
    John S. Blackburn v. The State of Ohio.
    1. Where statements of a prisoner are given in evidence against him, the exculpatory parts thereof, as well as those which import guilt, are to be received as evidence, and it is the province of the jury, in the light of all the evidence in the case, to decide upon the truth or falsehood of such exculpatory parts ; and it is not error in the court so to instruct the jury, and to refuse to instruct them that they have no right to reject or disregard such exculpatory parts, unless there is some other evidence in the case showing them to be false, or unless they are so unreasonable or absurd, as to be, in the opinion of the jury, unworthy of credence.
    2. Neither fraud nor deception is a necessary ingredient in the act of administering poison, within the meaning of the first section of the crimes act. To force poison into the stomach of another; to compel another by threats of violence to swallow poison; to furnish poison to another, for the purpose and with the intention that the pérson to whom it is delivered shall commit suicide therewith, and which poison is accordingly taken by the suicide for that purpose; or to be present at the taking of poison by a suicide, participating in the taking thereof, by assistance, persuasion, or otherwise, although the party so present and participating at the time intends and agrees himself also to commit suicide — each and all of these are forms and modes of “administering poison,” within the meaning of the act.
    3. Although extrajudicial confessions alone are not sufficient to prove the body of the crime in cases of homicide, they may be taken and used for that purpose in connection with other evidence.
    4. Where the defense of insanity is set up on the trial of an indictment for murder, it is not error to the prejudice of the accused, to instruct the jury that the questions to be decided, as regards this defense, are these: Was the accused a free agent in forming the purpose to kill 7 was he at the time capable of judging whether that act was right or wrong? and did he know at the time that it was an offense against the laws of God and man 7
    5. Under section 151 of the criminal code (vol. 66, p. 09), the court is not bound to reduce instructions to writing unless requested so to do before the argument of the case to the jury, nor to read or deliver the charge when so reduced to Writing until after the close of the argument, if any argument is made.
    
      6. When a new trial is asked on the alleged ground that one of the jurors had previously expressed his opinion as to the prisoner’s guilt, the overruling of such motion will not be held erroneous, if the evidence of the fact of such expression of opinion is conflicting, or there is testimony tending to disprove it.
    7. Where, on the trial of an indictment for murder, the prisoner, for the purpose of proving that the deceased came to her death by suicide, offered to show that six years previous to her death, she was of a melancholy condition of mind, and predisposed to and threatened to commit suicide — Held: That it was error in the court to reject the testimony, the remoteness of the period to which it referred going merely to its weight, and not to its competency.
    Error to the Common Pleas of Ross county.
    The plaintiff was indicted for the murder of Mary Jane Lovell, and was tried and convicted- at the May term, 1871. The indictment contained six counts. He was found not guilty upon all the counts of the indictment except the fifth, and upon that count was convicted of murder in the .second degree, and sentenced to the penitentiary for life. The count upon which he was so convicted charges : . . “That the said John Samuel Blackburn, on the said twentieth day of March, in the year of our Lord one thousand eight hundred and seventy-one, in the county of Ross .aforesaid, contriving and intending one Mary Jane Lovell, unlawfully, willfully, purposely, and of deliberate and premeditated malice, to kill and murder, unlawfully, willfully, purposely, and of deliberate and premeditated malice, a large quantity of deadly poison, called strychnia, to wit, ten grains thereof, with a certain quantity of port-wine, did mix and mingle (he, the said John Samuel Blackburn, then and there well knowing the said strychnia to be a deadly poison), and that the said John Samuel Blackburn afterward, to wit, on said twentieth day of March, in the year of our Lord one thousand eight hundred and seventy-one, at the county of Ross aforesaid, the strychnia aforesaid, so, as aforesaid, mixed and mingled with the port-wine aforesaid, unlawfully, willfully, purposely, and of deliberate and premeditated malice, did administer unto the said Mary Jane Lovell, with the intent, then and there, that she, the-said Mary Jane Lovell, should take, drink, and swallow down the same, into the body of her, the said Mary Jane. Lovell; and the said strychnia, so, as aforesaid, mixed and. mingled with the port-wine aforesaid, so, as aforesaid, administered unto her, the said Mary Jane Lovell, by the said John Samuel Blackburn, the said Mary Jane Lovell did then and there, at the instance and solicitation of him, the' said John Samuel Blackburn, take, drink, .and swallow down, by reason and by means of which taking, drinking, and swallowing of the said strychnia, so mixed and mingled with the said port-wine as aforesaid, the said Mary JaneLovell then and there became and was mortally sick and distempered in her body, of which said mortal sickness and distemper the said Mary Jane Lovell, on said twentieth day of March, in the year of our Lord one thousand eight hundred and seventy-one, in the county of Ross aforesaid,, died; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said John Samuel Blackburn, her, the said Mary Jane Lovell, in manner and form aforesaid, unlawfully, willfully, feloniously, purposely, and of deliberate and premeditated malice, did then and there kill and murder, contrary to the form of the statute in such case made- and provided, and against the peace and dignity of the State of Ohio.”
    On the trial, there was evidence tending to prove that the-death of said Mary Jane Lovell was occasioned by suicide, and tending also to show that the prisoner furnished or gave to her poison, consisting of strychnia mixed with wine, to-be taken by her for that purpose, and by taking which the suicide was effected. There was also evidence tending to-show that the prisoner, by threats of violence or otherwise, forced her to swallow the poison, or forced it down her throat. The evidence likewise tended to show, that there was a mutual agreement between Mary Jane and the prisoner, that each should commit suicide by taking such poison, and that said Mary Jane, in pursuance of said agreement, either in the presence of the prisoner, and at the time the agreement was so made and the poison so furnished, or afterward and in the absence of the prisoner, took the poison and thereby caused her death. Some of the evidence so given consisted of statements made by the prisoner himself.
    One ground of defense insisted upon at the trial was, that at the time of the commission of the alleged homicide the prisoner was insane; and evidence was given tending to establish that defense.'
    For the purpose of showing that the deceased had committed suicide of her own accord, and without participation by him, the prisoner called a witness with whom the deceased had resided some six years prior to her death, and offered to prove by the witness that the deceased, while living with the witness, was of a melancholy disposition of mind, and was predisposed to, and had threatened to commit suicide. But the court rejected the evidence so offered, :and the prisoner excepted to the order rejecting it.
    At the close of the evidence, the counsel for the prisoner asked the court to instruct the jury, among other things, that they had no right to reject or disregard the exculpatory parts of the prisoner’s statements which had been given in evidence, unless there was some other evidence showing them to be false, or unless they were so unreasonable or absurd as to be, in the opinion of the jury, unworthy of credence. This instruction the court refused, and, instead thereof, instructed the jury, in substance, that the exculpatory parts of such statements, as well as those which import guilt, are to be received as evidence; and it is the province of the jury, in the light of all the evidence in the case, to decide upon the truth or falsehood of such •exculpatory parts.
    The counsel for the prisoner also asked the court to instruct the jury as follows: “Mere extrajudicial confessions .alone can not be used to prove the body of a crime, and also to identify the prisoner. They can not alone be received to prove the body of the crime at all.” This' instruction the court refused, and, instead thereof, instructed the jury as follows : "Mere extrajudicial confessions alone can not- be used to prove the body of the crime, and also to identify the prisoner. But they may be taken in connection with other evidence in the case, either positive or circumstantial, in making out what is called the corpus delicti.”
    The counsel for the prisoner then asked the court to give the following charges:
    "If, by the application of physical power, one person force poison into the stomach of another, against the will of that other, whether that other do, or do not, know the thing forced into the stomach to be a poison, the act is not an administering, in the sense of the word 'administer,’ as used in the criminal statutes of Ohio.
    "If, by threats of personal violence, one person compel another to take and swallow poison — whether the person do, or do not, know the thing thus forced upon him to be' poison — -the act is not an administerivg, in the sense of the-word ‘administer,’ as used in the criminal statutes of Ohio,
    "For one person to persuade another to take and swallow into the stomach, poison — the person taking and swallowing it knowing it to be poison- — though the person taking- and swmllowing the poison die in consequence thereof, is-not a crime, offense, or misdemeanor, under any of the-statutes of Ohio.
    "If two persons agree to commit suicide, and one of them, on the faith of the promise of the other that he would do the suicidal act, and believing that the other had-done, or was about to do, or would do the suicidal act, commits suicide, the other person, either from fear of death, or in fraud of such agreement not doing the suicidal act — the survivor is not guilty of murder, nor of any crime or offense known to the laws of Ohio.”
    These charges the court refused to give, and instructed the jury as follows :
    "You can not find the prisoner guilty on either of said counts, unless you are satisfied from the evidence, beyond a reasonable doubt, that in the legal sense of the term the prisoner did administer strychnia to Mary Jane Lovell.
    “You must be satisfied from the evidence that the defendant, John Samuel Blackburn, administered to said Mary Jane Lovell the poison of which she died; that lie-administered it in this county; that he so administered it unlawfully, purposely, and of deliberate and premeditated malice, knowing it to be a deadly poison, and with intent to kill' the said Mary Jane Lovell, and that it was such poison. To be still more specific, I would say that, to justify a verdict against the defendant, the evidence should establish that the defendant administered to the deceased the poison of which she died, if-she died of poison. It is not necessary, however, that the defendant should stand by and deliver it to her at the time she took it in her mouth and swallowed it. It is not necessary that she should have received it from his hand. If he delivered the poison to her for the purpose of being by her swallowed into her body ; or if he provided it for her where she could receive it, and so informed her; and if it was so provided and placed for the purpose of being by her swallowed into her body, and in pursuance of that she took it from the place where he so deposited it, and in either case swallowed it into her body; or if, by way of persuasion or agreement jointly to commit suicide or destroy their own lives, the defendant induced or persuaded the deceased to swallow the strychnia, with the intent on his part to destroy her life, he being present at the time of the transaction, and she, influenced by such persuasion or agreement, swallowed the same, knowing it to be a deadly poison, and intending thereby, by virtue of such agreement, to destroy her own life; or if by force in any manner he compelled her to swallow down the poison ; then, in either case, the facts stated would constitute an administering of poison within the meaning of the statute. But it is not enough that strychnia poison should have been administered — that is, taken into the body; it should also have been unlawfully administered, and with the intent to kill the deceased.”
    As to the defense of insanity, the court instructed the jury that the questions for them to decide were these: “Was the defendant a free agent in forming the purpose to kill Mary Jane Lovell? Was he, at the time the act was committed, capable of judging whether that act was right or wrong? And did he at the time know it was an offense against the laws of God and man ? ”
    As to the nature and effect of circumstantial evidence, the court said to the jury, among other things, that “ in no case ought the force of circumstantial evidence, where it is adequate to conviction, to be inferior to that which is derived from the testimony of a single witness.”
    To all which instructions, and refusals to instruct, the prisoner’s counsel excepted.
    The prisoner’s counsel then asked the court to reduce the whole of its charge to writing, and to read the same to the jury before the commencement of the arguments of counsel. This the court declined to do, stating that the charge would be given to the jury in writing after the conclusion of the arguments, which was subsequently done accordingly. To all which the prisoner’s counsel excepted.
    Upon return of the jury’s verdict, the prisoner’s counsel moved to set the verdict aside, and for a new trial, upon the ground, among others, that one of the jurors, before being impaneled, had expressed an opinion as to the prisoner’s guilt, and produced and read to the court the affidavits of .sundry persons, who swore that they heard the juror, before the trial, express his opinion that the prisoner was guilty. The state then produced and read the affidavit of the juror himself, who testified that he never had expressed or formed any opinion as to the guilt or iunocence of the prisoner previous to the trial; and the court thereupon overruled the motion for a new trial, and the counsel for the prisoner excepted.
    It is assigned for error, that the court refused the instructions asked; that it misdirected the jury in the particulars excepted to, and in other particulars which, need not be specified; that a new trial was refused, and that the court rejected the evidence as to the predisposition of the deceased to suicide.
    
      J. Sloane, for plaintiff in error:
    I. When, in a criminal prosecution, the state puts in evidence a statement made by the accused, claimed to be in the nature .of a confession, the jury have no right arbitrarily to discredit the exculpatory parts of such statement, if any such parts there be, unless there is some other evidence in the case showing them to be false, or unless they are so unreasonable and absurd in themselves as, in the opinion of the jury, to be unworthy of credence.
    II. For one person, by the exertion of physical power, to .force poison into the stomach of another, or, by threats of personal violence, to compel another to swallow poison, causing, by means of the poison, that other’s death— there being no confidential relation between them, and the one so forcing the other committing, in doing so, no breach of confidence in any way, and being guilty of no deception of the victim — is not an administering of poison, in the sense of the word “administer” as used in the first section of the crimes act.
    III. In Ohio, suicide is not a crime, never having been defined and declared such by the legislature of the state; .and there can not be a criminal accessory, nor a criminal principal in the second degree, to an act which is not itself a crime. Therefore, the mere inducing of another, by advice or persuasion merely, purposely to kill himself, is not punishable in Ohio, even though the inducer be present at the time of the self-killing by the other, such inducing never having been defined and declared a crime by the legislature; though, should one directly participate and assist in the doing of the physical act whereby another kills himself, the first might be guilty of criminal homicide, while the other would be a suicide.
    If two agree that they will each commit suicide, the agreement of each being the inducement to the other to do the suicidal act, and one of them, in pursuance of the agreement, does the suicidal act, and dies, the other, from some cause, not attempting to kill himself, or, attempting to do-so, failing to take his own life, the survivor, for the reasons already given, even though present at the commission of the suicidal act by the other, is not guilty of any crime or offense known to the laws of Ohio. In England the adviser is held a principal in the second degree Only. Hawkins’ Pleas of the Crown, book 1, ch. 27, sec. 6; Rex v. Hughes et al., 5 C. & P. 126 (24 Eng. Com. L. 241); 1 East’s Pleas of the Crown, 429, ch. 5, sec. 6; Rex v Tyson, 1 Eng. Crown Cases (Russell & Ryan), 522; Rex v. Russell, 1 Eng. Crown Cases (Moody), 356.
    See, as to New York law on this point, 2 Rev. Stat. 661, sec. 7; 4 Black. Com. (Chitty, with Am. Notes), 190 (side-paging), note 14. See also, as illustrative, Harrison’s Will, 1 B. Mon. 351; 1 Green’s Ch. 82; 1 Greenl. 280; Truman v. Lore, 14 Ohio St. 144, 156. See argument of Attorney-General in Com. v. Bowen, 13 Mass. 356, 357, and 1 Hale’s Pleas of the Crown, 431 (top paging); State v. Weaver, Busb. 9, 12; 1 Bishop, 415, a; Regina v. Pitts, Car. & M. 284; 1 Bishop, 417.
    IV. The refusal of the court to give the subjoined charge, without the addition, at the end, of the words, “uninfluenced by another,” was error, because the jury may have understood the court that if the accused had, by mere words or by letter, in the slightest degree influenced? the deceased to kill herself, he was guilty of murder, even though he was not present at the time of the doing of the-suicidal act.
    “ It is a rule, in criminal cases, that the coincidence of circumstances tending to indicate guilt, however strong and numerous they may be, avails nothing unless the corpus delicti, the fact that the crime has been actually perpetrated, be first established. The same principle requires that upon a charge of homicide, even where the body has been found, and though indications of a violent death, or death by poison, be manifest, that it shall still be fully and satisfactorily proved that the death was neither occasioned by natural causes, by accident, nor by the act of the deceased himself.” See Peck, J., in Truman v. Lore, 14 Ohio St. 144, 154; and in Breese v. The State, 12 Ohio St. 146, 155; Walker v. Stetson, Ib. 89; Bain v. Wilson, 10 Ohio St. 14. And the charge was calculated to mislead the jury. See Washington Mut. Ins. Co. v. Mer. and Man. Mut. Ins. Co., 5 Ohio St. 450, 484; White v. Thomas, 12 Ohio St. 312; Hadley et al. v. Clinton Co. Imp. Co., 13 Ohio St. 502.
    V. Extrajudicial confessions are insufficient for the conviction of a defendant charged with a capital crime, unless-the corpus delicti be proved by evidence other than, and independent of, the confessions; and it is error for a court to charge, in such a case, that extrajudicial confessions “ may be taken in connection with other evidence in the case,, either positive or circumstantial, in making out what is-termed the corpus delicti.” See Waterman’s Note to 1 Archb. Crim. Prac. & Pl. (7 ed). 410 (top paging), note 1, and cases there cited; Stringfellow v. The State, 28 Miss. 157, 165; People v. Hennessy, 15 Wend. 147; People v. Badgely, 1 Wend. 53; State v. Fields, Peck, 140; State v. Gardiner, Wright, 392; 1 Archb. 406.
    VI. Destitution, or complete paralysis, of will-power, is-insanity; and no one is criminally responsible for an act which he had no power whatever to refrain from doing; and it is error in a court to refuse to submit to the jury the• question of fact, whether in the accused on trial before-them there was such a destitution or paralysis of willpower in respect to the act, with the commission of which he stands charged, at the time he committed it, if he did! commit it; and to charge them that if the accused committed the act he is criminally responsible, if, when he committed it, he knew that the act was morally and legally wrong,, even though he had no power whatever to refrain from doing it.” Clarke v. The State, 12 Ohio, 483; Faner v. The State, 2 Ohio St. 54; Loeffner v. The State, 10 Ohio St. 598; 2 Greenl. Ev. 372; The State v. Jones, 50 N. H. See 5 Amer. Law Times and Rep. (No. 8, August, 1872,) 269.
    VII. It is error in a judge, in charging a jury, to express his opinion upon the tendency or effect of the evidence, or to state the evidence argumentatively, so as clearly to indicate to them his opinion as to its tendency or effect, even though he informs them that they are the exclusive judges of the facts. See Bartley, C. J., in 5 Ohio St. 450, 482; and see Noland v. The State, 19 Ohio, 131, 135.
    VIII. It is error to instruct a jury that, “in no case ought the force of circumstantial evidence, where it is adequate to conviction, to be inferior to that which is derived from the testimony of a single witness.” So to instruct is to give the jury an incorrect test of the sufficiency, for couviction, of circumstantial evidence. Cicely, a slave, v. Mississippi, 13 Smedes & Marshall, 210.
    IX. It is error, in charging a jury in a criminal case, to instruct them that corpus delicti is the offense committed as charged. Such a definition of the term is likely to mislead the jury, confounding, as it does, the body of the crime with the commission of it and with the identification of the perpetrator. See Barney v. Dimmitt’s Adm’r, Wright, 44; S. & C. 1021-1023; S. & S. 553, 554; Criminal Code, sec. 266.
    X. If requested, it is the duty of the court to write out, before the commencement of the argument to the jury, its charge, and furnish the same to the counsel; and a refusal to do so is error.
    XI. On the trial of a person charged with murder or manslaughter, where, on the testimony, the question is, whether the deceased committed suicide, or was killed by the accused, evidence tending to prove that the deceased had been predisposed to suicide, and had threatened to commit it, is competent; and it is error to exclude such evidence, even though it does not affirmatively show the existence of such a state of mind, or the making of such threats, to have been later than six years before the death of the deceased. See Commonwealth v. Chabbock, 1 Mass. 144 (side paging), 443 (top paging); Roscoe’s Cr. Ev. (5 Am. from 3 Lond. ed.), 88, citing Stallard’s case, 7 C. & P. 263; Stewart v. The State, 19 Ohio, 302; Com. v. Knapp, 9 Pick. 496, 518; Pritchett v. Thie State, 22 Ala. 39; Crawford v. The State, 12 Ga. 142; McMillan v. The State, 13 Mo. 30; Henry v. The State, 11 Humph. (Tenn.) 224; Moore v. The State, 2 Ohio St. 500; Jackson v. The State, 14 Ga. 55; Ball’s case, Russ. & Ryan, 132; 3 Greenl. Ev. 39, sec. 32.
    XII. Where one called, and who afterward serves as a. juror in a criminal case, swears on his preliminary examination, that he has not formed nor expressed an opinion as to the guilt or innocency of the accused, and it is afterward, on a motion for a new trial, proved, with reasonable-clearness and certainty, by four unimpeached witnesses, that the juror had, before he was called as a juror, at different times expressed an opinion that the accused was-guilty, there is such a preponderance of evidence against him 'that a new trial should be granted, even though the juror again swear that he had not formed nor expressed an opinion, and deny specifically the statements of the four witnesses who swear to his expressions of opinion.
    As required by the decision in Parks v. The State, 4 Ohio St. 234, and Eastman v. Wright, 4 Ohio St. 157, the defendant and his counsel filed their respective affidavits, that they did not know, at the time the jury were impaneled and. sworn, that Dunnock had formed and expressed an opinion.
    
      L. T. Neal, prosecuting attorney, for the state:
    I. The plaintiff in error having been convicted on the fifth count of the indictment alone, it is immaterial whether any of the other counts are good or not. Buck v. State, 1 Ohio St. 61; Stoughton v. State, 2 Ohio St. 562; Baily v. State, 4 Ohio St. 440; Robbins v. State, 8 Ohio St. 162.
    But we submit that the second, fourth, fifth, and sixth counts of the indictment, which are the counts objected to as - being defective, are each sufficient in law, and that the court below properly overruled the demurrer to them. The second count is in accordance with approved precedents. Warren’s Ohio Crim. Law, 195, 196; Robbins v. State, 8 Ohio St. 131. The fifth count is an exact copy of the second, save the omission of the averment that the party alleged to have been poisoned did not know that the poison was mixed with the port-wine at the time she swallowed it. And the fact that it is silent on this point is not material. Such an averment is not essential to the validity of the count. Wharton’s Prec. of Indictments, 66; 1 Wharton’s Amer. Crim. Law, sec. 122; 2 Ib., secs. 963, 964; 1 Bishop’s Crim. Law, 345, sec. 600; 2 Arch. Crim. Pr. & Plead. 211-214, 252; 3 Greenl. on Ev. 41, sec. 41; 1 Russ. on Crimes, 421, note 423, 429 (marg. 424, 430); 4 Black. Com. 186; Roscoe’s Crim. Ev. 772; Com. v. Bowen, 13 Mass. 356; Reg. v. Michael, 9 C. & P. 356, or 38 Eng. C. L. 152; Reg. v. Allison, 8 C. & P. 418, or 34 Eng. C. L. 458; Rex v. Tyson, 1 Eng. C. C., or Russ. & Ry. 522; 1 East’s P. C. 228, 229; 1 Hale’s P. C. 418, note.
    The omission of a like averment from the fourth count constitutes the only difference between it, and the first, which is a substantial copy of the first count in the Robbins case cited supra. And the sixth count is in accordance with approved precedents. Warren’s Ohio Crim. Law, 188, 194, 203.
    II. In the absence of a bill of exceptions setting out all the evidence, this court will presume that other evidence was given at the trial showing the materiality of the evidence that was admitted touching the change of residence by the deceased from Leesburg to Cincinnati. Ide v. Churchill, 14 Ohio St. 378; Wager v. Dickey, 17 Ohio 439; Wilson v. State, 2 Ohio St. 321. And if it was relevant, the objections to the question put to Catharine Huff .and to her answer were properly overruled. Wetmore v. Mell, 1 Ohio St. 26; 1 Greenl. Ev., sec. 108, and authorities cited.
    III. The evidence offered to prove the melancholy condition of mind of the deceased in the year 1863, and that :she had in said year, and in January, 1865, expressed a purpose at some time to commit suicide, was too remote; and It was properly rejected under the rule of law, “that where the circumstances are so remote, or where it is apparent for other reasons, that they can cast no light on the subject,the court must reject the proof of them.” Moore v. State, 2 Ohio St. 500.
    If evidence of the suicidal tendency of the deceased was competent at all, there should have been an offer on the part of the accused to show that it continued to exist up to, or at least near the time of her death. A suicidal mania proved to exist at a particular time does not authorize the inference of its existence at a remote subsequent period. It may be only temporary; and the burden of proof is on the party seeking to avail himself of it, to show that it is habitual — that is, in its nature continuous and chronic. 1 Whart. Amer. Crim. Law, sec. 56; Whart. & Stille’s Med. Jur., sec. 33; 4 Met 545; 1 Jarm. on Wills, (2 Amer. ed.) 65; 5 Ala. 244; 3 C. & K. 188; 6 Bennett, 464; 4 Cox’s C. C. 155. The evidence as to 1863 was too remote.
    IV. The part of the charge given, instead of the first special charge asked by the prisoner, which is complained of, is fully sustained by authority. 1 Greenl. on Ev., sec. 218, and authorities there cited; Roscoe’s Crim. Ev. 55; Wills on Cir. Ev. 84; 1 Whart. Amer. Crim. Law, sec. 697, and eases cited.
    There was no error in that part of the substitute for the second charge requested, which relates to proof of the corpus delicti. It is not necessary that the corpus delicti should be proved by direct and positive evidence. It may be established by circumstantial evidence; and the confessions of the prisoner may be taken in connection with other evidence in the case to prove it. 1 Whart. Amer. Crim. Law, sec. 745; Roscoe’s Crim. Ev. 37; 1 Greenl. on Ev., sec. 217; 3 Ib., sec. 30; Wills on Cir. Ev. 79, 177, 179.
    The other questions presented by the second charge asked by the prisoner, and also the questions presented by the third charge, requested by him, have never been decided in Ohio; but the charge of the court, as given, has a great weight of authority in support of it.
    The law does not require that the homicide should be committed against the will of the party killed; for if a man kill another with his consent, or by his desire, he is as much' guilty of murder as if he had killed him against his will. 2 Arch. Crim. Prac. & Plead. 211-214.
    If one encourage another to commit suicide, and is present aiding him while he does so, such person is guilty of murder as principal; and if two encourage each other to murder themselves, and one does so, the other being present, but the latter fails in an attempt upon himself, he is principal in the murder of the first. See 1 Whart. Amer. Crim. Law, sec. 122, and the other authorities supra in support of the fifth count of the indictment. Our statute does not change this rule of the common law, because there is no difference between murder at common-law and murder under our statute, so far as concerns this-question. Fouts v. State, 8 Ohio St. 109, 111; 1 Russ. on Crimes, 482; S. & C. 401.
    Forcing a person to do an act which is likely to produce and does produce his death, is murder, whether the force be applied to the body or to the.mind. Threats may constitute such force. 3 Greenl. Ev., sec. 142; 2 Arch. Crim. Prac. & Plead. 211, 214, note.
    The court had charged, in substance, that suicide committed of one’s own free will was not crime, and the refusal to give the first part of the fourth special charge asked "was not error. Stewart v. The State, 1 Ohio St. 66.
    And the latter clause of said charge was properly refused. See authorities cited in supra to sustain the fifth count of the indictment. Again, this charge was not, as a whole, sound in law. And where a charge is asked, it must betaken as a whole, in determining whether the court erred in refusing it. The question on error, for refusal to charge, is whether the whole charge asked was law. Inglebright v. Hammond, 19 Ohio, 337; French v. Millard, 2 Ohio St. 44; Blaney & Morgan v. Hoke, 14 Ohio St. 295; Walker v. Devlin, 2 Ohio St. 606.
    The words “ uninfluenced by another,” added by the' court to the fifth charge asked by the prisoner, present the same question raised by the second and third charges requested, and the same authorities will apply.
    The part of the charge of the court which relates to the question of insanity, is strictly according to the law as-it has been repeatedly laid down by this court. Clark v. State, 12 Ohio, 494; Farrer v. State, 2 Ohio St. 76; Loeffner v. State, 10 Ohio St. 615; 2 Greenl. on Ev., sec. 372; Com. v. Rogers, 7 Met. 500.
    V. There is no error in that part of the general charge-of the court, which is objected to on the ground that it took from the jury the decision of certain facts in the case. The court has the right, in its charge, to comment upon the evidence in the case. Abram v. Will, 6 Ohio, 164. And such comments are not a subject of exception. Gardner v. Barden, 34 N. Y. 437; Nolton v. Moses, 3 Barb. 31. Nor is it error for the court, in charging the jury, to recapitulate the evidence in.the case. Mimms v. State, 16 Ohio St. 221, see also the charge of Chief Justice Shaw, to-the jury, in the Webster case, 5 Cush. 363.
    VI. The court was not bound to reduce the charge to writing. 66 Ohio L. 309.
    VII. The ruling of the Common Pleas, in refusing a new trial upon the ground that “ Dunnock had formed and expressed an opinion as to the guilt of the accused prior to his being impaneled as a juror,” and subsequent to the finding of the indictment, was correct. Rogers, J., in Com. v. Flanagan, 7 W. & S. 121.
    The opinion expressed by the juror must amount ‘to a prejudgment of the case, otherwise a new trial will not be-granted on this ground. 3 Whart. Am. Crim. Law, sec. 3152; Loeffner v. State, 10 Ohio St. 614; Cooper v. State, 16 Ohio St. 329; Kennedy v. Com. 2 Va. Cases, 510; Brown v. Com., 2 Ib. 516; Poore v. Com., 2 Ib. 474; Com. v. Hughes, 5 Rand. 655; Michner v. State, 11 Ga. 616; Anderson v. State, 14 Ib. 709; State v. Ayer, 3 Foster, (N. H.) 301; Com. v. Webster, 5 Cush. 297; Com. v. Flanagan v. 7 Watts & Serg. 421.
   Welch, J.

We see no error in the instructions of the court regarding the confession of the prisoner. The instructions given differ but a shade from those that were asked, the only difference being that those which were asked seem to deny to the jury the “ right” to judge for themselves, and in their own way, of the truth or falsehood of the exculpatory parts of the prisoner’s statements. We think the court rightly stated the rule of law, namely, that the whole statement is to be received as evidence, and that it is the province of the' jury, in the light of all the evidence in the case, to decide upon the truth or falsehood of the exculpatory parts of the statement.

Nor do we think the court erred in its instructions as to what constitutes the administering of poison, within the meaning of the first section of the crimes act.

To force poison down one’s throat, or to' compel him by •throats of violence to swallow, it, is an administering of poison. Neither deception nor breach of confidence is a necessary ingredient in the act. It matters not whether the poison be put into the hand, or into the stomach of the party whose life is to bes destroyed by it. If the poison reaches the stomach or body of the deceased, and does its work of death there, it is immaterial whether force or fraud was the means by which the guilty agent, effected his object. In either case it is an administering of poison, within the meaning of the act. We think counsel are wrong in assuming that the word administer always and necessarily implies “ service.” If it does, it often implies “ service ” to a very unwilling master. Such is the case when the law is administered to a criminal. The word minister ” is said to be derived from the same root as the Latin word manus, the hand. Etymologically, therefore, the word “ administer” would seem applicable to anything that could be done by the hand, to or for another. We think also that the court was right in instructing the jury, as in substance and effect it did, that it Í3 immaterial whether the party taking the poison took it willingly, intending thereby to commit suicide, or was overcome by, force, or overreached by fraud. True, the atrocity of the crime, in a moral sense, would be greatly diminished by the fact that suicide was intended; yet the law, as we understand it, makes no discrimination on that account. The lives of all are equally under the protection of the law, and under that protection to their last moment. The life of those to whom life has become a burden — of those who are hopelessly diseased or fatally wounded — nay, even the lives of criminals condemned to death, are under the protection of the law, equally as the lives of those who are in the full tide of life’s enjoyment, and anxious to continue to live. If discriminations are to be made in such cases as to the amount of punishment due to offenders, they must be made by the exercise of executive clemency or legislative provision. Purposely and maliciously to kill a human being, by administering to him or her poison, is declared by the law to be murder, irrespective of the wishes or the condition of the party to whom the poison is administered, or the manner in which, or the means by which, it is administered. The fact that the guilty party intends also to take his own life, and that the administration of the poison is in pursuance of an agreement that both will commit suicide, does not, in a legal sense, vary the case. If the prisoner furnished the poison to the deceased for the purpose and with the intent that she should with it commit suicide, and she accordingly took and used it for that purpose ; or, if he did not furnish the poison, but was present at the taking thereof by the deceased, participating, by persuasion, force, threats, or otherwise, in the taking thereof, or the introduction of it into her stomach or body; then, in either of the eases supposed, he administered the.poison to her, within the meaning of the statute. Her act of taking and swallowing it, in his presence and by his direction, was his act of administering it.

It is said by counsel that suicide is no crime by the laws of Ohio, and that therefore there can be no accessories or principals in the second degree in suicide. This is true. But the real criminal act charged here is not suicide, but the administering of poison. And to this criminal act theremay be accessories, and principals in the second degree. If I furnish poison to a guilty agent, an accomplice, to be administered by him, and he administers it accordingly, I am an accessory before the fact; and if I stand stand by and counsel or encourage him in the act of administering the poison to another, I am a principal in the second degree. But no question of this kind arises in the present case, either upon the indictment or in the evidence. There is no claim or pretense that there was any guilty third person participating' in the transaction. The charge is that the prisoner, as principal in the first degree, is guilty of administering poison, and thereby causing death.

We think, therefore, that the court did not err in its instructions as to what amounted to the administration of poison within the meaning of the crimes act.

It is also objected that, the court misdirected the jury as to the kind and amount of evidence necessary to prove the corpus delicti, or body of the crime. As we understand the charge of the court, it is, in substance, that extrajudicial confessions alone are not sufficient to prove the body of the crime, but that they may be taken and used for that purpose in connection with the other evidence in the cause. This we understand to be the law.

Another objection to the charge of the court is, that the jury were instructed that “in no case ought circumstantial evidence, where it is adequate to conviction, to be inferior to that which is derived from the testimony of a single witness.” It is difficult to see how this instruction could prejudice the plaintiff' in error. If it is wrong, it is wrong in his favor. It is, therefore, unimportant to inquire-whether the proposition be law or not.

The counsel also object to that part of the court’s charge which relates to the defense of insanity, and insist that, instead thereof, the court should have given certain instructions which they asked. We see no substantial difference between the instructions asked and the charge given. The form of question submitted to the jury is substantially the same as laid down in Clark's case, 12 Ohio, 494 (note), and seems to ns to embody the true rule, namely: "Was the accused a free agent in forming the purpose to kill? "Was he at the time capable of judging whether that, act was right.or wrong? And did he know at the time that it was an offense against the laws of God and man?

It is also claimed that the court erred in refusing to reduce its charge to writing, and read the same to the jury, before the argument of the case. Her,e, again, we agree with the court below, and disagree with counsel. Under the provisions of the criminal code (S. & S. 553, 554, sec. 1), as we read them, the court is not bound to reduce its instructions to writing, unless requested so to do before the argument of the case, nor to read or deliver the same, when so written, until after the close of the argument^ if any argument is made. This is reasonable, the design evidently being to give the court time and opportunity, without unnecessary delay of the trial, to prepare the instructions, and is evidently what was intended by the section of the code referred to.

Another ground of error insisted upon, and which we think also unavailing, is the overruling of the prisoner’s motion for a new trial, based on the alleged ground that one of the jurors had formed and expressed his opinion in the case. The evidence in regard to the fact of such formation and expression of opinion is conflicting. It is enough to say, in order to uphold the ruling and judgment of the court, that there was evidence fairly tending to disprove the fact alleged, and that we have no power to revise the finding of the court as to that fact.

There is but one other ground of error which we deem it necessary to notice, and this, we incline to think, is well taken. I refer to the order of the court rejecting testimony offered to prove the predisposition of Mary Jane Lovell to suicide. The testimony was rejected on the ground of remoteness, referring, as it did, to a period six years prior to the time of her death. It seems to us that this lapse of dime should go merely to the weight, and not to the competency of the testimony. We can not assume that this-state of mind, this predisposition to suicide, was merely temporary. It was equally open to both parties to trace the history of her mind down to a more recent period; and we can not assume that the prisoner had the means of doing so, or see on what ground he was bound to make known his purpose to do so. For the error in rejecting this testimony, although apparently of but small importance in the case, we feel bound to reverse the judgment,, and remand the cause for retrial and further proceedings..

Other errors are assigned upon the record, but we deem it unimportant to consider them, further than to say that,, in our judgment, they are not well taken.

Judgment reversed and cause remanded.  