Lead Opinion
delivered the opinion of the court:
Plaintiff in error was indicted, tried and found guilty of the crime of manslaughter and was sentenced to the penitentiary to serve an indeterminate sentence. The indictment was under an act passed in 1923 “to punish persons knowingly and willfully selling, bartering or furnishing for beverage purposes wood alcohol, compounds or preparations containing wood alcohol, or any poisonous liquor, which causes death, frоm its use as a beverage.”/Section 1 is as follows: “Whoever knowingly and willfully sells, barters or furnishes any wood alcohol, or any compound or preparation containing wood alcohol, or any poisonous liquor, to be used for beverage purposes, and death results from such use, shall be guilty of murder and punished accordingly.” (Laws of 1923, p. 317.) Plaintiff in error sued out a writ of error to reverse the judgment of conviction.
Plaintiff in error, with his two sons, conducted a soft drink parlor in the city of Pana at the time of his arrest, in October, 1923. George Baldwin, a resident of Pana, entered plaintiff in error’s place of business on October 11, 1923, and drank as a beverage some liquid which looked like whisky. Baldwin died the night of the day following. There was testimony of other deaths following drinking at plaintiff in error’s place of business. Some of the same liquor which was being sold at that place was analyzed and was found to contain 44.7 per. cent wood alcohol. There was testimony that others drank the liquor sold by plaintiff in error, following which they were made sick and became blind, for a time at least. It appears from the evidence that alcohol was purchased by plaintiff in error from Bob Smith, who apparently resided in the same city. He purchased five gаllons at one time, for which he paid $37, and another five gallons later, which had not been paid for at the time of his arrest. It was testified that wood alcohol sold for $1.45 to $1.60 and up per gallon. There was some testimony to the effect that plaintiff in error had stated at the coroner’s inquest that he supposed he was getting grain alcohol, but there was no direct evidence at the time of the trial to indicate that he purchased what he" supposed was grain alcohol, except the price paid and what he had previously stated at the coroner’s inquest. ,
The indictment contained six counts, all of which were based upon the death of Baldwin from wood alcohol poisoning. The first question discussed is the constitutionality of the act upon which the indictment is founded. It is argued that the act amends the Homicide act by making something murder which is not already therein contained, without setting out the act or section amended at length. It will be seen that the act does not purport to amend the existing law on homicide but is an independent act, which declares that one committing the act mentioned in the title and section shall be guilty of murder. When a law is, in fact, amendatory of a previous law in the sense intended by section 13 of article 4 of the constitution, the mere fact that the later act purports to be an independent act, and not amendatory, is unimportant. The court will consider it from the standpoint of what it is in reality. (People v. Wright,
It is next insisted that the indictment is insufficient in that it does not charge the sale of the liquor as .being the cause of the death but the drinking of it to be such "cause; that the sale is the thing prohibited, and that that fact should have been alleged as the cause оf the death. The act provides that if wood alcohol is sold, bartered or furnished for beverage purposes, and death results from such use, the offense shall be murder. The different elements constituting the crime of murder were contained in one or more counts of the indictment, namely, the name of the party charged, the person killed, the act done, the means employed, the injury inflicted, the result, time, рlace and fact of death, and the conclusion. In some of the counts, at least, the death is charged to have been caused unlawfully, willfully and with malice aforethought, against the peace and dignity of the people. Because a statute, in providing that if death follows the commission of certain acts the person so performing the acts shall be guilty of murder, does not in the same provision specifically define murder does not render the provision uncertain. The legislature in creating an offense may define it by a particular description of the act or acts constituting it) or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result. (16 Corpus Juris, 67.) The same general rules which govern and control in the indictment аnd trial for murder committed in any other manner govern and control as to a statute such as this, which states that certain acts shall constitute a particular crime, without further defining such crime. (Earll v. People,
.It is contended, also, that error was committed by the court in permitting evidence to be introduced of sales of liquor containing wood alcohol to other persons аnd that they died as a result thereof or became blind or nearly so; that such evidence had no tendency to prove motive or to fix.identity and was not inseparably connected with the offense charged. The general rule is that in a case of this kind the evidence must be confined to the point in issue, and therefore no evidence of a distinct substantive offense committed is admissible. (People v. King,
Instruction r given for the People is criticised because it states that while the certain acts therеin mentioned constitute murder, the instruction does not tell the jury what murder is. Plaintiff in error’s instruction 13 was given for that identical purpose. The instructions are to be considered as a series. It is not necessary that the whole law upon a given subject shall be stated in any particular instruction which is not intended as a direction to find a verdict. What we have heretofore stated as to the constitutionality of the law alsо has some bearing upon the further argument made against this instruction.
It is contended that instruction 6, which defined an accessor}', stating that an accessory could be convicted as a principal, was improperly given as there was no evidence upon which to base it, unless it be upon the theory that plaintiff in error furnished the wood alcohol and delivered it to the premises even though he may not have made the actual sales himself; that the sons could not have been considered as principals having a knowledge of the character of the liquor they sold, for they drank it themselves and were made sick by it. The evidence showed that plaintiff in error was the proprietor of the place and that he procured the alcohol and placed it on sale and the sons were working for him in selling the liquor. On these facts plaintiff in error would be considered in law as aiding, assisting and abetting the actual sales of liquor for beverage purposes even though he himself made no actual sale. If an instruction states the law correctly and is based upon legitimate evidence in the record, the propriety of its introduction is not made to depend upon the testimony actually showing a particular state of facts unless there is some further prejudicial reason disclosed. (People v. Everett,
It is contended that instruction 7, defining manslaughter, was improperly given because the act under which the indictment was drawn made the offense there stated murder and ■ no lesser offense constituting manslaughter was provided, and that as the indictment in every count charged murder and not manslaughter, if the proof failed in some of the elements necessary to be shown to constitute murder it would not show the lesser crime of manslaughter but the proof would fail altogether. Under an indictment for murder a conviction for manslaughter will be sustained. (Howard v. People,
Two instructions which it is conceded state the law correctly are objected to because it is contended they have no application to the case, and the general statement is made that they tended to prejudice the jury. One of these instructions discussed different tests as to the credibility of witnesses, and the other was upon circumstantial evidence. Without discussing either instruction, we think it is sufficient to say that under the evidence neither instruction was prejudicial to plaintiff in error.
Counsel also object to instruction 11, which had the effect of advising the jury that if plaintiff in error furnished wood alcohol, by himself or agent, to George Baldwin, in manner and form as charged in the indictment, he was engaged in an unlawful act which might produce the killing of a human being, and if the jury believеd such unlawful act resulted in the killing of Baldwin, they could take such fact into consideration in determining whether plaintiff in error was guilty of manslaughter. It is stated the instruction omits an essential ingredient of the crime, namely, that he knowingly or willfully sold or furnished the wood alcohol. What was said in discussing instruction 7 answers a part of the argument made as to this instruction. If the act charged is unlawful, it is not essential that the proof show all the elements necessary to convict for murder. There was not in the instruction an attempt to hold the plaintiff in error responsible for an independent act of the agent, but the wording of the instruction is such as to directly connect the act of any other person with the plaintiff in error. The wording is, “that the defendant sold or furnished, either by himself or agent, wood alcohol.” The testimony shows the agency was created by plaintiff in error for the purpose of carrying on the unlawful business and making sales of such liquor for beverage purposes. Section 145 of the Criminal Code (Homicide statute) provides that where such involuntary killing shall happen in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder. As heretofore stated, without in so many words referring to the conduct of a business, the statute refers to selling wood alcohol for beverage purposes, which indicates the conducting of a business. This would permit showing more than the one sale to Baldwin, either by plaintiff in error or those employed by him. This proof would furnish evidence of a violation of the law. The instruction, in our judgment, was not mislеading.
Instruction 12 is criticised because it told the jury that they might determine the question of the knowledge and intention of plaintiff in error from all the facts and circumstances. What we have heretofore said substantially answers this objection. The sale to other persons tended to show the knowledge and intention of the plaintiff in error, and the instruction was applicable and the giving of it was not error.
It is contended thаt numerous other instructions should have been given. One of these instructions told the jury that if the evidence disclosed that deceased drank liquor at another place, not furnished by plaintiff in error, and such evidence left in the jury’s mind a reasonable doubt as to whether wood alcohol or other poisonous substance was furnished by plaintiff in error, or that the particular wood alcohol or other poisоnous substance furnished by him occasioned the death of the deceased, then the jury should find him not guilty. Three instructions were given on behalf of plaintiff in error which in effect told the jury that if the evidence showed that, deceased received liquor from others or at another place and such evidence raised in their minds a reasonable doubt of plaintiff in error’s guilt, they should find him not guilty. The jury were told all that the refused instruсtion requested.
A number of other instructions requested and refused contained statements of the law covered in instructions given, and there was no reason to repeat them in somewhat varying language. Instruction 50 requested by plaintiff in error, intended as a cautionary instruction concerning certain evidence, gave undue prominence to the same, and there was no error in refusing to give it.
The objection that improper evidence was admitted of sales to other people has been heretofore passed upon in discussing instruction 11. This case is distinguished from People v. Gotler,
It is contended further that the evidence was insufficient to convict; that there was nothing to show that plaintiff in error knew he was receiving or selling wood alcohol until he found it out from the effect upon those he had sold to. While there was some evidence, first, as to the price which he paid for the alcohol, which was more nearly the price, as testified, at which grain alcohol sold than the price of wood alcohol, and some further testimony that plaintiff in error stated at the coroner’s inquest that he supposed he was obtaining grain alcohol, and that he saved some of the alcohol, which he stated he intended to have analyzed, yet the fact remains that he sold wood alcohol as a beverage, which resulted in the death of a human being. Plaintiff in error did not testify in his own behalf. The jury heard all the evidеnce, and we do not feel justified in setting aside the verdict of manslaughter.
The judgment of the circuit court of Christian county will be affirmed. .
T , Judgment affirmed.
Concurrence Opinion
specially concurring:
We agree that the judgment of conviction of manslaughter should be affirmed. The new statute is a useless piece of legislation, because the crime which it was designed to define was already .fully defined by existing statutes. It is of no consequence, therefore, whether the new act is vаlid. Some counts of the indictment are sufficient to support a conviction for murder or manslaughter under the provisions of sections 140 and 145 of the Criminal Code. Plaintiff in error was engaged in the unlawful business of selling intoxicating liquor for beverage purposes and the liquor he sold Baldwin was poisonous. The natural consequence of drinking the quantity of poisonous liquor sold by the bar-tenders employed for the purposе by plaintiff in error, to be drunk by Baldwin, was death, and the killing naturally resulting from the act of selling the poison for beverage purposes is murder. That the jury favored plaintiff in error by convicting him of the lesser included offense is an act of grace of which he cannot complain. It was error to permit witnesses to detail the serious results to others who drank the poison sold by plaintiff in error, because such details were not relevant. The guilt of plaintiff in error is so clearly established, however, that the errors occurring on the trial should not result in a reversal.