Scott v. State

141 Ala. 1 | Ala. | 1904

McC-LELLAN, C. J.-

The indictment is as nearly analogous to the form prescribed in respect of averring the means by which the homicide was effected as may be, and is, therefore, sufficient. — Code, §4923, form 63, p. 333. The averment is that the defendant “did unlawfully and with malice aforethought kill John Scully by administering to him a quantity of morphine.” It was not necessary to aver how the drug was administered, or the particular way in which it affected him, nor that the drug was a poison or the quantity which was administered. The administration of a quantity of morphine is shoAvn by this averment to have been the means employed to kill, and that is all that is required. An indictment in essentially the same language has passed unchallenged through this court. — Duncan v. State, 88 Ala. 31. See Redd v. State, 68 Ala. 492, 496. The case of Shackleford v. State, 79 Ala. 26, is not in point here as will appear by reference to the cases of State v. Clarissa, 11 Ala. 57, and Anthony v. State, 29 Ala. 27, upon the authority of which Shackleford’s case was decided.

It is frequently impracticable in murder trials, and is never necessary, for the State at one and the same time and by one and the same witness to prove, or adduce evidence tending to sho w, the death, the cause or means of the death and the connection of the defendant with the death of the person alleged to have been killed. It is quite usual, and a practice wholly unobjectionable, for evidence of the death and the means of it to be received before any evidence is offered tending to- identify the defendant as the guilty agent. Of course, in such cases, if no evidence is brought out after proof of death, tending to connect the defendant with the act which caused the death, the evidence of death and its means should be excluded on defendant’s motion as being matters of no legal concern to him; but the court does not err in receiving such evidence in the first instance, and its lodgment in the case is given permanency by subsequently adduced evidence tending to show that the defendant caused the death by the means indicated by the previously received evidence. There was, therefore, no merit in the objections of the defendant to the testimony of Dr. Ross which were based on the ground that the corpus delicti had not been proved.

The testimony of this witness tended to show that the death of Scully was caused by morphine poison. Other witnesses, afterwards examined, testified to facts upon which it was open to the jury to find that the defendant administered this poison to- Scully with homicidal intent. The court, therefore, did not err in refusing to give the affirmative charge for the defendant.

It was shown that Dr. Ross was a chemist by education, profession and long practice, by occupation, the professor of chemistry in the Alabama Polytechnic Institute and, by virture thereof, State Chemist. It appeared further that he was a texicologist of long experience, by which is necessarily implied that he was acquainted with poisons and their effects and antidotes, and the effects of excessive doses of medicines. There is nothing in his testimony which was not properly received either to show that he was an expert in respect of overdoses of medicines, poisons, etc., and the effect-of poisons on the human system, etc., or as tending to show that Scully’s death was caused by morphine taken into his stomach, or that the morphine had hastened his death from the primal cause of pneumonia, and this though he was not a “druggist” nor a pathologist. There is no merit in any of the objections to the testimony of this witness.

Affirmed.