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any expectation of death, or that the deceased knew to whom she was speaking, or that she meant to speak to any body. It is not even evident that she was awake or in her senses. The exclamation, if made in the manner described, is such a one as might naturally come from a person in agony, whose attention was completely distracted from the persons and things about her; and might easily have come from one quite unconscious of such matters. It would be extremely dangerous, and contrary to every rule of evidence, to allow such an exclamation to be received as a dying declaration of facts, and to allow it to be eked out by suspicions and inferences, as was done here, so as to allow the jury to act upon it, as if she had solemnly charged the respondent with being the author of her death, in the manner charged against him.

1

Two witnesses, Hattie Sweet and Belinda Wheeler, had been sworn for the prosecution, and evidence had been given by the defence to show that they had given different statements out of court upon material facts, and that one of them had testified differently on a former trial and examination. The court, against objection, allowed their credit to be supported by proof of general reputation for truth and veracity. This, we think, was error. It is defended on the strength of certain intimations of Mr. Greenleaf 1 and cases to which he refers. The origin of the doctrine, that the general good character of a witness may be shown in answer to any kind of impeachment seems to be referred to Rex v. Clarke, and to a reference in Starkie's Evidence to that case, as supporting it, and some decisions in this country appear to favor it. But that case, if it be received as authority, decides nothing of the kind. It only holds that where a witness has been asked questions on cross-examination directly tending to discredit his character, as, for example, whether he has been convicted of crime, or done acts which may disgrace him, his good character may be shown to remove suspicions that might arise from that course of examination. It was not a case where a witness had been impeached by proof of contradictory statements, and there is no strong analogy between those two examples.

4

The question has been amply discussed in New York and Massachusetts, and settled against such a practice. The matter was first considered, but not decided distinctly, in People v. Rector.3 In People v. Hulse, it was again disputed, and the doctrine settled against allowing the testimony. Bronson, J., gives some forcible reasons for that conclusion, while Cowen, J., was for receiving it, as he had intimated in People v. Rector. In Starke v. People,5 the court unanimously adhered to the ruling in People v. Hulse, and adopted the opinion of Judge

1 1 Greenl. Ev., sec. 469.

2 2 Stark. 241.

19 Wend. 596.

4 3 Hill, 309.
65 Denio, 107.

Bronson. In 7 New York, 378,1 the Court of Appeals affirmed and approved People v. Hulse, and overruled the contrary opinions of Judge Cowen. The case of Russell v. Coffin,2 is an early case in Massachusetts, where the question was carefully considered, and decided against receiving the sustaining testimony. Other cases are referred to by Judge Bronson to the same effect. And in Brown v. Mooers,3 Mr. Greenleaf's doctrine is emphatically repudiated as unfounded.

Looked at as a question of principle, it is not easy to see the propriety of permitting such proofs. It is, in effect, an attempt to impeach one witness by showing the good character of another whom he has contradicted. But, until impeached in some way, every witness has the legal presumption of good character, which would not be touched by another's character, and the rule is well settled that good reputation can not be shown affirmatively before it is assailed by proof. If proof can be received which will allow good character to stand as a counterpoise to positive facts in one case, it would be very unjust to shut it out at any time.

The impeaching witness should be allowed to confirm his oath by it, if the impeached witness may use it against the impeacher, and the process would never come to an end.

It is not collateral, but direct, when offered upon the issue raised by an impeachment of general reputation. There the witness on one side asserts, and the opposing witness denies the same facts, and no side issues are raised. But whatever may be the likelihood that a man of good character will tell the truth, it will not turn falsehood into truth if he asserts a falsehood; and the attempt to sustain contradicted witnesses by evidence of character can only lead to endless inquiries, which are not likely to aid in getting at the facts in issue. It is far less satisfactory than the view and comparison of witnesses before the jury. It would require every witness (as well remarked by Parker, C. J.) to bring his compurgators to support him when he is contradicted, and indeed it would be a trial of the witnessess, and not of the action.4

We think the rule which excludes proof of character in such cases is sound and reasonable, and we are disposed to adhere to it

A remaining question is of some consequence. Objection was made that the information was not properly framed to support the conviction. The information is very brief, and consists of the single statement that respondent, on a day and year, and at a place named, "one Mary A. Bowers feloniously, willfully and wickedly did kill and slay, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Michigan."

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It is not claimed by any one that this would have been a good indictment at common law, not only for formal defects, but also for not indicating in any way the means and manner of causing death. But it is justified under our statute, which dispenses with allegations of these, and declares it sufficient "to charge that the defendant did kill and slay the deceased.1

Respondent claims that the constitutional right "to be informed of the nature of the accusation," involves some information concerning the case he is called on to meet, which is not given by such a general charge as is here made. And courts are certainly bound to see to it that no such right is destroyed or evaded, while they are equally bound to carry out all legislative provisions tending to simplify practice, so far as they do not destroy rights.

The discussions on this subject sometimes lose sight of the principle that the rules requiring information to be given of the nature of the accusation are made on the theory that an innocent man may be indicted, as well as a guilty one, and that an innocent man will not be able to prepare for trial without knowing what he is to meet on trial. And the law not only presumes innocence, but it would be gross injustice unless it framed rules to protect the innocent. The evils to be removed by the various acts concerning indictments consisted in redundant verbiage, and in minute charges which were not required to be proven as alleged. It was mainly, no doubt, to remove the necessity of averring what need not be proved as alleged, and therefore gave no information to the prisoner, that the forms were simplified. And these difficulties were chiefly confined to common-law offenses. Statutory offenses were always required to be set out with all the statutory elements. Koster v. People. The statute designed to simplify indictments for statutory crimes, which is in force in this State, and is a part of the same act before quoted, reaches that result by declaring that an indictment describing an offense in the words of the statute creating it shall be maintained after verdict.3 But both of these sections must be read in the light of the rest of the same statute, which plainly confines the omission of descriptive averments to cases where it will do no prejudice. And so it was held in Enders v. People,4 that nothing could be omitted by virtue of this statute, which was essential to the description of an offense.

Manslaughter, at common law, very generally consisted of acts of violence of such a nature that indictment for murder and manslaughter were interchangeable, by the omission or retention of the allegation of

1 C. L., sec. 7916.

2 8 Mich. 431.

3 C. L., sec. 7928

4 20 Mich. 233.

malice, and of the technical names of the offenses. In a vast majority of cases, a very simple allegation would be enough for the protection of the prisoner. But where the offense of manslaughter was involuntary homicide, and involved no assault, but arose out of some negligence or fault from which death was a consequential result, and sometimes not a speedy one, the ordinary forms were deficient, and the indictment had to be framed upon the peculiar facts, and could convey no adequate information without this.1

The offense for which the respondent in this case was put on trial originated in the statute defining it, and could not have come within any of the descriptions of manslaughter at common law. An innocent person, charged under the information, could form no idea whatever, from it, of the case likely to be set up against him. He might, perhaps, be fairly assumed bound to prepare himself to meet a charge of manslaughter by direct violence or assault. But which one was meant, out of the multitudinous forms of indirect and consequential homicide that might occur after a delay of any time, not exceeding a year, from an original wrong or neglect, and of which he might or might not have been informed, he could not readily conjecture. Nothing could inform him of this statutory charge, except allegations conforming to the statute. These, we think, he was entitled to have spread out upon the accusation. Without them, he was liable to be surprised at the trial, and could not be expected to prepare for it.

We are not prepared to hold this information bad upon its face, for we are disposed to think, and it was practically admitted on the argument, that it may apply to the ordinary homicides by assault. It was not, therefore, until the evidence came in, that it was made certain the case was different. The question of sufficiency does not arise directly upon the record, but on the bill of exceptions, and the error was in permitting a conviction on it.

The other questions are closely connected with this, and need not be considered further.

It must be certified to the court below that the verdict should be set aside, and that no further proceedings on this charge should be had under this information as it stands.

The other justices concurred.

1 See 2 Bish. Cr. Proc., sec. 538.

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In the Supreme Court of Iowa, December Term, 1879.

An Instruction on a Trial for Abortion, that if the fact of the pregnancy and the time and place of the alleged crime are fully and clearly proven, and it is proved beyond a reasonable doubt that the prisoner administered drugs or introduced instruments with intent to produce a miscarriage, he should be convicted, is erroneous.

APPEAL from Harrison District Court.

The indictment charged that the defendant "did unlawfully, willfully and feloniously administer to one Surrilda Purcell, who was then and there a pregnant woman, certain drugs and substances, and did then there unlawfully * * * use a certain instrument with intent then and there and thereby to produce the miscarriage of the said Surrilda Purcell, such miscarriage not being necessary to save her life." There was a verdict of guilty, judgment, and defendant.appeals.

Cochran & Bailey, for appellant. J. F. McJunkin, for the State. SEEVERS, J. 1. The second and third instructions given the jury were as follows:

"2. There are in the offense, with which the defendant is charged as enumerated in the indictment herein, the following material allegations, to wit: First. That on or about the first day of November, 1878, said Surrilda was pregnant. Second. That the defendant, Stewart, willfully administered to said Surrilda Purcell some drug, or drugs or substances, with the intent to produce the miscarriage of said Surrilda Purcell, or that he used some instrument upon said Surrilda with the intent to produce her miscarriage. Third. That this was done by defendant at and within this county and State, and on or about the first day of November, 1878, and while said Surrilda was pregnant.

"If the first and third of the foregoing material allegations are fully and clearly proven, and either the first or second averment of the second allegation is proven beyond all reasonable doubt, and you are further satisfied, beyond all reasonable doubt, of the guilt of the defendant, your verdict should be guilty. If not so satisfied, then your verdict should be not guilty.

"3. A reasonable doubt is such a doubt as fairly and naturally arises in the minds of the whole jury, after fully and carefully weighing and considering all the evidence which has been introduced herein during

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