96

nor a physician.95 The identity of the subject analyzed with that involved in the case, and the fact that it has not been improperly tampered with, must be shown, 95a though the evidence of identity need not be absolutely convincing before it should be permitted to go to the jury. A hypothetical question containing facts proved or claimed to be proved in connection with the poisoning may be asked, and it is not material that the question does not contain. all the facts if those omitted are brought out on the cross-examination. The fact that the expert heard that there was poison in the house, which fact, being viewed by him in conjunction with the symptoms, influenced him in forming an opinion that the deceased was poisoned, will not exclude his opinion.98

97

99

§ 319. Relevancy of evidence to show poisoning.-Malice may be reasonably presumed from the willful administration of poison in a quantity sufficient to cause death under ordinary circumstances. Evidence that a member of a family with whom the defendant had lived had died from the same poison which he is now accused of having administered is relevant to aid the jury in determining the probability that the death of the person with whose murder he is charged was accidental.100

The evidence which tends to show the poisoning or death of any other person than the deceased should usually be confined in its bearing to the motive of the accused, or should be only considered by the jury in determining whether the death of the deceased was accidental or not. The accused is usually in such cases entitled to have the court charge to that effect.1

357.

Scott v. State, 141 Ala. 1, 37 So. way v. State, 118 Ind. 482, 490, 21 N. E. 285.

Ga State v. Cook, 17 Kan. 392, 394. The fact that the jars containing the organs of the deceased were not hermetically sealed, State v. Thompson, 132 Mo. 301, 34 S. W. 31, and were not kept under lock and key does not exclude the analysis. State v. Cook, 17 Kan. 392, 394.

93

People v. Williams, 3 Fark Cr. (N. Y.) 84, 94-96.

98 Mitchell v. State, 58 Ala. 417, 420. "People v. Sanchez, 24 Cal. 17; Commonwealth v. Danz, 211 Pa. St. 507, 60 Atl. 1070.

100 Zoldoske v. State, 82 Wis. 580, 597, 52 N. W. 778. See ante, § 89. For evidence in prosecution for homicide in commission or attempt to commit abortion, see 63 L. R. A. 902, note; evidence in prosecution for homicide by commission of unlawful act, see 63 L. R. A. 353, note.

People v. Zajicek, 233 Ill. 198, 84 N. E. 249.

The possession of poison by the accused is an important fact and may always be proved." But evidence that the accused mixed poison or had poison in his possession is of little weight unless it is also shown that he had an opportunity to administer it.3 The evidence to show possession need not be direct, nor need the possession be exclusive. If it is shown that poison was in a house where the accused lived, within easy reach, and that he had knowledge of the fact, a conviction will be sustained.*

It is always proper for the state to show that the accused, or a person closely resembling him, purchased or had in his possession the poison which, it is charged, was the cause of the death of the deceased." Where the poison was mixed in food eaten by deceased it is competent to prove that the accused purchased the food. The inability of the witness to identify positively the accused as the person who purchased the poison or the food does not render his testimony incompetent. The witness, in fixing the date of the sale, may, if necessary, refresh his memory by reading from a shop book in which sales of poison are recorded," and may also testify that sales of a certain poison were not common and that there was only a small quantity on hand at the time as tending to show facts which aided him in remembering the sale.1o

The inference unfavorable to the accused, which may be created by proof that prior to the death of the deceased he had purchased and had in his possession, poison similar in character to that found in the stomach of the accused may be rebutted by evidence that he owned a farm and that farmers in his locality generally kept this poison for poisoning vermin.11

2

People v. Cuff, 122 Cal. 589, 55 Pac. 407.

3 Madden v. State, 1 Kan. 340.

4 Zoldoske v. State, 82 Wis. 580, 597, 52 N. W. 778; State v. Woodard, 132 Iowa 675, 108 N. W. 753. The court may, with propriety, enlighten the jury in its charge by defining such words as “anæsthetic,” “chloroform" and "poison." State v. Baldwin, 36 Kan. 1, 22, 12 Pac. 318.

State v. Woodard, 132 Iowa 675, 108 N. W. 753; State v. Rocker, 138 Iowa 653, 116 N. W. 797.

§ 319a. The declarations of the deceased.—The opinion of a physician that the accused died from natural causes may be received where it is based on his examination and on the declarations of the deceased as to her condition past and present made to him to enable him to prescribe for her.12 Hence, it follows that his declarations and statements of present pain and suffering should be received in evidence. His statements which constitute a part of the res gesta are always received. Thus the statements of the deceased made after he has taken medicine given him by the accused that he had taken it and describing its effect, should be received.13 And the statements of the deceased made while he was eating the food in which it is alleged the poison was contained is also admissible. 11

16

But a statement by the deceased descriptive of her illness made sometime after the date on which the illness commenced must be rejected.15 The dying declarations of the deceased so far as they are statements of fact and not of mere opinions are always received. Under the claim that the deceased has committed suicide it may be shown that he was at times despondent and ill, providing this condition is not too remote.1 So also it may be shown under the plea of suicide that the deceased had poison in his possession and his declarations showing an intention on his part to commit suicide have been received providing they are within a reasonable period before her death.18 There is, however, some difference of opinion in the cases as to the propriety of admitting the declarations of an intention to commit suicide. It seems that a statement that he intended to take his life is admissible but statements that he had poison in his possession is not received to show such possession or to show that the deceased knew the effects of the poison administered.19 In other words declarations of intent to commit suicide are received to show that the death of the deceased was not caused by the accused; but statements State v. Blydenburg, 135 Iowa S. W. 299; Boyd v. State, 84 Miss. 264, 112 N. W. 634. 414, 36 So. 525.

13 Nordan v. State, 143 Ala. 13, 39 So. 406.

State v. Thompson, 141 Mo. 408, 42 S. W. 949.

15

525.

Boyd v. State, 84 Miss. 414, 36 So. 425, 71 N. E. 1042.

15 Rice v. State, 54 Tex. Cr. 149, 112

19 State v. Kelly, 77 Conn. 266, 58 Atl. 705; State v. Marsh, 70 Vt. 288, 40 Atl. 836.

accompanying these declarations of intention will be rejected as hearsay.20

§ 320. Presumption and proof of malice.-The character of homicide, whether murder or manslaughter, and the validity and cogency of a defense involving justification or excuse for the act of killing, which itself is not denied, depends wholly upon the presence or absence of a malicious intent. To constitute the killing murder in the first degree malice existing at the instant of the killing, or, at least, at some time not too remote, must be shown, or circumstances must be shown from which it may be presumed.21 "Malice aforethought," or that degree of malice which makes a homicide murder, need not be shown by direct evidence. Malice is the outcome of a mental condition, and direct proof of a mental condition is usually impossible from the customary secrecy of motive leading to the crime.

If an unlawful homicide is proved to have been committed and is shown to have been the intentional and deliberate act of the accused, the law will presume malice from these facts alone and the intention to kill until he shall offer evidence to show mitigating, excusing or justifying circumstances. The legal presumption of malice aforethought arises from the deliberate use of a deadly weapon in a way which is likely to produce, and which does produce, death.22

20 State v. Marsh, 70 Vt. 288, 40 Atl. 836. For dying declarations, see Ch. X; also, Elliott Evidence, §§ 3031, 3032, 3033; 86 Am. St. 637, note; 56 L. R. A. 353, note; 63 L. R. A. 916, note.

21 State v. Johnson, 8 Iowa 525, 74 Am. Dec. 321; State v. Decklotts, 19 Iowa 447; State v. Peterson, 149 N. Car. 533, 63 S. E. 87; State v. Harmon, 4 Penn (Del.) 580, 60 Atl. 866; Bonner v. State, 125 Ga. 237, 54 S. E. 143; State v. Di Guglielmo (Del), 55 Atl. 350; State v. Kindred, 148 Mo. 270, 49 S. W. 845; State v. Strong, 85 Ark. 536, 109 S. W. 536. See Elliott Evidence, §§ 3016, 3017; 4 L. R. A. (N. S.) 934, note.

Other presumptions, § 3020; presumption of innocence, Elliott Evidence, § 3013; of intent, Elliott Evidence, § 3014; as to degree of offense, Elliott Evidence, § 3015; presumptions not conclusive, Elliott Evidence, 8 3015; when no presumption arises, Elliott Evidence, § 3018.

22

2 McLeod v. State, 128 Ga. 17, 57 S. E. 83; Ewing v. Commonwealth (Ky.), 111 S. W. 352, 33 Ky. L. 749: State v. Moore, 25 Iowa 128, 95 Am. Dec. 776n. See Commonwealth v. York, 9 Met. (Mass.) 93, 121, 43 Am. Dec. 373; Pressley v. State, 132 Ga. 64, 63 S. E. 784; State v. Prolow, 98 Minn. 459, 108 N. W. 873; State v. Hayden, 131 Iowa 1, 107 N. W. 929:

The use of such a weapon is a fact which, when proved, if no other evidence is offered on either side to show the contrary, raises a presumption of law that a deliberately formed design existed in the mind of the accused to kill the person on whom that weapon was used. Usually modifying facts are proved in connection with the killing. These facts may be of such a character that no necessity may exist for drawing a presumption from the use of a deadly weapon, or they may rebut the presumption. It is then for the jury to say on all the facts, whether malice or the deliberate intention to kill was present.