Leary v. State

• Decision Date: 21 July 1914
• Docket Number: 5454.
• Citation: 82 S.E. 471,14 Ga.App. 797
• Parties: LEARY v. STATE.
• Court: Georgia Court of Appeals

82 S.E. 471

14 Ga.App. 797

LEARY v. STATE.

No. 5454.

Court of Appeals of Georgia

July 21, 1914

Syllabus by the Court.

The decision in this case is controlled by the ruling in Leary v. State, 13 Ga.App. 626, 79 S.E. 584, which is necessarily the law of the case.

In legal significance the term "administer," when used in an indictment charging an assault with intent to murder by the administration of a certain substance in food necessarily conveys the thought that the substance alleged to have been administered was swallowed or partaken of by the person to whom it is alleged the substance was administered and for this reason the court did not err in overruling the demurrer to the indictment. There can be no administration of a poison or other injurious substance, used with the felonious intent of having a person swallow it, unless the intended victim partakes of it.

Though the indictment, which charged that the defendant did actually administer broken glass to the prosecutor, was sufficient to withstand the demurrer, the court erred in overruling the motion for a new trial, because the evidence was uncontradicted that the prosecutor discovered the fragments of glass in his food and declined to eat it, thus defeating the design of the accused upon his life.

Error from Superior Court, Lowndes County; W. E. Thomas, Judge.

Jule Leary was convicted of assault with intent to kill, and brings error. Reversed.

See also, 13 Ga.App. 626, 79 S.E. 584.

Franklin & Langdale, of Valdosta, for plaintiff in error.

J. A. Wilkes, Sol. Gen., of Moultrie, for the State.

RUSSELL C.J.

This is the second appearance of this case in this court. Upon a former review of the record, the judgment of the lower court was reversed because the court erred in overruling the demurrer to the indictment. In the former bill of exceptions, no question other than that of the defectiveness of the demurrer was presented. 13 Ga.App. 626, 79 S.E. 584. At the November term, 1913, of Lowndes superior court, the plaintiff in error was again indicted and placed on trial, and the present writ of error is brought for the purpose of reviewing errors alleged to have been committed upon the trial of the accused upon the new indictment. As to the two indictments the case presents a marked similarity to that of the case of Johnson v. State, 90 Ga. 441, 16 S.E. 92; Id., 92 Ga. 36, 17 S.E. 974.

1. Before pleading to the merits of the case, the defendant demurred to the indictment, both generally and on special grounds; the court overruled the demurrer; and exception was taken pendente lite. There was no error in overruling the special ground that the indictment did not charge the defendant with the procuring or inducing the prosecutor to swallow the glass. The indictment alleged that the defendant did actually administer and cause to be administered to the prosecutor the broken glass which was the deadly weapon alleged to have been used in making the assault; and it could not be inferred from this allegation that the assault was made by procurement or inducement. As to the ground in which the complaint is made that the indictment failed to charge in what manner the broken glass was deposited, it is enough to say that the indictment charged that the ground glass used by the defendant was deposited in certain collard greens and corn bread, which were administered to the prosecutor. The manner in which the broken glass was administered to the prosecutor, the ownership of the collard greens and corn bread, and whether they were cooked or not, were, of course, wholly immaterial to the guilt or innocence of the accused; and for that reason the fifth, sixth, and eighth grounds of the demurrer were without merit, and, as the indictment alleged that the glass was deposited in the collard greens and actually administered to the prosecutor, it would be, in the view that we take of the case, immaterial whether the prosecutor partook of the deadly eatables or desisted, not on account of the defendant, but through the intervention of some one else, or on account of his own timely discovery of the peril to which he was exposed. The court ruled correctly in overruling the general demurrer. The indictment under review when the case was here before charged that:

Jule Leary "unlawfully, feloniously, and with malice aforethought did put broken glass into the collard greens and corn bread of Lucius Zeigler, the said broken glass being a weapon likely to produce death, and the said broken glass being then and there deposited in said collard greens and corn bread with the intent then and there to cause said Lucius Zeigler to eat the same, and the said acts in and upon the said Jule Leary did thereby make an assault with the intent the said Lucius Zeigler to kill and murder, and the said Jule Leary with said broken glass which he then and there deposited as aforesaid did unlawfully, feloniously, and with malice aforethought attempt to kill the said Lucius Zeigler."

In the indictment now before us it is charged that:

"Jule Leary unlawfully, feloniously, and with malice aforethought, and with certain broken, ground-up, and shivered glass, which was then and there deposited by the said Jule Leary in certain collard greens and corn bread, and then and there administered to one Lucius Zeigler, a human being in the peace of the state, and the said broken, ground-up and shivered glass being then and there a weapon likely to produce death, in and upon one Lucius Zeigler, a human being in the peace of the state

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