State v. O'Mally

Beck, 3". 1. criminal law: pleading. I. Counsel for the defendant insist that the indictment is bad for the reason that, as it does not set out the threatening words used by defendant, it alleges a jgggj conclusion. The language of the indictment is, that defendant did “wilfully and maliciously verbally threaten to kill and murder Zenana Staats and P. S. Wood.” This is not the allegation of a legal conclusion, but of the act of defendant, and is sufficient without setting out the words used. The words of the defendant were not the gist of the offense, which is found in the intention of defendant to convey thereby a threat. The threat should be averred, and may be shown by the words used. 2. —;-. II. It is insisted the indictment charges two offenses, inasmuch as it is alleged that the threat was made against two persons. As we have said, the gist of the offense is the threat. It is shown to have been directed against two persons. Two threats are not alleged, but one threat against two persons. This constitutes but one offense. III. It is urged that the evidence fails to show a threat against two persons. We think there was testimony to that effect, and that the jury were authorized so to find. . IY. The defendant asked the court to instruct the jury that the threat charged in the indictment could not be established by proof of acts other than words spoken or written, or printed communication. This instruction was properly refused, for the reason that it is erroneous, and therefore would have been, if given, prejudicial to defendant. The indictment charges the threat to have been made verbally, and could not have been supported by evidence of a written or printed communication. An instruction given was to the effect that to authorize conviction the State must prove the threat as charged in the [503] indictment. The jury were, thereby, sufficiently informed that menaces by gestures or the like, if shown, should not be considered by them. Y. The testimony sufficiently supports the verdict. Affirmed.