22 Ala. 9 | Ala. | 1853
1. It is contended by the counsel for the prisoner, that the indictment in this case is bad, because it charges the commission of several offences in one count— as, 1st. That the prisoner administered the poison to the persons named; 2d. That he caused the same to be administered ; and 3. That he administered and caused it to be administered to three individuals. We have examined these objections to the indictment with much care, and are constrained to hold that they are not well taken. It is certainly true, that an indictment must not be double; that is, the defendant must not be charged with having committed two or more offences in any one count. For example, it is not permissible to charge a defendant in the same count with having committed murder and robbery. Archb. Cr. PI. 50. Mr. Archbold says, the only exceptions to this rule are to be found in indictments for burglary, in which it is usual to' charge the defendant with having broken and entered the house with intent to commit a felony, and also with having committed the felony intended; and in indictments for embezzlement by clerks and servants, which, under the English statute, (7 and 8 Geo. 4, C. 29, § 8,) may charge any number of distinct acts not exceeding three. But he says, that laying several overt acts in a count for high treason is not duplicity, citing Kelyng 8; nor is a count that the defendant published and caused to be published a libel, liable to this objection, since, he says, they are the same offence; so of a count charging one endeavor to commit two offences, because the endeavor is the gist of the offence; and he further adds, that “ it is now generally understood that a man may be indicted for the battery of two or more persons in the- same count, or for a libel on two or more persons where the publication is' the same act.” — ib. 50; Rex v. Benfield et al., Burr. Rep. 982, overruling Rex v. Clendon, as reported in 2 Str. 870, and 2 Ld. Raym. 1572.
Several decisions in this court go very clearly to sustain the sufficiency of the1 count in this case. In The State v. Murphy, 6 Ala. Rep. 846, it was held, that although the language
In Mooney v. The State, 8 Ala. Rep. 328, the defendant, with two others, was charged in the same count, for that, on a certain day, they “ did unlawfully and feloniously inveigle, steal, carry and entice away, two negro slaves,” &c.; and upon' a demurrer this court said: “ These are all offences of the same grade, although there may be a slight distinction between the two classes of “ stealing and carrying away,” and “ inveigling and enticingand it was there held that, “ whether they were distinct offences or not, inasmüch as the 'same penalty was provided for each, they might be included-in the same count in the indictment.” We do not understand the court as holding that substantive and entirely distinct offences may be thus united, because the punishment is the same, but that when “ different grades of the same offence,” and which are punished by the same penalty, are embraced in one count, it is sufficient, and the State is entitled to the conviction of the accused upon proving either. The example of an indictment for forgery is a forcible illustration of the rule, in which, according to Mr. Chitty’s forms, (3 Chit. Cr. L. 1066,) it is usual to aver, that the prisoner “feloniously did falsely make, forge and counterfeit, and feloniously did falsely procure to be made, forged and counterfeited, and feloniously did willingly act and assist in the false making, forging and counterfeiting, a certain bond,” &c. Mooney v. The State, 8 Ala. Rep. 332, and cases cited in that opinion. These cases, we think, are sufficient to show that the indictment before us is not liable to the objection of duplicity. The offence consists in the attempt to destroy life, by administering to a white person any deadly poison; and that by this effort he compasses the lives of three instead of one, or that he places the poison in such a situation as to cause them to take it with the intent thereby of depriving them of life, and does not hand it to them himself, does not change the nature of the offence, except in so far as they may be considered circumstances of aggravation; nor do they in any wise affect the penalty.
The statute declares that any slave who shall attempt to poison, or to deprive any white person of life by any means not amounting to an assault, and be thereof convicted, shall suffer death. (Clay’s Dig. 472 § 4.)
The charge is, that the prisoner “feloniously, wilfully, and of his malice aforethought, did administer to, and cause to be administered to and taken by one George McKinney, Margaret A. McKinney, and one Nancy Herndon, then and there being free white persons, a large quantity of arsenic, to wit: one-half ounce thereof, which said arsenic, so administered and caused to be administered, was then and there a deadly poison, calculated in its effects to destroy human life, with intent, then and there, feloniously, wilfully and of his malice aforethought, to kill and murder,” &e., the persons named. It is too plain to admit of argument, that the wilful and malicious infection of the system with a deadly poison, with the intent to destroy life, is an attempt to poison within the meaning of the statute, and unless the rule is so stringent as to require the offence to be charged in the exact words of the statute, the indictment is unquestionably good. And here we need only to refer to the case of The State v. Bullock, 13 Ala. Rep. 413, to show that the indictment need not contain the exact words used in the statute, but that it is sufficient if the words used as descriptive of the offence be equivalent to those employed in the statute. We entertain no doubt of the correctness of this proposition. It is laid down in the works upon the criminal law, “that where a word not in the statute is substituted for one that is, and the
3. Having determined that the offence denounced by the statute is sufficiently described in the indictment, it follows that the third and fourth objections, namely, that the Circuit Court had no jurisdiction of the offence, and therefore erred in pronouncing the sentence prescribed by the statute, cannot be supported. It only remains to consider the fifth and last ground of objection to the regularity of the conviction, which is, that the record fails to show that the prisoner was served with a copy of the indictment and list of the jury, two entire days before his trial, or that the venire was returned into court. The case of The State v. McLendon, 1 Stew. Rep. 190, is cited to support this objection; but it will be observed that the counsel for the prisoner in that case, when the prisoner was brought before the bar for trial, objected that the list of the jury had not been furnished either to the prisoner or his counsel, two entire days before, &c.; and this was.
After a patient examination of the case, we are fully satisfied that there is no error in the record, and the judgment must consequently be affirmed.
As the sentence of execution of the prisoner was postponed, by order of one of the judges in vacation, under the provisions of the statute, it is necessary that another day be fixed. The day for his execution will accordingly be designated in the entry of affirmance.
AI-generated responses must be verified and are not legal advice.