
    Dresback v. The State.
    1. Where on a trial for murder the question was whether poison was administered to the deceased through the negligence of a physician or intentionally by the accused, and the state in rebuttal gave in evidence the testimony of a druggist with whom the physician .was accustomed to deal, to the effect that the physician was skillful and careful in the use of medicines, the accused has the right to cross-examine the witness as to the extent and character of the dealings from which his opinion is formed.
    2. On the trial of an indictment for murder in the first degree, charging the accused with purposely killing another by administering poison, the evidence tending to show no other grade of offense, it is error to charge the jury to the effect that if they find the accused guilty their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter. And where the verdict is returned for a lower grade of homicide than murder in the first degree, a new trial should be granted, where it appears from the evidence that a verdict of acquittal might have been rendered had the jury been properly instructed.
    
      Error to the Court of Common Pleas of Fairfield county.
    The plaintiff in error, Joseph J. Dresback, in April, 1881, was indicted for the murder of his wife, Emily Dresback, in September, 1874, by the administration of poison. The evidence given in support of the chárge was circumstantial, and tended to show that the death of the wife was caused by strychnine. It appeared from the evidence that the day before her death the accused obtained from Doctor Turney three powders and some pills for his wife. And evidence was given tending to show that instead of the medicine thus obtained he had given his wife strychnine to be taken by her as the medicine sent by Doctor Turney. The defendant gave evidence tending to prove that the same powders and pills which he obtained from Turney he gave to his wife to be taken by her; and that if the same contained strychnine it was due to negligence of Turney in preparing the medicine.
    On the trial, at the October term, 1881, after the defendant had rested his case, the state, to rebut evidence introduced by the defendant, introduced the testimony of certain witnesses tending to show that Doctor Turney was not addicted to the use of intoxicating liquors, and was a careful and prudent physician and well skilled in the use of medicines; and among other witnesses in that behalf called John L. Krimmel, who testified, that, he had been in the drug business in Circleville for nineteen years; that Doctor Turney was a customer at his store, and that his standing was that of a good and careful physician, and that he had never known him to be under the influence of liquor, and that he had filled prescriptions for him very often.
    Thereupon the defendant by pertinent questions, on cross-examination, offered to prove by said witness, that said Turney had sent prescriptions to him at his drug-store to be filled, in the year 1874, and other years before and after, which if they had been filled as therein directed, would have killed the patient ; and that he had returned them to Turney for correction because the same contained mistakes and were improper, and that said Turney admitted said mistakes and corrected said prescriptions; to which said questions and testimony the prosecuting attorney objected, and tbe court sustained the objection. To which ruling the defendant excepted.
    The bill of exceptions embodies all the evidence, as well as the charge of the court.
    The court, among other things, charged the jury as follows: “ The state of Ohio, in order to make out its case against the defendant, must show:
    “ 1. That Emily was killed at or about the time specified in the indictment, or at least some time before the finding thereof by the grand jury.
    “ 2. That the defendant killed her.
    
      “ 3. That the defendant killed her purposely and maliciously.
    
      “ 4. By purposely administering to her, or causing her to take, poison with intent to kill her.
    “ These four elemental and material propositions must be proven and established to the satisfaction of the jury.” *-»*** -x- *
    “Now, if you are satisfied beyond all reasonable doubt that Emily Dresbaek was killed, then you have reached the first elemental and necessary conclusion in the direction of a conviction of the defendant, for if you are satisfied that she is not killed, that would be the end of your deliberations, and you would have to render a verdict of not guilty.
    “ 2. What do you say, on your oaths, as to whether the defendant killed Emily Dresbaek? and (3) whether he did it purposely and maliciously ? and (4) by administering poison, or causing it to be administered, purposely and with intent to kill ? And these three latter propositions, as well as the first, must be established affirmatively, and beyond all reasonable doubt, before the State is entitled to a verdict; and, failing in any one of them, your verdict must be for the defendant.” The court also told the jury they might find the defendant not guilty of murder in the first degree, but guilty of murder in the second degree, or of manslaughter merely.
    The conclusion of the charge was as follows:
    “If you find the defendant guilty of murder in the first degree, you will say, we, the jury, find the defendant guilty of murder in tlie first degree, as lie stands charged in the indictment.
    “ If you do not find him guilty of that degree of murder, but guilty of murder in the second degree, you will say, we, the jury, find the defendant not guilty of murder in the first degree, but we, on our oaths, find him guilty of murder in the second degree.
    “ If you find him not guilty of either of the degrees of murder, but guilty of manslaughter, then say so in your verdict.
    “ If the state wholly fails, you will say simply, not guilty.”
    The jury returned the following verdict:
    “We, the jury impanneled, sworn and charged in the above entitled cause, upon our oaths do find the defendant, Joseph J. Dresback, guilty of murder in the second degree, and not guilty of murder in the first degree as he stands charged, in the indictment.”
    A motion for a new trial having been overruled, sentence was ’ pronounced on the verdict; and the present petition in error is prosecuted to reverse the judgment.
    
      Brasee c& JDrmlde, Martin <& MeWeill and J. G. Beeves, for plaintiff in error.
    
      W. J. Gilmore and B. H. Bost/wiok, for defendant in error.
   White, J.

In the numerous assignments of error in this case there are only two that we find well founded.

The first is as to the refusal of the court to allow the cross-examination of the witness, Iirimmel, by the accused. The witness, on the part of the state, had, in effect, testified that Doctor Turney had been a customer at his drug store, that he had very often filled prescriptions for him, and that he was a good and careful physician. It was proposed, by the cross-examination, to show to the jury the value of the testimony in chief, by showing that the dealings with the doctor, to which the witness had referred in chief, did not justify the professional character for care and skill that the witness had given him. This testimony, we think, the accused had a right to introduce to the jury on the issue upon which it was intended to bear. Martin v. Elden, 32 Ohio St. 282.

The second assignment relates to the charge as to the duty of the jury with respect to the different degrees of homicide. The charge, in effect, told the jury that their duty would be fulfilled, in case .they found the accused guilty, by returning a verdict for murder in the first or second degree, or for manslaughter. The evidence against the accused tended to prove that he purposely killed his wife by administering to her poison ; and it tended to prove no other grade of offense. If the jury found him guilty, it was their duty to find him guilty of murder in the first degree ; but if the charge Avas not proved he was entitled to an acquittal. The court, however, instructed the jury that they might, consistently with their duty, find him guilty of murder in the second degree, or of manslaughter.

This instruction is sought to be justified by the ruling in Robbins v. The State, 8 Ohio St. 131.

As was said by this court, in Adams v. The State, 29 Ohio St. 415: “It was not intended by the ruling in Robbins’ case to deny that it is the right and duty of the court to instruct the jury upon all questions of law arising before them in the case, nor to relieve the jury from the duty of receiving the law as given to them by the court.” 1

“ The principle of the ruling is, that the jury must not be imperatively required to render a verdict for a particular degree of homicide; nor must the instruction be such as to deny to them the power of rendering such verdict as their judgment and conscience dictate after being fully instructed as to their duty.”

The charge in question, in Robbins’ case, was held to be an invasion of the province of the jury; while instructing them as to their duty upon a given state of fact in a case, is no such invasion.

It is claimed, that the accused was not prejudiced by the erroneous charge. We have all the evidence before us, and cannot say so. The evidence was wholly circumstantial, and we are unable to say that the jury might not have acquitted him had they been properly instructed. As to this point, see Pliemling v. The State, 46 Wis. 516, 523; The State v. Mahly, 68 Mo. 315, 318.

Judgment reversed, new trial granted, and cause remanded.  