Langham v. State

• Decision Date: 23 December 1942
• Docket Number: 1 Div. 160.
• Citation: 243 Ala. 564,11 So.2d 131
• Parties: LANGHAM v. STATE.
• Court: Alabama Supreme Court

11 So.2d 131

243 Ala. 564

LANGHAM v. STATE.

1 Div. 160.

Supreme Court of Alabama

December 23, 1942

Appeal from Circuit Court, Mobile County; D.H. Edington Judge.

Curtis L. Moody, of Mobile, for appellant.

Wm N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen for the State.

BROWN, Justice.

The defendant, appellant here, was convicted of murder in the first degree and sentenced to life imprisonment. The indictment contains four counts, the first charging that the defendant "unlawfully, and with malice aforethought killed William Grover Wilson, by burning him with fire." The second count charges that defendant with like design intent and purpose killed said Wilson "by giving him poison"; the third count charges the defendant with like design, intent and purpose killed said Wilson "by administering to him a quantity of poison," and the fourth count charges that the defendant with like design, intent and purpose killed said Wilson "by administering to him a quantity of poison, to wit; Mercury, a more particular description of which is to the Grand Jury otherwise unknown."

By demurrer, before pleading thereto, the defendant questioned the sufficiency of each of said counts on the ground that they do not aver with requisite certainty the means with which the homicide was effected. The demurrer was overruled and this ruling presents the first question in the case.

It is settled law that while the means with which a homicide is effected is not an element of the offense, never the less it is an averment of substance, not of form, and the omission of such averment from a count of the indictment renders it subject to demurrer. Gaines v. State, 146 Ala. 16, 41 So. 865.

The fourth count is not subject to this defect and the observation made in Scott's case is here pertinent. Said count "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 1896, § 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,' " which, as a matter of common knowledge, is deadly poison. [Italics supplied.] See "Poison," Webster's International Dictionary, p. 1664; Scott v. State, 141 Ala. 1, 37 So. 357, 358.

The rule of our cases is that when the drug or substance alleged to have been administered, as a matter of judicial cognizance, is poison, and when administered in sufficient quantity is deadly, it is sufficient to name the drug or substance in the indictment, but if the substance administered is not poison, as a matter of judicial knowledge, the indictment should aver that the substance so administered was "deadly poison, or such as was calculated to destroy human life." Shackleford v. State, 79 Ala. 26; Anthony v. State, 29 Ala. 27; State v. Clarissa, 11 Ala. 57; Nordan v. State, 143 Ala. 13, 39 So. 406; Wilson v. State, Ala.Sup., 8 So.2d 422.

In Nordan's case, supra, the court after criticizing the numerous counts in the indictment in that case, observed, "There is, to say the least, grave doubt of their sufficiency. As the indictment must be quashed for reasons that will be stated later on, and another indictment will have to be preferred, we take occasion here to say that we can see no necessity for multiplying the counts in the indictment, when two would be sufficient to meet any phase of the evidence in the case. For illustration: With proper commencement and conclusion of the indictment as provided in section 4923 of the Criminal Code of 1896, a count charging that the defendant, Walter L. Nordan, unlawfully and with malice aforethought killed Nola Nordan by administering to her poison, to wit, strychnine; and a second count, charging that Walter L. Nordan unlawfully and with malice aforethought killed Nola Nordan by causing to be administered to her poison, to wit, strychnine." [Italics supplied.] [143 Ala. 13, 39 So. 408.]

This cannot be regarded as a mere idle suggestion, but was incorporated in the opinion as a guide in drawing a sufficient indictment in that case.

The means by which the offense was committed not being an essential element of the offense, when such means is unknown to the grand jury, the statute provides, "The indictment may allege that they are unknown to the jury." Code 1940, T. 15, § 242; Duvall v. State, 63 Ala. 12.

In Clarissa's case, supra, it was said, "From this analysis of the statute, it follows, that the indictment should allege, that the substance administered was a deadly poison, or calculated to destroy human life, as it is necessary that every indictment should warrant the judgment rendered upon it. Yet every allegation in this indictment may have been proved, and the life of the persons against whom the supposed attempt to poison was made, never have been in jeopardy; as it cannot be known as matter of law, that the seed of the Jamestown weed is a deadly poison. The moral guilt, it is true, is as great in the one case as in the other; but that is not the offense which the law intended to punish; but the actual attempt to poison, by means calculated to accomplish it." 11 Ala. 61.

And in Shackleford's case, 79 Ala. at page 28, supra, it was observed, "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."

The second and third counts of the indictment are defective for failing to name the poison or allege that it was unknown to the grand jury.

Form 79, Code 1940, T. 15, § 259, p. 429, which reduces the averments in indictments for murder to a minimum, is in the following language: "A.B. unlawfully, and with malice aforethought, killed C.D., by shooting him with a gun or pistol, etc. (or by striking him with an iron weight, or by throwing him from the top of a house, or by pushing him into the river, whereby he was drowned, etc., as the case may be)." It will be noted that this form in each instance states the quo modo of the use of the instrument causing death. [Italics supplied.]

Count one follows in substance this form prescribed, the quo modo being burning with fire which caused Wilson's death.

In Scott v. State, supra, where the indictment averred that Scott "unlawfully and with malice aforethought killed John Scully by administering to him a quantity of morphine," it was said, "It was not necessary to aver how the drug was administered [that is through the mouth or by hypodermic injection], 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 shown by this averment to have been the means employed to kill, and that is all that is required." The quo modo there was the administration of a quantity of morphine, a deadly poison. See "Poison"--Webster's New International Dic., p. 1664. [Italics and brackets supplied.]

The evidence shows that the defendant is a young man twenty-seven years of age and a blood relation of William Grover Wilson, the person whom he is alleged to have killed, being his second cousin; that he was subject to the selective draft for the army under the Act of Congress, and while he had not been called, he volunteered and was accepted on the 25th of February, 1941, and was sent to Camp Blanding located in the State of Florida. That when defendant was but a boy of seventeen years, living at Loxley, Alabama, where he was born, his said cousin, the deceased, procured a job for him with the bakery company for whom deceased was working at the time and took him into his home where he lived as a member of deceased's family for ten years, and was so living when he volunteered and enlisted in the army.

The deceased's family consisted of himself, his wife Laura Wilson, two children, Nell a girl of 17, and "Bubber" 12 at the time of the trial, and the defendant.

Wilson was a man of small means, lived in a rented apartment and supported his family by his earnings from his employment. The defendant, as some of the evidence tends to show, worked and contributed to the support of the family. Wilson, the deceased, and his wife were of the same age, 38 years.

The evidence offered by the state shows that on Sunday afternoon of April 27, 1941, the clothing and bedclothing on the bed in which William Grover Wilson, the person alleged to have been killed, was lying, in some way was ignited with fire and he was severely burned and said burns caused his death on the morning of April 28, 1941.

Some few days after his death and burial the body was exhumed, the vital organs removed therefrom and a toxicological examination made thereof by a competent chemist, and a quantity of mercury found in one of his kidneys and in some of the other organs, which, according to the professional opinion of the chemist, would probably have caused his death within two weeks. Some of the other professional witnesses expressed the view that he would not have died on April 28th from the poison. There is no positive evidence that mercurial poison was unlawfully administered to said deceased. The evidence shows that Wilson was in the employ of the Malbis Bakery Company, that he went to Dr. McVay in September, 1940 to obtain a health certificate, and on examination it was disclosed that he was a syphillitic; that Dr. McVay treated him for syphillis, with benzoate of mercury and arsenic, giving him eleven "shots" alternating the mercury and arsenic treatment. That Wilson discontinued his visits to McVay for treatment before he was cured, but continued to work for the bread company on his route over Mobile and through parts of Florida and Mississippi;...