¶2 November 2, 1921.
¶3 Appellant insists in his motion for rehearing that we erred in holding coffee-grounds to be food within the meaning of Article 1077, Vernon’s P. C. Commonwealth v. Caldwell, 76 N. E. 955, a Massachusetts case, is cited as authority for the contention. We have examined this case and do not agree with the conclusion reached therein in regard to this matter, which is that tea and coffee are not provisions, within the comprehension of a statute which forbids peddling provisions, etc., without license. No analysis worth mentioning appears in the opinion in that case, which seems to be decided on the authority of Com. v. Lutton, 157 Mass. 392, and Com. v. Reid, 175 Mass. 325. Neither case is authority for the holding in the Caldwell case. In the Eutton case the court merely decides that oleomargarine and butterine are provisions, and in the Reid case, that ice is not a provision.
¶4 In a charge such as that under consideration the gravamen of the offense is the intent of the accused to take human life by the use of poison, and while the law-makers have seen fit to make such use criminal when it consists in mingling the poison with food, drink or medicine, it appears to us unless there be some substantial doubt as to whether the article with which the poison was mingled be food, drink or medicine, the question would be of no great weight.
¶5 In addition to the authorities cited in our original opinion supporting the proposition that coffee or coffee-grounds are entitled to be considered as food, we call attention to Article 699, Vernon’s P. C., wherein it is stated that the term “food,” as used in our pure food laws, shall include all articles used for food, drink, confectionery or condiment, by man. We see no good reason for holding that Smith may be punished for selling adulterated food, to-wit: coffee, — under the pure food laws, and that Jones can not be convicted under another of our laws for trying to take life by mingling poison with a food, to-wit: coffee, when the only very dubious reason which can be assigned for the distinction is that coffee is a food under one law and not a food under the other.
¶6 We are in accord with State v. Ohmer, 34 Mo. App., 115, which holds tobacco not to be a food; and not in disagreement with Botelor v. Washington, 3 Fed. 962, which holds rye chops to be food for animals, but not of the human species. We also think it too restrictive to require that what is meant by the term “food” be some article in a then condition for immediate human consumption without further process.
¶7 Our opinion is questioned for its statement that appellant testified that after placing the poison in the coffee-pot he recanted and sought to remove same but its presence had been discovered and he was prevented. This statement appeared in appellant’s confession and we *218 should have so stated, but the inadvertence was of no effect upon the conclusions reached.
¶8 Appellant also contends that if his confession be taken to establish that he put the poison in the coffee-pot, it must also be taken to establish that before said poison was actually taken by anyone, he changed his mind and went back to get the poison out of said pot but was prevented by same having been discovered and removed by another person, and further, that he can not be convicted upon proof of a mere intent to commit the offense in question. The question was one of fact. If appellant put the poison in food with intent to kill, the express terms of Article 1077 were met. If he did not it was a question for the jury to find under the facts. This contention is not akin to a voluntary return of recently stolen property, or the. removal of the load from a gun which was prepared for the purpose of committing murder, or the removal of a death trap prepared for a victim before any injury. There is no qualifying clause in Article 1077, supra, by which it is provided that if the poison be discovered and removed by some one else, or by the accused or his victim before the consummation of the intended crime, that there should be no guilt.
¶9 Being unable to agree with the contentions of appellant his motion for rehearing will be overruled.
¶10 Overruled.