 376, a conviction of murder in the first degree was affirmed, and the court held that it was competent for the wife of the deceased to testify that as he left his home he said “that he was going to arrest ‘Chip Smith,’ meaning the prisoner.”

In State v. Mortensen, 26 Utah, 312 (73 Pac. 562, 633), the defendant was sentenced to death upon a conviction of murder. The wife of the deceased was permitted to testify that after supper on the night of the homicide, as her husband was leaving the house, he closed the door and said to her:

“I am going over to Peter’s [defendant’s] for a few minutes to collect some money. I will be back soon. ’ ’

The question of the admissibility of the quoted evidence was considered at length, and in the course of the discussion the court used this language:

“The principal objections to the admission of this testimony urged are that the defendant was not present when the statements were made, and that it is hearsay evidence, and not a part of the res gestae. These objections are not sound. The fact that the defendant was not present when the declarations testified to were made is wholly immaterial, and the statements are not merely hearsay evidence. They are declarations of the intention and purpose of the deceased to meet the defendant, and were admissible, as original evidence, under one of the exceptions to the rule of hearsay. Some courts admit such declarations as a part of the res gestae, but we think they more properly come under the exceptions to the rule of hearsay evidence: Greenl. Ev., § 162a. The evidence of these declarations was not admitted for the purpose of showing that the deceased was actually at the house of the defendant, but to show what was in his mind— what his intentions were — at the time of utterance. Evidence of what a person’s intentions were is relevant circumstantially to show that he afterward carried out his designs.”

In United States v. Nardello, 15 D. C. (4 Mackey) 503, it was decided that it was competent to show that when last seen alive, and as he left two companions, the deceased said “he was going out to seek Nardello, to look for him.”

In Thomas v. State, 67 Ga. 460, Harp Thomas was convicted of murder on circumstantial evidence. On the night of the homicide, when in the act of leaving the house, and a short time before the murder, the deceased said:

“There are two persons down the alley; I think it is Harp and his sweetheart. I will go and see.”

The testimony was held to be admissible.

In Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 (36 L. Ed. 706, 12 Sup. Ct. Rep. 909), the beneficiary, claiming that her husband, John W. Hillmon, was dead, attempted to recover on a policy insuring his life. The company contended that John W. Hillmon was not dead, but that he was alive and in hiding. On the trial the plaintiff introduced evidence tending to show that about March 5, 1879, Hillmon left Wichita, in the state of Kansas, and traveled in South Kansas in search of a site for a cattle ranch, and that on the night of March 18th, while in camp at a place called Crooked Creek, Hillmon was killed by accident on the discharge of a gun. The company introduced evidence tending to show that the body which was represented to be Hillmon’s was not that of Hillmon, but was the body of Frederick Adolph Walters. About the first week of March, Walters wrote a letter to his sister, which read in part as follows:

“I now in my usual style drop you a few lines to let you know that I expect to leave Wichita on or about March 5th, with a certain Mr. Hillmon, a sheep trader, for Colorado or parts unknown to me. I expect to see the country now. News are of no interest to you, as you are not acquainted here. I will close with compliments to all inquiring friends. Love to all.”

Under date of March 1st, at Wichita, Kansas, Walters wrote a letter to his fiancee, reading thus:

“Tour kind and ever welcome letter was received yesterday afternoon about an hour before I left Emporia. I will stay here until the fore part of next week, and then will leave here to see a part of the country that I never expected to see when I left home, as I am going with a man by the name of Hillmon, who intends to start a sheep ranch, and as he promised me more wages than I could make at anything else I concluded to take it, for a while at least, until I strike something better. There is so many folks in this country that have got the Leadville fever, and if I could not have got the situation that I have now I would have went there myself; but as it is at present, I get to see the best portion of Kansas, Indian Territory, Colorado and Mexico. The route that we intend to take would cost a man to travel from $150 to $200, but it will not cost me a cent; besides, I get good wages. I will drop you a letter occasionally until I get settled down; then I want you to answer it.”

The communications were held to be competent evidence of the intention of Walters at the time of writing them, the court saying:

“Man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. Tbe nature of the fact to be proved is tbe same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distant and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death there can hardly be any other way of proving it; and while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recollection of what he then said, and is less trustworthy than letters written by him at the very time, and under circumstances precluding a suspicion of misrepresentation. The letters in question were competent, not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go, and that he went with Hillmon, than if there had been no proof of such intention.”

Some of the many additional illustrations of the rule may be found in State v. Power, 24 Wash. 34 (63 Pac. 1112, 63 L. R. A. 902); State v. Dickinson, 41 Wis. 299; Mathews v. Great Northern Ry. Co., 81 Minn. 363 (84 N. W. 101, 83 Am. St. Rep. 383); Eighmy v. People, 79 N. Y. 546; Commonwealth v. Trefethen, 157 Mass. 180 (31 N. E. 961, 24 L. R. A. 235); Commonwealth v. Howard, 205 Mass. 128 (91 N. E. 397); Inness v. Boston etc. R. R., 168 Mass. 433 (47 N. E. 193); The San Rafael, 141 Fed. 270 (72 C. C. A. 388); People v. Atwood (Mich.), 154 N. W. 112; State v. Hunter, 131 Minn. 252 (154 N. W. 1083, L. R. A. 1916C, 566); State v. Garrington, 11 S. D. 178 (76 N. W. 326); State v. Howard, 32 Vt. 380; Rogers v. Manhattan Life Ins. Co., 138 Cal. 285 (71 Pac. 348); Denver & R. G. R. Co. v. Spencer, 25 Colo. 9 (52 Pac. 211); Weightnovel v. State, 46 Fla. 1 (35 South. 856); Walling v. Commonwealth (Ky.), 38 S. W. 429; People v. Conklin, 175 N. Y. 333 (67 N. E. 624); Railway Co. v. Herrick, 49 Ohio St. 25 (29 N. E. 1052); Carroll v. State, 3 Humph. (22 Tenn.) 315; Sharland v. Washington Life Ins. Co., 101 Fed. 206 (41 C. C. A. 307); Cluverius v. Commonwealth, 81 Va. 787; Tilley v. Commonwealth, 89 Va. 136 (15 S. E. 526); Harris v. State, 96 Ala. 24 (11 South. 255); State v. Peffers, 80 Iowa, 580 (46 N. W. 662); State v. Jones, 64 Iowa, 349 (17 N. W. 911, 20 N. W. 470); State v. Winner, 17 Kan. 298; Territory v. Couk, 2 Dak. 188 (47 N. W. 395); Reg. v. Buckley, 13 Cox’s Cr. Cases, 293. See, also, 3 Wigmore, Ev., § 1725; 16 Cyc. 1184; 7 Ency. Ev. 622; State v. Giudice, 170 Iowa, 731 (153 N. W. 336, 342).

The concrete examples previously noted are not sporadic instances of the application of any strange and extraordinary doctrine, but, on the other hand, they are fairly illustrative of a rule of evidence which is firmly established by the overwhelming weight of judicial opinion. Jurists and text-writers, however, do not agree upon the theory of the doctrine. Declarations, like the one considered here, are, by many, and perhaps, by most, of the authorities, admitted as part of the res gestae; they are spoken of by some as verbal acts; and they are characterized by others as original evidence admissible as an exception to tbe hearsay rule. An exemplification of the application of the rule and at the same time an illustration of the difference of opinion as to the basis of the rule may be found in State v. Hayward, 62 Minn. 474 (65 N. W. 63), where all the members of the court agreed that the declaration of the deceased was competent, the majority holding that:

“This statement forms a connected part of the evidence, and tends to characterize her subsequent acts and her departure on the fatal ride soon after she made the statement. This statement was not mere self-serving, hearsay evidence, but a verbal act, just as relevant as would be evidence that prior to her departure she put on her cloak or hat. ”

■ — and Mr. Chief Justice Start saying that:

' “This evidence clearly falls within the rule that, when the question is whether a person did a certain act, his declarations, oral or written, made prior to and about the time he is alleged to have done an act, to the effect that he intended to do it, are admissible as original evidence, if made under circumstances precluding any suspicion or misrepresentation.”

While the writer inclines to the view expressed by Mr. Chief Justice Start 3 Wigmore, Ev., § 1726, Jacobi v. State, 133 Ala. 1 (32 South. 158), and State v. Mortensen, 26 Utah, 312 (73 Pac. 562, 633), yet the rule itself is now of more concern than the theory upon which it is founded.

If the doing of an act is a material question, then the existence of a design or plan to do that specific act is relevant to show that the act was probably done (1 Wigmore, Ev., § 102); and, considering the plan or design as a condition of the mind, a person’s own statements of a present existing state of mind, when made in a natural manner and under circumstances dispelling suspicion and containing no suggestion of sinister motives, only reflect the mental state, and therefore are competent to prove the condition of the mind, or, in other words, the plan or design.

10,11. The declaration of Edna Morgan was made in a perfectly natural manner, and there is nowhere in the record any intimation that it was made otherwise. The whereabouts of Edna Morgan was a material issue. It was important to know what she did and where she went. The state contended that she met the defendant and accompanied him to the Beamer bam. Evidence of her declaration was competent to show what was in her mind, and that what she intended to do was probably done: State v. Mortensen, 26 Utah, 312 (73 Pac. 562, 633). The language used by her was only one way of stating that she intended to meet Roy Farnam, especially when it is remembered that on the preceding Sunday the defendant had accompanied Edna Morgan to her home after her visit with the Farnams. The jurors were not obliged to conclude that the letter alone and of itself prompted the statement made by her. The letter was not produced at the trial, and was probably destroyed. Testimony concerning the utterance made by Edna Morgan was neither offered nor admitted for the purpose of showing what Roy Farnam intended to do or did, but the transcript of the evidence discloses that the prosecution offered the testimony for the sole and express purpose of showing what Edna Morgan intended to do, and consequently the admission of the evidence did not violate Section 705, L. O. L. The statement made by the deceased did not recount anything that had previously occurred; it was not tinstatement of a fact external to the mind; it was not a narrative of a past event; and it does not belong to that class of utterances which are either expressly permitted or impliedly rejected as evidence by Section 727, subdivision 4, L. O. L. Tbe rule making tbe statement of Edna Morgan admissible does not contravene any section of the Code. If, as held by most courts, tbe res gestae doctrine is tbe basis of tbe rule admitting tbe declaration, then it is expressly sanctioned by tbe Code; or if tbe rule is founded on tbe idea that tbe utterance is a verbal act, a notion entertained by a few courts, then, strictly speaking, tbe evidence is not hearsay; or if, as the writer thinks, tbe true theory of tbe rule is that tbe statement of tbe deceased is original evidence of her intention, which the jury can consider as a circumstance indicating that she probably did what she intended to do, then on that theory no section of tbe Code is transgressed. Tbe rule in question is analogous to tbe doctrine, approved by this court and recognized, generally, making exclamations of pain original evidence of a circumstance tending to show a particular bodily condition when tbe bodily condition of tbe person is a relevant fact: State v. Mackey, 12 Or. 154, 158 (6 Pac. 648); Thomas v. Herrall, 18 Or. 546, 549 (28 Pac. 497); Vuilleumier v. Oregon W. P. & R. Co., 55 Or. 129, 132 (105 Pac. 706); 16 Cyc. 1164. If evidence is competent for one purpose, it cannot be rejected merely because it is not competent for another purpose Being competent to show what Edna Morgan intended to do, tbe testimony of Mabel Barton was not. rendered incompetent for all purposes merely because it was incompetent for tbe purpose of connecting Boy Farnam with tbe alleged crime, although it would have been proper to instruct tbe jury to limit tbe evidence to tbe sole purpose for which it was competent, and a failure to give a requested instruction to limit tbe application of tbe evidence to the single purpose for which it is admissible would be error; hut here the contention is that the testimony was not competent for any purpose: State v. Finnigan, 81 Or. 538 (160 Pac. 370). The conclusion that the testimony of Mabel Barton was competent has been reached with a full knowledge of the expressions to be found in State v. Glass, 5 Or. 73, 82; State v. Anderson, 10 Or. 448, 454; State v. Ching Ling, 16 Or. 419, 424 (18 Pac. 844).

12. I concur in what Mr. Justice Burnett says about the refusal to permit an inspection of the feet of the mare and the rejection of the offer to prove the declarations of another person to show that such person had committed the crime charged against the defendant. I concur in the reasoning and conclusion of Mr. Justice McBride relative to the sufficiency of the indictment to support the verdict of the jury. There was sufficient evidence to show that Edna Morgan was killed, and that the defendant caused her death; and, in my opinion, no prejudicial error was committed during the trial.