
    The State of Ohio v. Harper.
    1. The general rule of evidence is, that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.
    2. Upon an indictment for unlawfully using an instrument upon the person of a woman, with intent to destroy a vitalized embryo, in consequence of which she died, her dying declarations are inadmissible. '
    Error, on exceptions, to the Court of Common Pleas of Allen county.
    The defendant was indicted, under the act of April 13, 1867 (S. & S. 271), in one count, for using an instrument in and upon one R. G-., who was pregnant with the vitalized embryo "of a child, “ with intent, then and thereby, the vitalized embryo unlawfully to kill and destroy; ” and that by' the use of the instrument for said purpose, the vitalized embryo was destroyed. In another count it is alleged that the instrument was used with the same intent,- and that the death of the said R/ G-. was thereby caused.
    On the trial, the state laid the foundation for the admission of the dying declarations of the said R. G., and then offered to prove that while the said R. G. was in extremis, she told, the witness >that the defendant had used an instrument in and upon her person' and womb, for the purpose of producing an abortion, in consequence of which she had a miscarriage a few hours before, and that her sickness was wholly caused thereby. The defendant objected to the admission of these declarations of R. G. The court sustained the objection and excluded the testimony, and the defendant was acquitted.
    ■ The prosecuting attorney took exceptions to the opinion and ruling of the court, and also took a bill of exceptions, setting out the facts above stated. This is a proceeding, under sections 157-160 of the code of criminal procedure (69 Ohio L. 310, 311), to obtain the decision of this court on the question raised.
    
      E. A. Ballard, for plaintiff in error.
    
      Isaiah Pillars, for defendant in error:
    As to the admission of dying declarations, see 1 “Wharton Criminal Law (7 ed.), sec. 675, and authorities there cited; 1 Greenleaf on Evidence, § 156; 3 lb., § 236; 1 Taylor on Evidence, 644R646; 2 Russell on Crime, 761; Rex v. Lloyd et al., 4 C. & P. 233; Rex v. Hutchison, 2 B. & C. 608; Brown v. Commonwealth, 73 Penn. St. 321; Lambeth v. Mississippi, 23 Miss. 322; The People v. Davis, 56 N. Y. 96; Wilson v. Borem, 12 Johns. 286; 1 Rex v. Edwards, 4 E. R. 519 (Moak’s notes).
   Gilmore, C. J.

This was an indictment for unlawfully using an instrument with the intent of producing an aboi-tion, and not an indictment for homicide. The State v. Barker, 28 Ohio St. 583; The People v. Davis, 56 N. Y. 95.

The death of R. G. was not the subject of the charge, and the death was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation.

Did the court err in rejecting the dying declarations of R. G. in proof of the charge?

We think not. The general rule is that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Rex v. Mead, 2 B. & C. 605; 1 Greenl. Ev. § 156; Rex v. Lloyd, 4 C. & P. 233; Runyan v. Price, 15 Ohio St. 8.

Upon an indictment for feloniously using an instrument upon the person of a woman, who afterward died, with intent to procure an abortion, the dying declarations of the woman are inadmissible. Reg. v. Hind, 8 Cox C. C. 300; 56 N. Y., supra.

Exceptions overruled.  