The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1891-08-06

Inc burden OF PROOF 10 upon the Statt
70 prove beyond reasonable doubt ever,
material element in the charge. The es.
sential elements charged IN the indict-
ment are:
l. The intent on the part q the prison,
er to procure the miscarriage Of Lille
Bordner, she being then and there a pteQ.
nant woman.
2. The use by the defendant OF instru.
ments or means adapted TO or by which
that end was accomplished.
3. That such miscarriage was not nee
essary to preserve her life.
a. That in consequence thereof Lille
Bordner died.
The section Of the Statute under which
this indictment is framed, :: makes IL in
cumbent upon the State to afflrmatiyely
| charge in the indictment and prove be-
yond reasonable doubt, four things:
/. The intent on the part Of the pris.
oner to procure the miscarriage Of Lille
Bordner.
2. The use Of instruments or means
adapted TO or by which that end was ac-
complished.
3. That such miscarriage was not nee
essary to preserve her life.
4. That in consequence thereof Lille
Bordner either miscarried or died,
Now the cases in which the statute
makes the intent with which an act was
done an Ingredient of it's criminality, such
intent Ia a fact to be charged in the indict-
ment and afiirmatively found by the jury
in order to a conviction, and although that
presumption Of law will annex the intent
to the commission of the act so as 10 make
out the prima-facie case OF guilt,yet where
there Is any evidence tending to rebut
this presumption, the question Of intent
must be determined by the jury from oil
the evidence.
presumption cannot be based upon a
presumption, and althougha person must
be presumed to do that which he volun-
tarily and wilfully does in fact, and that
he must intend all the natural, probable
and usual consequences Of his own acts,
those acts must be proven.to your satisfac-
ton beyond reasonable doubt, before
that presumption of intent can arise
therefrom against the defendant.
Unless the proof satisfy you beyond a
reasonable doubt that the defendant per-
formed the operation resulting In the
death of Lille Bordner, mere presumptiye
OF circumstantial evidence not amounting
to sufficient proof to satisfy you beyond a
ton of guilty intent.
The indictment in this case charges that
the defendant unlawfully, wilfully and
knowingly did use q certain instrument in
and upon the body and womb OF one Lille
Bordner, she being then and there preQ-
nant woman, with the intent then and
age of the said Lille Bordner.
You will look TO all the evidence
in the case, and If you find that Lille
Bordner was not in fact pregnant, and
that the defendant knew that she was not
pregnant, then there will be failure of
proof on the part OF the State to show that
the defendant used the instrument as
charged in the indictment with intent to
procure the miscarriage; for, il the proof
satisfy you that Lille Bordner was not
pregnant, and that the defendant knew
that she was not, then the use of instru-
ments could not have been with the in-
tent, as alleged in the indictment, of
procuring a miscarriage; and it matters
not whether Lille Bordner thought she
was pregnant or not, unless you also find
that the defendant also thought that she
was pregnant.
The Indictment charges the use of an
instrument by the defendant upon the
body of Lille Bordner with the intent to
procure the miscarriage of said Lille
Bordner, in consequence of which said
Lille Bordner died. This must be affirm.
atively proven by the State, not only that
the defendant used an instrument upon
the womb or body of said Lille Bordner,
with the intent aforesaid, but that the said
Lille Bordner died in conseueqnce of
such use of said instrument.
Llkewise,i If Observation-Disclosures of all the
evidence in the case, reasonable doubt
should arise in your minds as to whether
the death of Lille Bordner was in conse-
quence of the use of an instrument in the
hands .of the defendant, with intent to
produce that miscarriage, or was in con-
sequence of the use OF drugs or instru-
ments administered or used by heraelf or
Others than the defendant, then, in that
event, the doubt should be resolved in
favor of the defendant.
The claim OF the State, and the claim
of the defendant as to the condition OF
Lille Bordner at, and a short time before
her death, and as to the cause of her
death, are widely different, as you have
seen from their respective statements
made to you, and the evidence introduced
before you by both the State and defend
ant. Briefly the state claims In substance
that on Nov. 2th 1880, said Lille Bordner
being then pregnant, came TO the Office OF
the defendant In the city of Canton, for
the purpose OF having a miscarriage pro-
duced; that prior to her coming she was
in her usual healthy condition, save and
except that she was pregnant; that on
said Nov. Oath 1890 at his office, or at some
time during that week at the residence of
Mrs: Gully in said city, the defendant
used an instrument or instruments upon
said Lilllie Bordner with the intent and
for the purpose ofprocuring miscarriage
of said Lille Bordner, and that on De-
cember 9Th, 1880 she died in consequence
OF the use of said instrument or instru-
ments upon her by defendant for said pur-
pose; that during the time intervening
between November oath 1890, the time
when 1t 10 claimed Lille Bordner went to
defendants office, and December
6, 1860, the time when it
is claimed she died, the defendant visited
her often In consequence OF his alleged
operation upon her; and that for the pur-
pose OF concealing his guilt he kept said
Lille Bordner at Mrs. Cully's and away
from her friends, and did not notify her
parents where she was or of her condition;
that when she died, for a like purpose of
co9ncealippg cc91Se his. his alleged guilt and
a false account of the cause of her
death, took her body home to her parents
In the night season, and then made 10
them false report of the cause of her
death, and that soon after, on the next
day, the defendant confessed and ad.
mitted to various persons that he had per-
formed an operation upon said Lille
Bordner. If this claim of the state is true
the defendant would be guilty as he stands
charged in the Indictment.
The defendants answer ia the indict-
ment is q general denial, as have said,
of all the material allegations and aver
ments contained in the indictment. Be-
sides this general denial the defendant
briefly, claims in substance, that on said
November "a, 1890 he was a practicing
physician and surgeon in the city of Can.