Chelsey v. State

| Ga. | Dec 9, 1904

Lamar, J.

(After stating the foregoing facts.) There are many decisions construing indictments for murder as defined by modern statutes, in which it is held essential to charge an intent to kill. But this grows out of the fact that, under these statutes, murder in the first degree is limited to cases where the killing is with deliberate and premeditated malice. But these rulings do not apply to indictments under the Penal Code, § 60, and at common law, where the killing is murder if the malice aforethought is implied, as well as to cases where the malice is express. The allegation that the act was done unlawfully, feloniously, and with malice aforethought is sufficient to characterize the killing as murder. Compare Cox v. People, 35 N. Y. 502; People v. Giblin, 115 N Y. 196; Schaffer v. State, 22 Neb. 560. Besides, Penal Code, §. 929, was intended to obviate the necessity for that strictness of pleading formerly required. As construed in Newman v. State, 63 Ga. 534, this indictment was good against the demurrer. For it was there held that “ the rule as to the sufficiency of an indictment is this: if all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad. But if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.”

In his charge the judge used the illustration of one recklessly shooting into a crowd, or throwing a heavy timber on a sidewalk where people are passing, as given in Cook v. State, 93 Ga. 201, and charged, as there, that in cases like these it is not “ required that there should exist any ill-will or express malice. The law implies malice from the act, and declares the killing to be murder.” We find no error in this instruction. It was applicable to the theory of the case arising from the evidence offered by the State.

The defendant attacks the charge, in view of his theory, on the ground that there was no intent to kill Arthur, but, if anything, an intent to kill Lou McKamie., He contends that the court erred in failing to instruct the jury that if the evidence showed that the defendant intended to kill her and not the deceased, they should acquit. But the act includes the intent. A person is in law supposed to intend the natural consequences of his act; and if he maliciously and unlawfully puts poison into a sack of flour, with the expectation that it is to be cooked into bread and eaten, he is conclusively presumed to have intended the death of any one who eats the bread and dies from the effects thereof. In placing the poison where it could be eaten, and with the intent that it should be eaten by the woman, the defendant was attempting to commit a felony. The law, as well as reason, prevents him from taking advantage of his own wrong, or excusing himself when the unlawful act strikes down an unintended victim. In legal contemplation the intent follows the act through to its legitimate result; and the original malice is transferred from the one against whom it was entertained to him who actually suffered the consequences of the felonious act. Compare Johnson v. State, 92 Ga. 39 (5), where it was said, in a case much like the present, that putting poison into coffee intended for the wife, but actually taken by the husband, “ betrayed a reckless disregard of his life, equivalent to an actual intention deliberately to kill him, and this meets in terms the definition of express malice as given in the statute.” See also Commonwealth v. Hersey, 2 Allen, 180, where the court draws the distinction between attempts with a specific intent, in which the intent must be alleged and proved, and those complete acts which are rendered penal. In the last class of cases “ the evil intention will be presumed, and need not be alleged, or, if alleged, it is a mere formal averment, which need not be proved. In such case the intent is nothing more than the result which the law draws from the act, and requires no proof beyond that which the act itself supplies.” Gallery v. State, 92 Ga. 463; Stovall v. State, 106 Ga. 447.

5. The other grounds of the motion may be more briefly treated. The plea in abatement was properly overruled. The evidence showed that the indictment as a fact had been duly returned. • The failure to make an entry on the minutes was an irregularity which was cured by the testimony of the bailiff and the clerk. The same is true as to the entry of the list of jurors on the unsigned minutes. Cribb v. State, 118 Ga. 316. Nor was there a good challenge to the array. The panels put upon the defendant had been regularly drawn in the method prescribed by law. There were more jurors drawn than were required to fill the panel. The fact that some of the number in excess were excused afforded no reason for challenging the array of those left. The evidence was amply sufficient to warrant the verdict. Even if the chemist had not recently made an analysis of a package containing “ rough on rats,” such analysis as he had made, coupled with the analysis of the flour, bread, and contents of the stomach, was sufficient to support the allegations in the indictment.

Judgment affirmed.

All the Justices concur.