
    Tabler v. The State of Ohio.
    1. The presumption that a married woman who commits a criminal act in the presence of her husband acts under his coercion, is only prima facie; and when it is shown that she acted voluntarily, and not by coercion, she is liable to a prosecution.
    2. On a trial, under an indictment for foeticide containing two counts, in one of which it is charged that the crime was committed by means of an instrument, and in the other, by administering a drug, it is not error for the court to refuse to charge that if the destruction of the foetus was the combined effect of the instrument and the drug, and was not caused solely by either, there can be no conviction.
    3. A general verdict of “guilty” upon such indictment is not bad for repugnancy
    Eeror to the Court of Common Pleas of Logan county.
    At the November term, 1877, of the Court of Common Pleas of Logan county, the plaintiff in error, who was jointly indicted with her husband, under the act of April 18,1867 (64 Ohio L. 135), for the crime of destroying a vitalized foetus, was convicted and sentenced to imprisonment in the penitentiary.
    The indictment contained two counts: in the first of which it was charged that the foetus was destroyed by using a certain instrument, and in the second, by using certain poisonous drugs.
    Upon the separate trial of the plaintiff' in error, the state offered evidence tending to prove that the foetus was destroyed by means of the instrument, as charged in the first •count, also by means of the drug, as charged in the second count, and also by the combined effects of the use of the instrument and the drug.
    The evidence also tended to prove, that before the plaintiff in error committed the acts charged against her, she was told by her husband to go ahead, that she might as well havé the money as anybody else; that the plaintiff in error, with her husband, lived in the house where the alleged crime was committed, that at the time of its commission the husband was about the house, but not in the room where the acts were done by the wife. All the testimony in the case related to the same foetus.
    There was also testimony offered tending to prove that all the acts and doings charged against the plaintiff in error were' done by her voluntarily, and not by the coercion of her husband.
    The court refused to charge the jury, as follows: “If the defendant was a married woman, and did the acts alleged in the indictment when her husband was present at the doing of such acts, the law presumes she acted under his coercion and she can not be convicted, even though, in fact, she voluntarily did the acts.”
    The court also refused to charge the jury as follows: “ If the abortion was the result of drugs and instruments combined, and was not solely the result of either, the defendant can not be convicted under this indictment.”
    By a general verdict, the plaintiff' in error was found guilty as she stood charged in the indictment.
    After verdict, a motion for a new trial, on the grounds that the verdict was “ against the law, and against the evidence, and against the charge of the court, and that the court erred in refusing to charge the jury as requested by the defendant, and erred in charging the jury, and for other errors apparent in the proceedings,” was overruled.
    To all matters now alleged for error, exceptions were properly taken by plaintiff in error.
    
      William Lawrence, for plaintiff in error:
    There are three grounds for reversing the sentence :
    I. The court of common pleas erred in holding that a party guilty of killing a vitalized fcetus, by the combined agency of an instrument and poisonous drugs, can be convicted without an indictment charging such means, but on an indictment with two counts, one charging a killing by an instrument, and another by drugs.
    This is decided in Com. v. Brown, 14 Gray, 410; Wharton Crim. Law, §390; Com. v. Eaton, 15 Pick. 273 ; a work on Criminal Abortion, by Storer & Heard, Boston, 1868.
    Each couut of an indictment must contain all the allegations requisite to constitute a crime. 1 Ohitty Crim. Law, 249, 640: 2 Stra. 845; 1 Salk. 384; 1 Cowp. 276.
    The right of the accused to have, in each count of the indictment, a complete charge of crime, and description of the means by which it is accomplished, is secured (1) by the principle of the common • law and the constitution,, which require it to state “ the nature and cause of the accusation ” (art. 1, §10); (2) by the common-law rules as to certainty in criminal pleadings; (3) by those which define-variance, and require that the allegata et probata shall correspond ; and (4) by the common-law principle and constitutional provision, which give security against being “ twice put in jeopardy for the same offense ” (art. 1, § 10), and by the doctrine of res adjudieata.
    
    „(1), (2). As to certainty in stating the “ nature and cause of the accusation.” Greenwood v. State, 4 Ohio, 387 ; Hess v. State, 5 Ohio, 1-12 ; Anderson v. State, 7 Ohio, pt. 2, 250; Davis v. State, 7 Ohio, pt. 1, 205 ; Lougee v. State, 11 Ohio, 68 ; Lamberton v. State, 11 Ohio, 282 ; Dillingham v. State, 5 Ohio St. 280; Fonts v. State, 8 Ohio St. 98-114; Roscoe Crim. Ev. 99, 651; 1 Wharton Crim. Law (5th ed.), 285, 629 ; Cowp. 683; 5 Mod. 96; 2 Bishop Crim. Pro. (2d ed.), 514, 517, 659.
    (3) . As to variance. 1 Bishop Crim. Pro. (2d ed.), §§ 485, 886, 514, 517, 659 ; 2 Bishop Crim. Pro. 395, 514, 517, 559 ; 1 Bishop Crim. Law (6th ed.), 1052, etc.; Roscoe Crim. Ev. 651; 1 G-reenl. Ev. 65 ; 1 Chitty Crim. Law, 293; 2 Russel Crimes, 711; 1 Stark. Ev. (5th Am. ed.), 374; 1 Wharton Cr. Law (5th ed.), 592, etc., 629; Archbold Crim. Pfac. and PI. (Waterman’s notes), 88.
    (4) . Twice in jeopardy. 1 Bishop Crim. Law (6th ed.), 1048-1070 ; State v. Behimer, 20 Ohio St. 572-576.
    The verdict is legally and physically impossible; that the complete, perfected crime of killing a foetus was by means of an instrument, and that the same foetus was, at the same time, completely killed by a poisonous drug! Of this it may be said, as in State v. Gray, 21 Mo. 492 : “ This is an impossibility. It is, on its face, false, and must be bad.”
    II. The court of common pleas erred in holding that a married woman may be convicted of this crime, on proof that the acts constituting it were done in the presence of her husband.
    1. This is so on authority. Davis v. State, 15 Ohio, 72 ; Rex v. Price, 8 Car. & P. 19; Rex v. Knight, 1 Car. & P. 116; Com. v. Trimmer, 1 Mass. 476; Anon., 2 East P. C, 559; Rex v. Tolfree, 1 Moody, 243; Reg. v. Matthews, 1 Den. C. C. 596; Temp. & M. 337 ; Rex v. Archer, 1 Moody, 143; S. C., 2 Eng. Crown C. 146; Com. v. Neal, 10 Mass. 152; Roscoe Crim. Ev. 879; Hale’s Pleas Crown, ch. 47; 4 Black. Com. 28; 1 Greenlf. Ev. §28; 1 Hawk. cb. 1, §§ 1, 2; 1 Wharton Cr. L. (5th ed.), 71, 72; 1 Russel on ■Crimes, by Greaves, 18-25, note. The wife is excused if within the range of the husband’s influence, without an actual presence. Com. v. Burk, 11 Gray, 437 ; Com. v. Welch, 97 Mass. 593; Note to Rex v. Knight, 1 Car. & P. 116; Connolly’s case, 2 Lewin, 229 (in this case, the indictment ■charging a joint act by husband and wife, the husband’s presence, actual or constructive, is conclusively averred by ■the state, aud no proof otherwise is required); Com. v. Trimmer, 1 Mass. 476; King v. Archer, 2 Eng. Crown Cases, 146 ; 1 Moody, 143.
    2. This is so on reason in Ohio. The statute recognizes the influence of the husband over the wife, and requires that deeds for the conveyance of real estate shall be acknowledged before an officer, “ separate and apart from her husband.” 29 Stat. 346; 1 S. & C. 463, § 2. She is incapable of contracting, and is generally, for all legal purposes, deemed to have no separate existence. It is not the business of courts to change this policy.
    III. The verdict is bad, for repugnancy in its finding.
    1. It finds the physical and legal impossibility, that the •same foetus was entirely killed by an instrument, and then -entirely killed by administration of drugs. A verdict, as its derivation imports, must — verum dicit — speak truth. This, in all cases, is due to the reputation of parties accused, to the law, and to truth. And so the law requires. 1 Bishop Crim. Pr. (2d ed.), 1005 ; Archbold Crim. Pl. and Ev. (13th Bond, ed.), 146 ; 1 Chitty Crim. L. 637, 248 ; Co. Lit. 226-228; Hawk. B. 2. c. 47 ; 4 Black. 360 ; Bac. Abr., Verdict.
    Chitty says : “ The law will not admit of absurdity and contradiction in legal proceedings.” Crim. Law, 231, 232 ; Hawk. P. C. c. 25, § 62 ; Bac. Abr., Indictment, G-. 1; Burn’s Just., Indictment; 9 Cro. C. 0. 41; 2 Leach, 660. Hence, if three be charged with conspiracy or riot, a verdict •of guilty as to one, and not guilty as to two, is repugnant, legally impossible, and invalid. 1 Chitty Crim. Law, 641. In such cases as this, the verdict should specify the count on which the jury find guilty, and on the other find not guilty. Wilson v. State, 20 Ohio, 29; Schoonover v. State, 17 Ohio St. 297; Bailey v. State, 4 Ohio St. 440; Hurley v. State, 6 Ohio, 399.
    2. This is a legal right of the accused, so that if a new trial be granted on a verdict of guilty on one count, a verdict of not guilty on the other may bar a second prosecution as to that. 1 Bishop Crim. Law (6 ed.), 1004, 1005; Campbell v. State, 9 Yerger, 333; State v. Kittle, 2 Tyler, 471; Esmon v. State, 1 Swan. (Tenn.), 14; States. Kattleman, 35 Miss. 105 ; State v. Dark, 8 Blackf. 526 : Lithgow v. Com., 2 Va. Cas. 297; State v. Martin, 30 Wis. 216; State v. Belden, 33 Wis. 120; State v. Hill, 30 Wis. 416; People v. Gilmore, 4 Cal. 376; State v. Smith, 53 Mo. 39; State v. Malling, 11 Iowa, 39; State v. Ross, 29 Mo. 32; Major v. State, 4 Sneed, 597 ; Slaughter v. State, 6 Humph. 410; Livingston v. Com., 14 Grat. 592; State v. Flanigan, 6 Md. 167; State v. Tweedy, 11 Iowa, 350. The general rule should not yield to exceptional cases. Jarvis v. State, 19 Ohio St. 585; Leslie v. State, 18 Ohio St. 390; State v. Stanton, 1 Ired. 424; State v. Com., 3 Hill (S. C.), 239; 
      State v. Behimer, 20 Ohio St. 578; Bailey v. State, 26 Ga. 579 ; Mitchell v. State, 8 Yerg. 514.
    3. It will be necessary in many cases with a view to determine the punishment or penalties. Buck v. State, 1 Ohio St. 61.
    
      H. G. Dickinson, also for plaintiff' in error.
    
      G. W. Emerson, and Isaiah Pillars, attorney-general, for the state:
    I. The presence of the husband is only prima facie evidence of coercion, and the presumption may be rebutted. 1 Bishop Crim. Laws, 362 (6 ed.); Eoscoe Grim. Ev. 985-(7 ed.); 1 Wharton Crim. Law, 75 (7 ed.).
    “If, in fact, the woman was not only the active one, but acting from her own free and uncontrolled will, then, although he was present, she is to be convicted.” 1 Wharton, sec. 362 (7 ed.), and cases there cited; Eussel on Grimes (3 Eng. ed.), 120.
    The logical sequence of the law, as claimed by plaintiff, would be that no married woman ever could be convicted, or even indicted, for any crime committed by her in her husband’s presence, actual or constructive, which is not true. 1 Bishop, 363; 1 Wharton, 67; 15 Ohio, 82.
    “ In crimes that are mala in se and prohibited by the law of nature, as murder and the like, there is not even a presumptiou of coercion.” 4 Blaekstone Com. 29.
    II. The unlawful killing of the foetus is the substance of the crime charged, and the manner of the killing, whether by instruments or drugs, is simply matter of description.
    As to variance between the indictment and evidence, the Ohio criminal code provides: “ When there appears to be a variance between the statement in indictment and the evidence, in the name or description of any matter or thing whatsoever, such variance shall not be deemed ground for an acquittal, unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” Crim. Code (Laws, 1877, p. 334), part 4, title 2, chap. 4, sec. 5; 22 Ohio St. 203.
    There was no such finding by the court below, and in fact there was no prejudice to the defendant whatever.
    The preceding section of the code further provides that no indictment shall be deemed invalid “for any defect which does not tend to prejudice the substantial rights of the ■defendant upon the merits.” Ohio L. 1877, p. 334, sec. 4.
    The courts are bound to carry out the spirit of the above provisions.
    If the use of the instruments was not the sole cause of the ■death of the foetus, but only contributed thereto, by combining with some other cause, even although death would not have occurred without the joint operation of both ■causes, yet the one who used the instruments would be guilty just the same as if the instruments had been the sole cause of the death. The same would be true as to the use of drugs. 2 Bishop Crim. Law, 637-639 (7 ed.), and cases there cited; Commonwealth v. Fox, 7 Gray, 585; 2 Wharton, 941.
    With much stronger reason and justice would the above apply, if the same person produced both causes by the joint operation of which death ensued.
    In any event either count of the indictment would be good.
    One good count will support a general verdict of guilty, other counts being bad. Stoughton et al. v. State, 2 Ohio St. 563.
   McIlvaine, J.

Did the court err in refusing to charge as requested, that if the alleged criminal acts were committed by the wife in the presence of her husband “ the law presumes she acted under his coercion, and she can not be convicted, even though in fact she voluntarily did the acts ? ”

It is well settled in this state, that it is not error to refuse to charge a proposition as requested, if as a whole it does aiot state the law correctly. Inglebright v. Hammond, 19 Ohio, 337; French v. Millard, 2 Ohio St. 44; Walker v. Devlin, 2 Ohio St. 593; Eckels v. The State, 20 Ohio St. 508.

As a general rule, it is a good defense, where a married woman is charged with crime', to show that the alleged criminal act was committed by her under the coercion of' her husband. And we have no doubt, the offense charged against the plaintiff in error was within the rule. And further, it is a presumption of law, that, in cases within the-rule, where the act of the wife is done in the presence of her husband, it is done under the constraint and coercion * of the husband. But such presumption is only prima facie. It may be rebutted; and when it is shown that she acted voluntarily, although the husband was present, she is liable' to punishment, as if she were a feme sole.

It was a part of the proposition which the court below refused to give, that the plaintiff in error was not liable for an act done in the presence of her husband, although in fact she acted voluntarily and not by the coercion of the husband. The refusal was proper, as such doctrine is not only contrary to reason, but is opposed by the great weight, if not the entire current, of authorities. 1 Whar. Crim. Law, 71 1 Bishop’s Crim. Law, § 358 et seq; Roscoe’s Crim. Ev, 985 ; 11 Cox’s Crim. Cases, 99; 113 Mass. 71.

The next question is, Did the court err in refusing to charge that “ If the abortion was the result of drugs and instruments combined, and was not solely the result of either, the defendant can not. be convicted under this indictment?”

The statute makes foeticide, by administering a drug, or by using an instrument, a crime; and makes no express provision where the destruction of the foetus results from their combined effect. It by no means follows, however, that,, where the destruction of the 'foetus results from their combined operation, no crime under the statute, is committed. Each of the counts in this indictment charged the samefoeticide. In the first it was charged to have been caused by means of an instrument, and in the second, by means of a drug. That these counts were properly joined is not disputed. Whether a third count, charging the destruction of the foetus by the combined use of an instrument and a drug, would have been good, may be seriously doubted; no such means being named in the statute: but if good, it conclusively shows, that under one or both of the counts of this indictment a conviction might be had, upon proof that the foeticide was the result of the combined effects of both causes. It is only necessary now, however, for us to show, that it was not essential to a conviction under either of the counts, that the destruction of the foetus was caused solely by the means described in such count.

Let us suppose that the indictment had contained only the first count charging the crime to have been committed by the use of an instrument, and that the testimony had shown that the health of the foetus or mother had been impaired by drugs administered by the plaintiff' in error or by some other agency, and that under such circumstances the instrument had been used by her so as to destroy the foetus in its enfeebled condition, or to hasten its destruction in case the drug had produced a mortal sickness; it can not be doubted, that a conviction, under such count, would have been proper, although the destruction was the combined result of the instrument and the drug, or in other words, was not caused solely by the use of the instrument.

And mutatis mutandis, if the indictment had contained only the second count.

The views here expressed are fully sustained by all the authorities which treat of the subject of combined causes. See 1 Hale’s P. C. 428 ; 2 Alabama, 275 ; 2 Allen, 136; 3 Cush. 181; 2 Bish. Cr. Law (6th ed.), §§ 638, 639.

Thus it is made quite clear, that the court properly refused to charge, that if the abortion was not solely the result of one or the other of the causes named, there could be no conviction under- the indictmenr.

It is also contended, on behalf of the plaintiff' in error, that the verdict is bad for repugnancy. The argument, in support of this point, is that the truth of the “ verdict is a physical and legal impossibility; that the same foetus was entirely killed by the use of au instrument, and then entirely killed by the administration of drugs.”

We have already shown that it was not essential to conviction, that the fcetus should have been destroyed solely by the means described in one or the other of the counts. The gravamen of the charge, in each count, was the unlawful destruction of a vitalized fcetus, not the employment of a particular means for that purpose. In contemplation of law, each of said counts charged a distinct and substantive offense. And, further, in contemplation of law, the general verdict was a response to the counts severally. So, that, technically, there is no repugnancy in the verdict. The alleged inconsistency is not found upon the face of the verdict, nor upon the indictment and verdict when construed together. The sole suspicion of repugnancy arises on the fact set forth in the record, that there was no evidence in the case tending to show that more than one fcetus was destroyed; but all the testimony related to one fcetus.

Now, the point under consideration is not that the verdict was against the evidence. That question was settled by the overruling of the motion for a new trial, and we do not have the evidence before us. The question is, is the verdict repugnant? This question must be answered by reference to the several counts and the verdict; and from them no repugnancy is apparent.

Indeed, it is difficult to understand how it is possible that a general verdict of “ guilty” can be repugnant, where the several counts in the indictment are not only properly joined, but also are of such a character, that it would be an abuse of discretion to compel the prosecuting attorney to elect upon which the trial should proceed. We have not seen, and doubt whether there can be found, a case where the same criminal transaction is set out in different counts, for the purpose of securing a correspondence between the allegations and the proofs, in which a general verdict has’been held to be repugnant, although the circumstances of the transaction, as stated in the different counts, be wholly irreconcilable.

The fact that it appeared in the testimony that both counts related to the same feticide required the court to pronounce but one sentence. This was done, and the plaintiff in error has not been prejudiced. It may be said that this view is technical. So it is, but technical rules should be adhered to when justice is thereby promoted and no injury inflicted.

It is quite clear, from this record, that the plaintiff iu error was guilty of the unlawful destruction of a vitalized fetus, and that its destruction was the combined effect of two causes, both of which were put in operation by the plaintiff' in error, and justice requires that she should suffer the penalty, and this is done by strict adherence'to the forms of criminal procedure. 18 Ohio St. 444; 5 Wheat. 184; 1 Harris (Pa.), 634; 3 Wharton, O. L., § 3182.

Judgment affirmed.  