Randle v. State

• Court: Mississippi Supreme Court
• Writing for the Court: REED, J.
• Citation: Randle v. State, 105 Miss. 561, 62 So. 428 (Miss. 1913)
• Decision Date: 30 June 1913
• Docket Number: 16,670
• Parties: LIZZIE RANDLE v. STATE

62 So. 428

105 Miss. 561

LIZZIE RANDLE v. STATE

No. 16,670

Supreme Court of Mississippi

June 30, 1913

APPEAL from the circuit court of Chickasaw county, HON. H. K. MAHAN Judge.

Lizzie Randle was convicted of mingling poison with food with intent to kill and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

N. W Bradford, for appellant.

The indictment is clearly bad for duplicity. It charges two separate and distinct felonies with different penalties in the same count. It is based upon sections 1330 and 1331 of the Revised Code of 1906, and contains every element necessary to constitute the offense defined in each. The practice of joining two or more distinct offenses in the same count in an indictment has been repeatedly condemned by this court. Clue v. State, 78 Miss. 661; State v Stacks, 26 So., not officially reported; Jamison v State, 93 Miss. 685; State v. Freeman, 90 Miss. 315; Breeland v. State, 79 Miss. 327; State v. Walker, 88 Miss. 592.

The first instruction to the jury for the state is erroneous, 1st, because it falls short of the allegations in the indictment; 2nd, because it is in direct conflict with the only instruction given for the defense.

The evidence is insufficient to support the verdict of the jury. It fails to establish any notice sufficient to impel the accused to commit the crime or crimes alleged in the indictment. The poisonous character of the "green stuff" testified to as having been seen in the vomit of Annie Allen is not sufficiently established. No physician was summoned to attend Annie Allen; no chemical analysis of the green substance observed in her vomit was had, and its results are insufficient to stamp it as a known and recognized poison. Osborne v. State, 64 Miss. 320; Stanley v. State, 82 Miss. 498.

For these reasons I submit that the judgment of the lower court should be reversed.

Geo. H. Ethridge, assistant attorney-general, for the state.

The counsel for appellant assigns three grounds of error:

First. The court erred in overruling defendant's demurrer to the indictment;

Second. The court erred in granting the first instruction for the state;

Third. The court erred in overruling defendant's motion for a new trial.

The demurrer assumes the proposition that the indictment charges both offenses denounced by sections 1330 and 1331 of the Code. The court proceeded on the theory that the case fell under the terms of section 1331. Counsel states in his brief that everything necessary to be charged in making a valid indictment under each section is charged in one count of the indictment and that it comes within the rule disallowing two counts for different grades of offenses to be brought in the same indictment, or two separate offenses with different penalties.

Section 1330 of the Code is a section against a person who shall be convicted of having administered or caused, or procured to be administered any poison to any human being with intent to kill such human being, whereof death shall not ensue.

In Black's Dictionary, page 39, the words, "administer" is defined as follows: "In physiology and criminal law, to administer means to cause or procure a person to take some drug or some other substance into his, or her, system; to direct and cause a medicine, poison, or drug, to be taken into the system," citing 8 Ohio St. 131; 34 N.Y. 223; 11 Fla. 247; 1 Moody, 114; 23 Ohio St. 146.

It will also be noted that under this section, the clause, "whereof death shall not ensue," is an exception within the statute and must be negatived by proper plea. The two sections seem to have been drafted for the uniform purpose of checkmating the evil of poison. Section 1330 seems to contemplate prohibiting the taking of poisons as a medicine, or where the poison is administered to the person as a medicine or drug or is represented to be something other than a medicine and where death does not result from such taking. The original section in the Code of 1892 contained a clause that contemplated the actual taking of such medicine. I do not know whether that clause was omitted purposely or not but construction must be placed upon the statute so as to give each a scope sufficient to accomplish the particular purpose, and it was evidently not the purpose of the legislature to confine section 1331 simply to the mingling of poisons with food, or drug or medicine, where it was not given or placed for the other party to take.

The act, in this case, is a single act, and the one that the defendant was tried upon was the one most unfavorable to her, and I submit that if the indictment in seeking to charge the offense under section 1331 stated things not required that still it would not be bad to allege that it was administered and taken. Under the former practice of this state, questions of this kind were raised by motion to quash, and on such motion, the state was expressly permitted by the decisions of the court to make an election as to which offense they would proceed under. Since the Code has required defects appearing on the face of the indictment to be presented by demurrer on them, I think that it would be within the power of the court to permit the state to make an election and proceed on the proper offense and that the effect of the proceeding in this case was a distinct election on the part of the state to proceed under section 1331.

Whenever the state elects an offenes under a given series of acts and proceeds to trial on that theory, it has elected and is bound by its election and the defendant could at any time, if afterwards put on trial, show this fact and it would be a complete and full answer to any further proceeding by the state, because the state would not be permitted to institute a prosecution with full knowledge of all the facts and prosecute that case to judgment and then on the same facts proceed under another theory or another charge where the first was tried on the merits, and it has been frequently decided in the courts of this state and elsewhere that such a plea of res adjudicata may be established by parol evidence.

In the case of State v. Clark, 52 So. 691, this section was construed and while this case does not present precisely the point presented in the case now under consideration, it has an important bearing on the case and decides that it is not duplicity or the charging of two counts in the same indictment to charge an intent to injure and an intent to kill.

In Cannon v. State, 22 So. 827, it is said:

"Where an indictment charges two distinct offenses but the state's evidence was directed to one count, a general verdict of guilty which was undoubtedly based on that count, will not be set aside."

In the concluding paragraph of this opinion, the court said:

"If one of the counts had been bad (but in fact both were good) this general verdict would be referred to the count which was good and this count confessedly good was the one to which the state's evidence was directed and was undoubtedly the one on which the verdict was passed."

I think this language is applicable to the present case and that the indictment is certainly defective, if not void, as charging any offense under section 1330, but that is a perfectly good indictment under section 1331.

The second assignment of error that the court erred in granting the first instruction for the state cannot be considered on this appeal because it was not brought before the court on the motion for a new trial. The motion for a new trial appears in the record at page 62 and is limited to the claim that the court erred in overruling the defendant's demurrer to the indictment; that the court overruled the second demurrer to the indictment; and, third, because the verdict was contrary to the law and the evidence. The court's attention must be called to this instruction and even if it was erroneous, the court would not now consider it because the appellant will be deemed to have waived any rights on it by not bringing it forward in the motion for a new trial...