
    No. 8354.
    The State of Louisiana vs. Eliza Bartley.
    The indictment in this case is framed in accordance with Section 1048 of the Revised Statutes, and is good for a case of murder by poisoning, though the means by -which the murder was committed, the poisoning, is not stated in said indictment.
    Article 8 of the present Constitution did not repeal said Section 1048, and does not require any more than the latter does, that the indictment should state the means used to commit the murder.
    Evidence of the poisoning was, therefore, admissible under the charge of murder.
    The question of the admissibility of the defendant’s confession is one of law and fact mixed, inasmuch as said confession is admissible according as it was voluntary or not; it is, therefore, reviewable by this Court.
    The ruling of the Judge a quo on a question of this character, unless clearly erroneous, should not be disturbed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.
    
      
      Percy Roberts, for the Accused, Appellant:
    1. Under Article 8 of the Constitution of 1879, an indictment is fatally defective which does not inform the accused of the “ cause" as well as the nature of the accusation.
    2. Before the confession of the accused can be received in evidence, the State must show “ affirmatively,” that the confession was voluntary. 3 A. 499; 28 A. 927 ; 30 A. 881.
    3. Mere weight, or preponderancy of evidence in criminal cases, as to a fact, does nob prove the fact “ affirmatively ” 30 A. 1324; 5 Cal. 127; 10 Minnesota, 407.
    4. The credibility of a witness is a matter exclusively for the jury to decide. 29 111 287; 41 111. 10 and 251; 35 G-a. 75; 5 Michigan, 305 ¡ 26 A. 107; 30 A. 457; 3 L. 213; 5 L. 268; 43 Tex. 390.
    
      B. King Outler amd K. W. Gautier, on the same side.
    
      J. O. Ptgan, Attorney General, for the State, Appellee :
    1. Death by poisoning is murder. Blachstone, Vol. 4, p. 196; Archibald’s Cr. Pr. and PI., Vol. 1, p. 941, etc.
    2. It is unnecessary to set forth the manner in which, or the means by which, the death of deceased was caused, in an indictment for murder. R. S. 1048.
    3. Act 24 of 1878, and Sec. 789, R. S., treat of the crime of administering poison with intent to commit murder, and not actual murder by poisoning or otherwise.
    4. The accused is fully informed of the nature and cause of the crime charged when the indictment charges her with murder.
    5. "Where there is conflicting testimony as to the voluntariness of a confession made by the accused, it remains for the Judge a quo to decide the point and rule as to its admissibility.
    6. In ruling on the admissibility of such confessions the Court does not thereby pass upon the effect of such evidence.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, and convicted of manslaughter, and appeals from a sentence condemning her to pay a fine of one dollar and to be imprisoned twenty years at hard labor, in the penitentiary.

The alleged errors complained of, on which the accused bases her claim for relief, are:

1st, the overruling of the motion in arrest of judgment; and 2d, the admission of the confession of the accused in evidence.

The motion in arrest of judgment contains the following grounds:

I. That the indictment is insufficient in form and in siibstance, because, under Article 8 of the Constitution of 1879, the said indictment did not give the accused any information of the nature and cause of the accusation.

2: That the indictment simply charged the accused with the crime of murder, when, according to law (Act 24 of 1878), and considering the proof adduced by the State on the trial of the cause, the indictment should have charged and specified that death ensued from administering poison by defendant.

' Section 1048 R. S., provides:

In any indictment for murder, or manslaughter, it shall not be necessary to'set forth the manner in which, or the means by which, the death of the deceased was caused; it shall be sufficient in every indictment. for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased.”

The indictment in question is framed in accordance with this section. The counsel for the defendant, however, contend that it is opposed to Article 8 of the Constitution of 1879, which declares, “ that the accused shall enjoy the right to be informed of the nature and cause of the accusation.” And, inasmuch as evidence was offered and received to establish that the death resulted from poison, that the mode or means of the death should have been specifically set forth in order to meet this constitutional requirement.

We cannot believe that this clause in the Constitution was designed to repeal or affect the statute referred to. It is true that the clause is not found in the previous State Constitutions, but, nevertheless, it is not strict^ an innovation, and introduced no new principle in criminal prosecutions, since its exact language is borrowed from the Sixth Amendment of the Constitution of the United States. It has been the subject of construction by the United States Courts. Thus, in the case of United States vs. Mills, 7 Peters, 142, it was construed to mean, that the indictment must set forth the offense with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged.” See also U. S. vs. Cook, 17 Wallace, 174.

The indictment in question certainly fills these requirements as thus authoritatively construed. The accused is apprised with all necessary certainty that the crime with which she is charged is murder. The error of comisel is in confounding the nature and cause of the prosecution with the manner of the death, or means or instrument used to produce it.

Nor does the Act of 1878, referred to. possess any significance or bearing on this point, for the reason that that Act does not. relate to murder, by poisoning or otherwise, but refers to the administering of poison, or other drug, with intent to commit murder or rape. It is a strictly statutory offense. The evidence to show that the death was caused by administering poison was properly admissible under the averments of the indictment.

2. In regard to the admissibility of the confession of the accused, it depended upon a question of fact, that is, whether the confession was voluntary or not. This question the Judge had to decide, with a view to determine its admissibility. It was a matter largely within his discretion ; and after hearing and weighing the evidence touching the character of the confession, he held that it was voluntary and admitted it.

Whether the confession was voluntary or'not, and admissible or inadmissible, under the evidence submitted, is a mixed question of law and fact, which we are authorized to review; the evidence on the point being set forth in the bill of exceptions.

Though this is the case, the ruling of a Judge of the first instance on a question of this character should not he disturbed, unless clearly erroneous. The presence of the witnesses before him, their manner of testifying, character, etc., offered an opportunity of reaching a correct conclusion in the point at issue, superior to any we posess. Our examination of the Record, although the evidence is conflicting, satisfies ns that his ruling in this instance was correct. •

The argument of counsel would make it appear that this evidence, touching the character of this confession, was heard by the jury, that the witnesses were examined on this point before them, inasmuch as they complain that the ruling of the Judge as to the admissibility of the confession required his passing on a question of fact, and the credibility of witnesses, in presence of the jury, to the prejudice of the accused. The Record does not show that the witnesses testified touching this confession in the presence of the jury, and if they did, as the Judge was hound to decide the question of the admissibility of the confession, a question depending solely on the character of the confession, whether voluntary or not, we cannot well see how the effect of that ruling on the jury, though it might bear incidentally on a question of fact pertaining to the main issue, or on the credibility of witnesses, was to be avoided.

We are unable to discover any errors in the proceedings.

Judgment affirmed with costs.

Rehearing refused.  