Shackleford v. State , 79 Ala. 26 ( 1885 )

SOMERYILLE, J.

The indictment is under section 4314 of the present Code (1876), which makes it a felony for one to “attempt to poison any human being, or to commit murder by any means not amounting to an assault.”

Under the authority of the previous decisions of this court, we hold that the indictment should have stated that the drug alleged to have been administered was a deadly poison, or such as was calculated to destroy human life.—Anthony v. The State, 29 Ala. 27; The State v. Clarissa, 11 Ala. 57.

The better rule, moreover, is for the indictment to specify the name of the poisonous drug used in the attempt, or, if it be unknown to the grand jury, to so allege. That this is necessary, however, we do not now decide. — Bishop on Stat. Crimes, (2d Ed.) §§ 756-757 ; Bishop’s Directions and Norms, §§ 188, 213 ; 2 Bishop’s Grim. Proc. (3d Ed.), §§ 644-648, 553, 514; Carter v. The State, 2 Ind. 617. Nor this defect, this judgment must be reversed, and the cause remanded.

The application for a change of venue was property refused. The statute requires that such an application should be made “ as early as practicable before the trial.” — Code, 1876, § 4911. Nor is this changed in any manner by the recent statute authorizing this court to review and revise the action of the primary court in refusing to grant such application. — Acts Ala. 1884-85, p. 140.

The record shows that the presentation of the motion for a change of venue in this case was unreasonably delayed. The cause was called for trial on three separate occasions between the sixth and seventeenth of March, and was each time passed at the request of the defendant, when an application was made to continue the cause, which was refused. And finally, when the application relating to venue was made, it was after the witnesses on both sides had been sworn and put under the rule, and the solicitor had expressed himself satisfied with the jury. Wolf v. The State, 49 Ala. 349; Code, § 4911.

There was no error in admitting in evidence the threat of the defendant to kill the witness Eliza Barnett, it being a part of the same conversation in which he had made a similar threat against Coon Penn — the person whom he was charged with attempting to poison. The witness was shown to be the paramour of both the defendant and of Penn, and it was not unnatural that jealousy should have prompted the injury of the rival in her illicit affections, as well as of the paramour herself. Threats against her were, under the circumstances, relevant to show the intensity of the defendant’s malice towards Penn ; and the threat made by him to kill the witness Eliza Barnett may have originated in a common motive of malice in view of her alleged illicit relations towards Penn. There was no error, therefore, in admitting evidence of the threat as testified to by this witness.

The charges given by the court, at the request of the State, were obviously correct, except the first, which was misleading, if not erroneous, in ignoring the consideration by the jury of any question as to the time when the offense was committed, and the matter of venne.

The judgment is reversed, and the cause remanded. The prisoner, in the meanwhile, will be. held in custody until discharged by the due course of law.