People v. Keeley

Fox, J. The defendant was convicted of malicious mischief in putting a poisonous substance into a watering-trough, with intent that the same should be taken and swallowed by the horses, etc. The appeal is from the judgment and the order denying a new trial-.

It is contended by the appellant that the information does not state that the crime was committed in Yolo County, the county in which the action was brought and tried. The making of such a point is trifling with, the court, for the very first allegation of the information is, that the offense charged was committed “on the twenty-fifth day of February, A. D. 1889, in the county of Yolo,” etc.

The next point made is, that the information does not charge a crime, in that it does not state that the act was feloniously done, and does not specifically name the poisonous substance, or that it was a substance that would kill; and here we are treated to along dissertation upon the fact that poison is found in a large number [212]of substances used for food and for medicine for both, man and beast. But there can be no misunderstanding of what the statute (Pen. Code, sec. 596) means when it uses the term “poisonous substance.” The offense is charged in the language of the statute, and the charge is sufficient. (People v. Lewis, 61 Cal. 366; People v. Henry, 77 Cal. 445; People v. Rogers, ante, p. 209.) There is nothing in People v. Van Deleer, 53 Cal. 147, cited _ by appellant, in conflict with this conclusion. There the question was as to the sufficiency of the proof and' the correctness of the charge.

Several exceptions are taken to instructions said to have been given at the request of the prosecution. A paper is found in the transcript, headed “Instructions asked by the people,” containing paragraphs numbered from 1 to 11 inclusive. The first objection is to the paragraph marked 1, but that is not indorsed as either given or refused. It is in no manner authenticated by the judge; nor is it brought up in any bill of exceptions. Taken by itself, it cannot be considered by the court as part of the record in the cause. (People v. January, 77 Cal. 179; People v. Rogers, supra.) But paragraphs 1 and 2 must .necessarily be read together to make sense of them as an instruction. The latter is marked “given,” and reading them together they make one complete instruction, not open to the objection made to either of them separately.

Paragraph 2, even if taken by itself, as an independent instruction, is not open to the charge of being misleading, as claimed by appellant, especially when followed by the very full and liberal instructions given at the request of the defendant.