Taylor v. State

• Decision Date: 18 January 1897
• Citation: 21 So. 129,74 Miss. 544
• Court: Mississippi Supreme Court
• Parties: LAWRENCE TAYLOR v. THE STATE OF MISSISSIPPI

21 So. 129

74 Miss. 544

LAWRENCE TAYLOR v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 18, 1897

October 1896

FROM the circuit court of Quitman county HON. F. A. MONTGOMERY Judge.

The facts are stated in the opinion.

Judgment reversed and motion sustained.

Fitzgerald & Maynard, for appellant.

The opinion of this court in Cook v. State, 72 Miss 517, clearly maintains our position. It is well settled that when the indictment is fatally defective this court will, even when no demurrer or motion in arrest is made, quash it. Kirk's case, 13 Smed. & M., 406.

The indictment in this cause does not charge that the intent to kill Gibson and others was with malice aforethought. When the charge in an indictment is the intent to kill some human being, the intent must be charged to have been with malice aforethought, or equivalent words. This requirement of law is not complied with in this case, by the charge that the mingling of the poison with the food was maliciously done, and the further allegation that the intent to kill was with "malice aforesaid." Sarah v. State, 28 Miss. 267.

The indictment must charge some act or fact, other than the mingling of the poison with the food, indicating the intention of accused to kill Gibson and other persons. It is not a crime to mingle poison with food, which is often done to kill vermin, hence the necessity for charging some act of defendant, other than the mingling of poison with food, so as to distinguish the intent to kill from such mingling without criminal intent. Jesse's case, 28 Miss. 100; Sarah's case, lb., 267; Harrington's case, 54 Miss. 490; Connelly's case, 66 Miss. 96; Sullivan's case, 67 Miss. 346; Maxwell's case, 68 Miss. 339; Rawl's case, 70 Miss. 739; Barkwell's case, 72 Miss. 535.

The indictment does not charge that the mixture was a deadly poison or calculated to destroy life. The drug itself is not charged to be a deadly poison, and if it be ever so virulent, it does not follow that the mixture would be likely to produce death. An allegation of an actual poisoning might imply that the means employed was a poison; but an indictment for an attempt to poison does not and cannot so imply. Anthony v. State, 29 Ala. 27; Osborne's case, 64 Miss. 318.

Wiley N. Nash, attorney-general, for state.

In the court below no objection to the indictment was taken until after verdict, then a motion was made in arrest of judgment.

The sole and single question in this court now is whether the indictment is sufficient after verdict--that is, whether the defects sought to be taken advantage of in this court can be raised in any other way than by demurrer.

This court is referred to § 1354, code of 1892, which says that all objections to an indictment for defects appearing on the face thereof, shall be taken by demurrer to the indictment and not otherwise, before the issuance of the venire in capital cases and before the jury shall be impaneled in all other cases, and not afterwards, and the court may for any formal defect, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.

It will be observed that this statute uses these strong terms: (1) all objections (2) shall be taken by demurrer (3) and not otherwise (4) before the issuance of the venire in capital cases and before the jury shall be impaneled in all other cases (5) and not afterwards. For formal defects the indictment can be amended and the trial proceed, from which the inference is irresistible that for a substantial defect the indictment must be quashed and a new one found or the prosecution cease. This shows that the legislature was dealing with substantial as well as formal defects in passing this statute. Our latest decisions on this statute say objections to an indictment for defects apparent on its face must be made by demurrer. Gates v. State, 71 Miss. 874; Norton v. State, 72 Miss. 128. By an inspection of this statute and a careful reading of the indictment, it will be seen that, in order to sustain this conviction, it is not at all necessary that this party should have intended to murder Gibson or any person, nor is it necessary that he should have intended to kill any one. If the poison was feloniously mingled with the intent to injure, etc., the offense is complete. It will be perceived, however, that the indictment goes much further.

Argued orally by Wiley N. Nash, attorney-general, for the state.

OPINION

STOCKDALE, J.

Lawrence Taylor was tried and convicted at the September, 1896, term of the circuit court of Quitman county, on an indictment charging him (after the formal part thereof) in the following words, to wit: "That one Lawrence Taylor late of the county aforesaid, on the twenty-first day of September, A. D. 1896, with force and arms, in the county aforesaid, and within the jurisdiction of this court, wilfully, feloniously and maliciously, did then and there mingle a large quantity, to wit, one drachm, of poison, to wit, strychnine, with a certain food, to wit, milk, with intent then and there feloniously, wilfully and of his malice aforesaid, to kill and injure one M. M. Gibson and other persons to the jurors unknown, contrary to the statute, " etc. After conviction he was sentenced to the penitentiary during ten years. Defendant (appellan...