
    William Wroe v. The State of Ohio.
    1. Where an indictment for murder in the second degree was returned against a defendant, to which he pleaded not guilty, and on which he was convicted and sentenced, held — That on error to reverse the sentence, no notice can be taken of the action of the court on a former indictment for the same homicide. The record of the proceedings upon the former indictment forms no part of the record of the proceedings on the indictment on which the defendant was convicted.
    2. On an indictment for murder in the second degree, the jury may return a verdict for manslaughter.
    3. In making a dying declaration, -the declarant, in speaking of the fatal wound, said it was done without any provocation on his part. Held — 'That this declaration was not incompetent as being mere matter of opinion.
    4 The limits to which a witness may be cross-examined on matters not relevant to the issue, for the purpose of judging of his character and credit from his own voluntary admissions, rests in the sound discretion of the court trying the cause. Such questions may be allowed when there is reason to believe it will tend to the ends of justice; but they ought to be excluded when a disparaging course of examination seems unjust to the witness, and uncalled for by the circumstances of the case.
    5. Where dying declarations are proved in a case, a statement of the deceased made at another time, which is neither a dying declaration, nor a part of the res gestee, is not admissible to impeach such declarations.
    6. Where the defendant, in a criminal prosecution, in his defence offeK proof of his good character prior and up to the time of the alleged offence, it is error to permit the State to prove the defendant’s bad character at »• subsequent period.
    Error to the court of common pleas of Montgomery county.
    At the May term, 1870, of the court of common pleas of' Montgomery county, Wroe, the plaintiff in error, was indicted for murder in the second degree. ELe pleaded not guilty,. and, on trial, was convicted of manslaughter and sentenced.
    On the trial, Smith Davison, a witness for the State, was examined as to the dying declarations of George Eisher, the - person charged to have been murdered. Davison testified that “ on the day after the shooting I went over to Mrs. Clark’s with Fred Brown. I saw the wound, and had a conversation with the deceased. He said he didn’t expect to live; the time of day was between eleven and twelve o’clock. of the next day after he was shot. My testimony was recorded in the coroner’s inquest. Can’t give the exact language, but can give the purport of the whole conversation. Think I can testify to the main points — to the substance of ’ what he said. I asked him how it occurred ? He said he • had been shot the night before. I asked him if he knew them? He said he didn’t, and also said it was done without provocation on his part. Don’t remember that he spoke of manner, except that he had done nothing to provoke it.” The above testimony was objected to by the defendant, and' his objection overruled; to which he excepted.
    George Rike, a witness for the defendant, having testified ‘ in his examination in chief, among other things, that he was a plasterer and was working at his trade at the time of the homicide; that he was on the police force of the city a short" time previous; that he was acquainted with the defendant and accompanied him to the place of the homicide at the time of its commission; was on his cross-examination asked the following question: “ Were you not discharged or compelled to resign from the police force of the city of Dayton? ” This question was objected to by the defendant, but his objection was overruled, and the witness answex*ed: “ I was discharged fx-om the police force some two or three months before this difficulty.” The defendant excepted.
    The same witness having given his account of what occurred at the tixne and place of the homicide, axxd having .stated that he had been acquainted with the defendaxxt for a great many years, was further asked, on his cross-examination, the followixxg question: “ Are you not now under indictment for murder in the second degree, in this court ? ” The defendant objected to this question, but his objection was ovemded and the witness answered : “ I am; indictment found at presexxt tex’m for offexxce alleged to have been committed ixx December, 1870.” The defendant excepted. On bis re-examination the witness stated: “ I pleaded not guilty, .and am not guilty of the charge of murder in the second de.gree.”
    Testimony having been intx’oduced by the State tending to show, by the dying declarations of the deceased, the manner in which he received the fatal wound, the defexxdant called one Joseph Thomas as a witness, who having testified that he had a conversation with the deceased an hour after he received the wound from which he died, the defendant, for the .purpose of showing that deceased had made a different statemexxt as to the manner in which he received said wound, propounded to the witness the following question : “ State what, if anything, was said by Fisher, in that conversation, as to the manner in which he xuceived the pistol-ball wound ? ” To which question the State objected, on the ground that no foxxndation had been laid showing the declaration to be a dyixxg declaration; which objection was sustained by the court, and the witness was not permitted to answer the question. The defendant excepted to this ruling.
    
      On the cross-examination of this witness, he was asked the same question as that propounded to Rike, as to his being under indictment for murder in the second degree; to which he answered: “ I am indicted for murder in the second degree with George [the last witness]; offence charged to have been committed in December, 1870.” This question and answer were excepted to.
    Daniel Lockert, an associate of the defendant, who also accompanied him to the place of, the homicide, and was present at the time it was committed, having testified generally in the case, was on cross-examination asked by the prosecuting attorney if he had not been indicted for an assault and battery in that court, and pleaded guilty. He answered: “ I was indicted for assault and battery at the April term of this court, 1866, to which indictment I pleaded guilty, as appears by the record now shown me.”
    He was also asked, if he was not now under recognizance to this court on a peace warrant, on an affidavit made December 26th, 1870, which was still pending. The witness answered in the affirmative. The defendant’s objections to these questions and answers were overruled, and he excepted.
    The defendant in his defence having introdriced testimony to show his good character as a peaceable and quiet man prior to the homicide in question, which occurred July 24th, 1868, the State, for the purpose of rebutting that testimony, called Clement L. Baumann as a witness, and propounded to him the following question: “ Have you any knowledge of the character of the defendant as to his being a peaceable and quiet man within a few months before and after this difficulty?” The defendant objected to this question as incompetent and irrelevant, which objection was overruled by the court, and the witness was directed to answer the same, which he did by stating, “ I had no means of knowing his reputation previous to the difficulty; since the difficulty I have learned that his reputation was — he had been a good boy, but had been going in bad company, and got to be fast.” To the admission of this testimony the defendant objected; his objection was overruled and he excepted.
    
      In the examination of some of the witnesses for the defendant, and for the purpose of showing a license to the defendant to enter upon the premises of Mrs. Clark (the place-of the homicide), that he was not in the commission of an unlawful act in being upon said premises at the time of the discharge of the pistol causing the decease of Fisher, the defendant’s counsel propounded to them the following question; “ State whether or not at that time (July 24th, 1868), Mrs. Clark kept a public house at the place where the difficulty occurred, to which young men were in the habit of resorting.” This question was objected to by the State; the objection was sustained, and the witnesses were not allowed to answer the-question.
    Prior to the return, by the grand jury, of the indictment upon which the plaintiff in error was convicte.d and sentenced, he was held under recognizance to answer to another indictment pending against him for the same homicide.
    At the March term, 1870, he made a motion for his discharge under section 162 of the code of criminal procedure, which was overruled. At the same term a plea in abatement to the first indictment was adjudged in his favor, and he was held to bail for his appearance at the next term.
    At the next term the indictment on which the plaintiff in error was convicted was found and returned, to which he appeared and pleaded not guilty; and on this plea he was tried convicted, and sentenced.
    
      Munger, Craighead, Boltin and Shauck for plaintiff in error:
    1. The court below erred in overruling the motion to discharge the defendant at the March term, 1870. Code, sec 162.
    2. Under the constitution of this State, a person cannot be tried upon an indictment for murder in the second degree for the crime of manslaughter, unless that crime is fully described in the indictment as required by the well-established rules of criminal pleading. We have no common-law crimes in Ohio, but all are statutory; and that of manslaughter is no exception. It is wholly created and defined by our statute,, and is distinct from that of murder in either degree. Const., art. 1, sec. 10; Fonts v. The State, 8 Ohio St. 114; Grummond v. The State, 10 Ohio, 512; Hagan v. The State, 10 Ohio St. 459; Kain v. The State, 8 Ohio St. 306; Lamberton v. The State, 11 Ohio, 284.
    In this case there is no averment in the indictment of an. unlawful hilling. S. & C. 403, sec. 3. In either form of manslaughter the hilling must be unlawful, to constitute the crime. An unlawful killing is as much an ingredient of the-crime of manslaughter as purpose or intent to kill is of mur der. So we maintain that the word “ unlawful,” being a necessary ingredient of the crime of manslaughter, must be-averred in an indictment charging that crime. 1 Chitty’s Crim. Pl. (4th Am. Ed.) p. 280; Wharton’s Am. Crim. Law,, secs. 364, 366 (4th Ed. 366); King v. Cox, Leach’s Crown Law, 82; 2 Hawkins’ P. C. 342; Hex v. Green et al., 1 Moody’s Crown Cases, 23; The State v. Delue, 1 Chandler’s Rep. (Wis.) 166; Smith v. The State, 8 Ohio, 294; Vanvalkenburg v. The State, 11 Ohio, 404; Hall v. The State,. 20 Ohio, 7; Davis v. The State, 7 Ohio, 206; Crim. Code,, secs. 92, 168.
    Under the section of the constitution referred to (art. 1,. sec. 10), we submit that a person cannot be charged in an indictment for one offence, and tried, convicted, and punished for a distinct and different one from that described in the indictment. We admit that, where an indictment, good for murder in the second degree, also contains all the requisites-of an indictment for-manslaughter, the accused may be convicted of that crime. But the indictment in this ease is not of that character. The words “ purposely and maliciously,”' as used in this indictment, either singly or as a phrase, and the term “ unlawfully,” as used in the definition of manslaughter, are not convertible terms. One may purposely kill another in self defence and be guilty of no offence. And one may maliciously kill another and be guilty of no crime. Eor example : A. may entertain malice against B. and go in search of him with intent to murder B., but when he finds B. the latter is in the act of murdering A.’s wife, to prevent which it is absolutely necessary for A. to kill B., and he does .so, and thereby saves her life. A. would not be guilty of an unlawful homicide.
    If “ purposely and maliciously,” as used in defining murkier in the second degree, and “ unlawfully,” as used in defining manslaughter, had been convertible terms, the legislature would not have used one in defining one offence, and the other in defining another offence, but would have used the same term in defining both; and hence, the necessity, in .an indictment for either offence, of using the precise words of the statute descriptive of the crime. See authorities cited above.
    If the views we have expressed are correct, then, as to homicide, section 168 of the criminal code is unconstitutional.
    3. The court below erred in admitting the testimony of Smith Davidson in reference to dying declarations of the deceased, in which he states that the deceased said, in speaking of the shooting, that “ it was done without any provocation on his part.” The objection to this is, that it was only the opinion of the deceased. His declarations were admissible in evidence only so far as they stated facts. It was for the jury to determine, from the facts proven, whether he was at fault. 1 Greenl. Ev., sec. 159: Wharton’s Am. Grim. Law, sec. 678; 1 Phil. Ev., p. 241; 1 Cranch, 115.
    4. As to the questions allowed, on cross-examination, to be asked Rike, Thomas, and Lockert, and their answers thereto. Those questions and answers were incompetent and inadmissible. 1 Greenl. Ev., secs. 372, 373, 375, 449, 454, 455, 457, 458, 461, 54, 131; 1 Phil. Ev., p. 18, note 8 (5th Am. .Ed.), 644, marg. p. 766; Jackson v. Osborn, 2 Wend. 455; Newcomb v. Griswold, 24 N. Y. 298; King v. Inhabitants, etc., 8 East, 77; People v. Herrick, 13 Johns. 82; Hilt v. Galvin, 14 Johns. 182; Smiley v. Dewey, 17 Ohio, 156; Craig v. The State, 5 Ohio St. 605; Bucklin v. The State, 20 Ohio, 18, 19, 20; Code, sec. 139; S. & C. 417, sec. 41; Clark v. Irvin, 9 Ohio, 131; 3 Greenl. Ev., sec. 25; Gandolfo 
      v. The State, 11 Ohio St. 114; Griffin v. The State, 14 Ohio St. 55; Wharton’s Am. Orim. Law (6th Ed.), sees. 636, 638; State v. Johnson, Winston’s Law Rep. (N. C.), 152.
    The examination of these witnesses was illegal. The facts sought to be proven were not evidence; and, if evidence at all, not competent for the purposes for which they were offered ; and, if competent, the records were the only proper evidence of the facts.
    5. The court below erred in refusing to permit the witness Thomas, who had a conversation with Fisher an hour after he received the Avound from which he died, to state what was said by Fisher, in that conversation, as to the manner in which he received the wound. 1 Greenl. Ev., secs. 156, 159, 213; Aveson v. Lord Kinnaird et al., 6 East, 188, 195, 196; Wright v. Littler, 3 Burrows, 1244, 1255 ; Higham v. Ridgway, 10 East, 109; Peace v. Jenkins, 10 Iredell (N. C.), 355; 1 Taylor on Ev. (5th Ed.), p. 635, sec. 646; Wilcox v. Duncan, 3 Ind. 146; S. & C. 1139, 1140: 1 Phil. Ev. 247, marg. 304.
    6. The court erred in permitting the State to give evidence of the character of the defendant after the commission of the offence. 11 Ohio St. 117, 118; 20 Ohio, 22, 25; 5 Ohio St. 607; 1 Greenl. Ev., secs. 561, 54, 161; Winston’s Law Rep. (N. C.) 152; 1 Phil. Ev. (5th Am. Ed.) 644, marg. 766; Wharton’s Am. Crim. Law (6th Ed.), sec. 638.
    7. The court erred in not permitting the defendant to prove that, at the time and place of the homicide, Mrs. Clark kept a public house to which young men were in the habit of resorting. The object of this proof was to show that the defendant was not in the commission of an unlawful act in being upon the premises..
    
      F. B. Pond, attorney-general, for the State.
    
      Thompson & Honk, also for the State:
    As to the questions put to Rike, Lockert, and Thomas. They Avere competent and admissible on cross-examination. Greenl. Ev. 442, 455, 449; Roscoe, 181, 182; Rex v. Ed
      
      wards, 4 T. R. 440; 1 Wharton, 817, 819; 20 Ohio, 87, 92 , 1 Starkie’s Ev., 170.
    As to the dying declarations of George Fisher and the offer to impeach the same by Thomas. So far as relates to-Fisher’s declaration that he gave no provocation, it is within the rule that such declarations, whether for or against the accused, are receivable. But the statement of Fisher proposed to be proved by Thomas was not admissible, because not within the rule of dying declarations. 1 Greenl. Ev., 156, 158, 159, 160, 161 (a), 162, 165, 190; Montgomery v. The State, 11 Ohio, 424; Ward v. The State, 8 Blackf. 101; 1 Wharton’s Crim. Law, sec. 682; Moore v. The State, 12 Ala. 764; Starkey v. The People, 17 Ill. 17; Donnelly v. The State, 2 Dutcher (N. J.), 463, 601; Rex v. Scaife, 1 Mood. & Rob. 551; 2 Lewin C. C. 150; S. & C. 416, sec. 39; Wharton on Homicide, 306, 311, 312; Runyon v. Price, 15 Ohio St. 1; King v. Wicks, 20 Ohio, 87; McPherson v. The State, 9 Yerger, 279; Broom’s Maxims, 97 (127).
    As to Baumann’s testimony that since the difficulty he had heard that Wroe had been a good boy, but had been going in bad company, and got to be fast, we rely on the case of The Commonwealth v. Sackett, 22 Pick. 394, and Wharton’s Crim. Law (4th Ed.), 638.
   White, J.

Counsel for plaintiff in error now assign as a ground for reversing the judgment against him, that the-court erred at the March term, 1870, in overruling the motion for his discharge.

A conclusive answer to this claim is, that the action of the court in regard to the motion to discharge, is not properly before us. The record of the proceedings upon the former' indictment forms no part of the record of the proceedings on the indictment on which the plaintiff was convicted; and the fact that the clerk has united the proceedings of the two cases in one transcript, gives them no different legal effect from what they would have, if they had been authenticated separately.

2. It is claimed by the counsel of the plaintiff in error that on an indictment for murder in the second degree, the accused cannot, under the laws of this State, be convicted of manslaughter.

This claim rests on the idea that an indictment for murder in the second degree does not contain all the elements of manslaughter as defined by statute. It is said that to constitute manslaughter, the homicide must be unlawful; ” and that this word, though used in the statute, is not used in the indictment. It is admitted that the indictment contains a good charge of murder in the second degree. To constitute murder of this degree, it is essential that the homicide be committed purposely and maliciously; ” and, if so committed, it is necessarily unlawful. Otherwise, a person could be guilty of murder in the second degree, and yet the homicide, of which he was guilty, be lawful.

Section 39 of the act defining the different degrees of homicide, plainly shows the claim of the plaintiff to be without foundation. 1 S. & O. Stat. 416.

3. There is no valid objection to the admission of the evidence of Smith Davison as to the dying declarations of the deceased. The declaration of the deceased, in speaking of the fatal wound, that, “ it was done without any provocation on his part,” is objected to as being mere matter of opinion. Whether there was provocation or not, is a fact, not stated, it is true, in the most elementary form of which it is, susceptible, but sufficiently so to be admissible as evidence.

In Rex v. Scaife the declaration of the deceased was: “ I don’t think he would have struck me if I hád not provoked him.” This was received to prove the fact of provocation on the part of the deceased. 1 Moody & Rob. 551.

4. The questions to Rike, Thomas, and Lockert were allowed to be put under the latitude of cross-examination. A similar mode of interrogation has often been allowed for the purpose of aiding the jury in judging of the character of the witness from his own voluntary admissions. 2 Phillips on Ev. ch. 10, sec. 2, p. 946; 2 Russell on Crimes, oh. 5, secs. 3, 925, 931; 1 Starkie’s Ev., *p. 190.

Roscoe states, that questions with regard to particular facta tending to degrade the witness, and affect his character and credit, may be put to him on cross-examination, even though irrelevant to the matter in issue; but the party putting them must be satisfied with the answers given by the witness, and cannot call witnesses to prove those answers false. Roscoe’s Grim. Ev., *p. 181.

In the late work of Taylor on Evidence, the statement of the rule is to the same effect. 2 Taylor’s Ev. sec. 1293.

In Rex v. Clarke, on the trial of the defendant for an assault with intent to commit a rape, the prosecutrix, on cross-examination, was allowed to be asked, whether she had not been sent twice to the house of correction, upon charges of having stolen money from her master several years ago. 2 Starkie’s R. 214-216.

In Yewin’s case, on the trial of the defendant for larceny, the principal witness, an apprentice of the defendant, was-allowed to be asked, on cross-examination, whether he had not been charged with robbing his master, and whether he had not afterwards said he would be revenged of him, and-would soon fix him in jail ? He denied both. The prisonei-’scounsel then proposed to prove, that he had been charged with robbing his master, and’ had spoken the words imputed to him. It was ruled that his answer must be taken as to-the former; but that, as the words were material to the-guilt or innocence of the prisoner, evidence might be adduced that they were spoken by the witness. 2 Campb. R. 638.

In a note to Rex v. Pitcher (1 Carr. & P. 86, 11 Eng. C. L. 323), a number of cases are given illustrating the practice-in the English courts in regard to this mode of examination. It is there said, that “ In practice, the asking of questions to-degrade the witness is regulated by the discretion of the learned judge, in each particular case.” In one of the cases-there referred to, the counsel for the prisoners, who were indicted for highway robbery, was allowed to ask a witness, who stated that he had been a constable, whether he had not been turned out of office for misconduct towards a prisoner.

In Brandon v. The People (42 N. Y. R. 265), the defendant was tried upon an indictment for larceny. Evidence was given tending to prove the commission of the offence, and the people rested. The defendant was herself examined as a witness, and denied the commission of the offence. On cross-examination the following question was put to her by the district attorney : “ Have you ever been arrested before for theft?” The objection to the question was overruled, and the witness answered in the affirmative. The defendant was convicted, and the conviction affirmed by the court of appeals. Hunt, J., in delivering the opinion of the court, said it had been, the practice of the courts of that State, from a very early period, to permit questions of that character to be put to the witness, and for the purpose indicated. “ Its abuse,” he said, is guarded against in two modes. 1. By the privilege of the witness to decline to answer any question which may disgrace him, or may tend to charge him as a criminal. 2. By the power of the court, of its own motion, to prohibit an unreasonable or oppressive cross-examination.”

The same principle was recognized in the previous cases of La Beau v. The People (34 N. Y. 223), and The Great Western Turnpike Co. v. Loomis (32 N. Y. 127).

It is difficult to lay down any precise rule fixing the limits to which a witness may be cross-examined on matters not relevant to the issue. This must in a great measure rest in the sound discretion of the court trying the cause. Mayhew v. Thayer, 8 Gray, 172. Such questions may well be allowed, when there is reason to believe it will tend to the ends of justice; but they ought to be excluded, when a disparaging course of examination seems unjust to the witness, and uncalled for by the circumstances of the case. Great Western Turnpike Co. v. Loomis, supra.

In the present case no question of privilege arose, and the circumstances show no abuse of discretion in allowing the-questions to be asked.

The objection now made in argument, that the indictment and record ought to have been produced, was not- made at-the time the questions were put. Neither the attention of the' court nor of opposite counsel appears to have been called to the; manner of the proof; and if the objection could have been insisted on, it ought, to be available, to have been made at the time. As to the objection itself, see 2 Russ, on Crimes, p. 931.

The question in Newcomb v. Griswold, cited in argument (24 N. Y. R. 298), is different from the present. There is no question of actual conviction here, and the point whether the offence could be proved without the record, did not arise.

5. As to the overruling of the question put to the witness Thomas in regard to the deceased having made a different statement of the manner in which he received the wound. The statement proposed to be proved was neither a part of the res gestee, nor was it a dying declaration. It was therefore incompetent as original evidence. As impeaching testimony it was properly excluded under the rule laid down in Runyon v. Price, 15 Ohio St. 1. To admit it would, to some extent, afford a substitute to the defendant for the loss of cross-examination, .but it would deprive the deceased and the State of all opportunity of explanation.

6. The defendant gave evidence of good character prior and up to the time of the commission of the alleged offence. To rebut this evidence the prosecuting attorney was permitted to inquire and give evidence as to the bad character of the defendant a few months after that time.

“ Evidence of character is in the nature of hearsay, and the general rule in relation to that kind of testimony is, that it shall not be received if the hearsay be post litem motam. The reason for this is, that no man is presumed to be indifferent in regard to matters in actual controversy ; for when the contest has once begun, people generally take part on the one side or the other — their minds are in a ferment, and if they are disposed to speak the truth, facts are seen by them through a false medium. To avoid, therefore, the mischiefs which would otherwise result, all exparte declarations, even though made upon oath, referring to a date subsequent to the beginning of the controversy, are rejected.’ 1 Greenl. Ev., § 131. These remarks apply with equal force to evidence of the character of a person after a controversy, involving it, has commenced.” State v. Johnson, 1 Winston’s Law R. 151.

We think, upon principle, the evidence of the State as to the bad character of the defendant subsequent to the commission of the offence ought to have been excluded.

7. As to the questions which the defendant was not allowed to ask for the purpose .of showing that in entering the premises where the homicide occurred the defendant was not in the commission of an unlawful act, it is sufficient to say, we discover nothing in the record rendering that fact material to any matter in issue. There was no evidence of the State which it tended to rebut, nor could it tend to justify or excuse the crime charged. The unlawful act with which the defendant was charged, was the act causing the homicide.

We deem it unnecessary to remark upon the other objections made. As there must be a new trial, the objection to the form of the verdict, and to the omission of the court to give to the jury, before the argument,.one of the instructions asked, will doubtless be obviated on another trial.

We will merely add, that we find nothing in the charge, of which the plaintiff in error can complain.

Judgment reversed for error in admitting evidence offered by the State as to bad character, and cause remanded for a new trial.

Scott, C.J., and Welch, Dat, and McIlvaine, JJ., concurred  