pay.

(230 P.)

"It is agreed by the parties hereto that at the death of the party of the second part, the said described real estate shall descend to the children born of the wedlock of the parties hereto, share and share alike. It is further agreed that the party of the second part cannot sell or in any way alienate the title to said real estate without the consent of the party of the first part, and that said land shall be farmed and occupied by the party of the first part and the product thereof be the joint property of the parties hereto the same as heretofore.

"To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining forever.

twenty-four (24), township number twenty-six | ert Glenn Schweitzer, a minor, Anthony S. (26), range number five (5) west of the sixth Biggs, and James, Velma, and Francis Biggs, p. m.-subject to a certain mortgage of $1,000.- minors, and also named as defendants all 00, which the party of the first part agrees to the children of James Elward by his first wife and of Bridget Elward by her first husband. The case was tried to the court who found the interest of the parties to be as follows: John Elward, one-fourth; Alice Biggs, one-fourth; C. E. Schweitzer and Robert Glenn Schweitzer, each one-eighth; Anthony S. Biggs, one-eighth; and James, Velma and Francis Biggs, each one twenty-fourth; and that the other defendants had no interest in the property, and rendered decree for partition accordingly. From this judgment and decree John Elward, Alice Biggs, C. E. Schweitzer and Robert Glenn Schweitzer have appealed. They contend that the property should have been divided into three "And said James Elward for himself, his parts instead of four, and that Anthony S. heirs, executors, or administrators, does hereby Biggs, James, Velma, and Francis Biggs covenant, promise, and agree to and with said should not have been decreed as having any party of the second part, that at the delivery This is the only of these presents he is lawfully seized, in his interest in the property own right, of an absolute and indefeasible estate question for our determination. None of the of inheritance, in fee simple, of and in all and children of James Elward by his first wife singular the above granted and described prem-nor Bridget Elward by her first husband, nor ises, with the appurtenances; that the same persons who might claim under them have are free, clear, discharged, and unincumbered of and from all former and other grants, titles, estates, judgments, taxes, assessments, and incumbrances, of what nature or kind soever, except the mortgage above described, and that he will warrant and forever defend the same unto said party of the second part, her heirs above named and described, and assigns, against said party of the first part, his heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.

"In witness whereof, the said party of the first part has hereunto set his hand the day and year first above written."

appealed.

Appellants take the position that upon the death of Bridget Elward the title to the real property vested in the three children of James and Bridget Elward who were then living under either of two constructions which might be placed upon the instrument. First, if the deed at the time it was executed vested title in Bridget Elward with descent to heirs by procreation, the title would not vest until the death of Bridget and then only in the special heirs then living. Second, if the deed created a life estate only in Bridget, with remainder over to those who could be ascertained upon the death of Bridget and as of that event, then the title vested only in the children born of the wedlock who were then living at that time.

James Elward signed this by his mark and his signature was attested by two witnesses, was acknowledged before a notary public and the instrument was filed for record. James Elward died intestate January 7, 1905, and left surviving him his wife, Bridget Elward, Neither of these contentions is the correct his son John Elward, and his daughters interpretation of the instrument. The inAlice Biggs, Hanna Schweitzer, and Dora strument conveys the property to the wife Biggs, children of his marriage to Bridget without power in her to sell, but to have the Elward. (He also left children by his first use of it (jointly with the grantor while he wife.) Dora Biggs died intestate in May, lived) during her life, with the remainder in 1920, and left surviving her husband, An- the children of the parties to the instrument. thony S. Biggs, and three minor children, The class of persons in whom that remainder James, Velma, and Francis Biggs. Bridget vested was specifically designated and was Elward died intestate May 26, 1922, leaving known at the time the instrument was exechildren by her marriage to James Elward, | cuted. While it was possible for the numa son John Elward, and daughters, Alice ber of individuals in that class to be inBiggs, Hanna Schweitzer, also grandchil- creased by the birth of other children while dren, being the children of Dora Biggs. (She also left children by her first husband.) Hanna Schweitzer died in June, 1922, leaving her husband, C. E. Schweitzer and one minor child, Robert Glenn Schweitzer.

James Elward and Bridget Elward were both living, it could not be increased after the death of either of them. The individuals constituting the class in whom the title vested subject to the life use of James and Bridg

This suit in partition was brought by Johnet, were definitely known at the time of the El ward as plaintiff and he named as defendants Alice Biggs, C. E. Schweitzer and Rob

death of James Elward. At that time there were four living children of the union of

James and Bridget Elward, hence there were four persons who had vested title in the real property in equal shares subject to the use thereof by Bridget Elward for her life, and upon her death the real property was subject to partition among those four children or their heirs, if any of them were deceased, and this is the division made by the court. The judgment of the court below is affirmed.

All the Justices concurring.

STATE v. WILLSON.

(Supreme Court of Oregon. Dec. 2, 1924.)

1. Criminal law 369(1)—Prosecutrix's testimony of operation before one alleged held improper.

Prosecutrix's testimony that defendant made her pregnant, and performed two separate operations, resulting in death of fetus, prior to offense named in indictment, was improper as relating to distinct crimes not charged.

2. Abortion 6-Evidence of use of drug not admissible, under indictment alleging use of metallic instrument.

Under Or. L. §§ 1437, 1900, where, indictment alleges use of certain metallic instrument, evidence of administration or use of drug with intent to destroy child is not admissible.'

3. Criminal law 780(1), 785(1)—Requested instruction alluding to "complicity" of prosecutrix improper, but cautionary instruction as to her interest as affecting credibility should have been given.

Requested instruction, that fact that prosecutrix consented to alleged abortion, and "fact of her complicity," might be considered as affecting her credibility and weight of her testimony, was objectionable as alluding to prosecutrix as accomplice; but some cautionary instruction should have been given as to interest of prosecutrix.

"If any person shall administer to any woman pregnant with a child any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter." O. L. § 1900.

The grand jury of Union county returned an indictment against the defendant on February 5, 1924, the charging part of which reads as follows:

"The said E. O. Willson on the 2d day of November, 1923, in the county of Union and state of Oregon, then and there being, did then and there unlawfully and feloniously use a certain metallic instrument, by then and there inserting said instrument in the vagina and uterus of one Hazel Barnes, said Hazel Barnes then and there being pregnant with a child, with the intent, then and there, thereby to destroy such child, said use of said instrument not being necessary to preserve the life of said Hazel Barnes, and said defendant did then and there unlawfully and feloniously thereby produce the death of the said child, contrary to the statutes," etc.

A trial of the defendant on a plea of not guilty resulted in his conviction, and he appealed.

It will be observed that there are two classes of acts by which the crime defined by the statute may be committed. They are the administration of any medicine, drug, or substance, and the use or employment of any instrument or other means. It is required by section 1437, O. L., that the indictment must contain:

"A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."

It appears in evidence, in substance, that 4. Criminal law 507 (6)-Female operated the woman named in the indictment went to on by accused not accomplice.

In cases of abortion, female operated on is not an accomplice of one charged with the offense.

In Banc.

Appeal from Circuit Court, Union County; James A. Eakin, Judge.

work for the defendant in his dental office in June, 1922, and continued there until August 17, 1923. She testified that after that date there was no coitus between her and any one until November 9, 1923, and none afterwards. Meanwhile, she had been regular in her menses and suspected nothing until November 18th, when her catamenia were due, but did not appear. The prosecution relies upon November 9th as the date of the intercourse resulting in the pregnancy charged in the indictment. The whole history of the charge in the indictment is included between November 9, 1923, and December 18th of that E. R. Ringo, of La Grande (Ed Wright, of year, at which last date she claims she had La Grande, on the brief), for the State.

E. O. Willson was convicted of abortion, and he appeals. Reversed and remanded.

R. J. Green and F. S. Ivanhoe, both of La Grande (Jesse Crum, of Elgin, and Green & Hess, of La Grande, on the brief), for appellant.

a miscarriage.

[1] One class of objections to the proce BURNETT, J. There is an Oregon statute dure of the court is that the prosecutrix reading thus: was allowed to testify, over the objection

(230 P.)

and exception of defendant, that she became pregnant by him, and that he performed two separate and distinct operations upon her, resulting in the death of the fetus with which she was at the time pregnant, prior to the one named in the indictment. This is contrary to the rule laid down in this state in the following decisions: State v. O'Donnell, 36 Or. 222, 61 P. 892; State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258; State v. Start, 65 Or. 178, 132 P. 512, 46 L. R. A. (N. S.) 266; State v. McAllister, 67 Or. 480, 136 P. 354.

[3, 4] The defendant also complains of the refusal of the court to give to the jury the following instruction:

"I instruct you, gentlemen of the jury, that the fact that Hazel Barnes consented to the alleged abortion, and the fact of her complicity, may be considered by you as affecting her credibility as a witness, and the force and weight of her testimony."

The instruction is subject to criticism, in that it alludes to "the fact of her complicity." The weight of authority is to the effect

340:

*

"The deceased was not strictly an accomplice, * but the moral quality of the act and her connection with it were such as to entitle the appellant to have said instruction given to the jury."

According to the statement of the case in that precedent:

"At the proper time, appellant tendered an instruction to the effect that, in determining what weight should be given to the dying declarations, the jury might consider the fact that, according to her own admission therein, the declarant had used the catheter upon her perThe court reson to produce an abortion. fused so to instruct, and appellant reserved an exception."

Each of the acts described by the wit-that the female, in such instances, is not an accomplice, but, as stated in Seifert v. State, ness, and which were objected to by the de- 160 Ind. 464, 67 N. E. 100, 98 Am. St. Rep. fendant, were complete crimes in themselves. If this procedure were permissible, it ought to be laid in the indictment with a continuando, but the statute says that the statement must be without repetition (O. L. § 1437), and it is axiomatic that the evidence shall correspond with the allegations of the accusing document. One consequence of supporting the procedure allowed in this respect by the trial court would be that no defendant could know how many violations of the law he would be called upon to defend upon a single charge; neither would he know when his prosecutions for some offense would come to an end. Another result would be that, having narrated in testimony all the instances constituting separate offenses, and failing in the prosecution of one, the state could take precisely the same evidence, and, by changThe testimony for the state is to the efing the date of the indictment, prosecute afect that the woman named in the present defendant on the same testimony an indefi- indictment, accompanied by her sister, went nite number of times. The statute contem- to the defendant, complained that she was plates the statement in the indictment of a pregnant, and sought his assistance to prosingle offense, and that the evidence shall be duce an abortion, and so destroy the fetus confined to that charge alone of which the of which she was then pregnant. There were defendant has been informed. The principle two of these interviews, at each of which, acis settled in this state by the precedents cording to her statement, the prosecutrix, her sister, and the defendant were present, viz., on November 20th and 22d. Her motive of shame and dread of the disgrace attendant upon the discovery of her condition would naturally operate strongly on her mind to aid in bringing about the result she desired. She was deeply interested in the question, much more than any other witness, and hence, in fairness to the defendant, some such cautionary instruction ought to have been given.

cited.

[2] Another objection to the procedure was that, in the face of the allegations of the indictment confining the act to the use of "a certain metallic instrument," the state was allowed to produce testimony to the effect that certain drugs and medicines introduced and admitted in evidence were given by the defendant to the prosecuting witness on former occasions, for the purpose of producing an abortion and the destruction of the fetus of which she was pregnant in those instanc- In the instant case no qualified witness es. Likewise, she was permitted to testify had ever seen what could be called a fetus, that he furnished her the money to buy tur- and no one has said anywhere in the testipentine, which he administered to her to mony that the child of which the woman bring about the abortion of the fetus named was alleged to be pregnant is dead. The prosin the indictment. If the state would prove ecutrix relies upon sexual intercourse with such conduct, it should allege it in the in- the defendant on November 9, 1923. She dedictment, for it is one of the acts constitut-clared that she had frequent desire to uriing the offense. The state had no right mere-nate and had "morning sickness." These ly to allege the use of an instrument, and manifestations are classed as doubtful signs then add to that proof of the administration of pregnancy by some authors. 2 Witthaus or use of a drug with intent to destroy the & Becker, Med. Jur. 554; Draper, Legal Med. child. 173. She testifies that the defendant ad

(230 P.)

Suit by Frances V. Smith and another, said James Cram, Jr., trustee, a warranty against Henry Cram and others. Decree for deed conveying to him an undivided threeplaintiffs, and certain defendants appeal. fourths interest to the same real property Affirmed. described in said quitclaim deed. Said warranty deed contains these provisions:

"It being understood and agreed that the grantors reserve an undivided one-fourth interest in all of said property, and that the said James Cram, Jr., Lynn Cram, and Hazen Cram, hereinafter named, shall each own an equal interest in said undivided three-fourths interest therein when said Lynn Cram and Hazen Cram shall reach the age of majority, and, until such time, the said James Cram, Jr., to hold the title for their interests in trust for them, with power to dispose of or mortgage the same during said minority."

On the 13th day of February, 1918, when said quitclaim deed was executed, the said Henry Cram and his wife, Dora Cram, were attempting to adjust their marital troubles. The quitclaim deed was executed because the defendant Dora Cram refused to execute a warranty deed conveying to the sons of her husband, the said James Cram, Jr., and his brothers, the undivided three-fourths interest, excepting upon conditions to which the defendant Henry Cram was not willing to submit. For that reason, the quitclaim deed was executed and delivered by the said Henry Cram to the defendant James Cram, Jr., to a two-thirds interest in said real property. Henry Cram testified that he understood at the time he could not convey more than two-thirds interest in the property without his wife joining with him in the deed, which she refused to do at that time. Later the defendants Henry Cram and Dora Cram adjusted their differences, and, as a result, the warranty deed, above referred to, was executed and delivered by the defendant Henry Cram and his wife Dora to James Cram, Jr., as trustee.

This suit was instituted to collect a note for the principal sum of $31,000, accrued interest, and $2,500 alleged as reasonable attorney's fees; and to foreclose a mortgage on real property given to secure said note. The third amended complaint also prays for the reformation of the note and mortgage. The plaintiff's sought to reform the note by having the name of James Cram, Jr., as trustee, added to the note and to reform the mortgage by affixing seals to the names of Henry Cram and Mabel Cram, and by requiring the signatures of James Cram, Jr., as trustee, and his wife, Mabel Cram. The defendant Henry Cram is the father of the defendants James Cram, Jr., Lynn Cram, and Hazen Cram. Dora Cram is the second wife of the defendant Henry Cram, and is not the mother of the said sons of the defendant Henry Cram. On the 13th day of February 1918, the said Henry Cram made, executed, and delivered to his said son James Cram, Jr., a quitclaim deed to an undivided twothirds interest in and to the land involved in this suit. At that time, and for a long time prior thereto, the said Henry Cram was the owner of said real property and had theretofore, with his wife Dora, executed several mortgages against said real property, to wit: September 14, 1911, in favor of T. M. Baldwin to secure three promissory notes, one for the principal sum of $3,500, one for the principal sum of $3,000, and another for the principal sum of $1,800; March 17, 1917, in favor of Manford Nye to secure a note for the principal sum of $640.43; October 26, 1915, in favor of the First National Bank to secure three promissory notes for the principal sum of $4,000, one for the principal sum of $1,000, and another for the On or about January 28, 1919, the defendprincipal sum of $5,000; October 12, 1913, ant Henry Cram arranged with C. Sam Smith in favor of H. F. Powell, to secure a note for a loan of $31.000, for the purpose of payfor the principal sum of $14,580. All of ing off the mortgage indebtedness set out these mortgages were valid subsisting liens above. The negotiations leading up to this against said real property at the time that loan were conducted by the said Henry Cram the quitclaim deed, before mentioned, was as though he was the owner of the property. executed and delivered by said Henry Cram Henry Cram did not consult James Cram, to James Cram, Jr. After the said quitclaim | Jr., or either of the two other sons, with redeed was executed and delivered as afore- gard to making said loan or executing a said, the said Henry Cram and James Cram. Jr., entered into an agreement whereby the said James Cram, Jr., declared that he held title to the undivided two-thirds interest in said real property as trustee in behalf of himself and his two brothers Lynn Cram and Hazen Cram, who were minors. This declaration of trust was not recorded, and was not known to be in existence by any one except the parties thereto, the said Henry Cram and James Cram, Jr., until the taking of testimony in this suit. On the 15th day of October, 1918, the said Henry Cram and Dora Cram executed and delivered to the

mortgage against the real property, in which he had conveyed an undivided three-fourths interest to James Cram, Jr., and his two minor brothers. After the loan was agreed to, Henry Cram and his wife, Dora Cram, and at his request, James Cram, Jr., and his wife. Mabel, went to the office of Mr. M. R. Elliott, an attorney at law, who had been engaged in the practice of law at Prineville, Or., for 20 years, where these transactions were conducted for the purpose of executing the note and mortgage for the sum of $31,000 in favor of C. Sam Smith. James Cram, Jr., took no part in the negotiations leading up