Sarah v. State

Smith, C, J.: The prisoner was convicted in the circuit court of Warren county, under the provisions of the fifty-third section of the statute of 1822, Hutch. Dig., 521. The indictment contains two counts. The first count charges the .willful, malicious, unlawful and felonious preparation of a certain medicine, namely arsenic, alleging the said arsenic to be a deadly poison, and that the prisoner well knew that arsenic was such deadly poison, “ with intent there and then to kill” the persons named in the indictment, “ contrary to the form of the statute,” etc. The second count charges the “ willful, malicious, unlawful and felonious” administration to certain persons named in the indictment, of “ a certain medicine commonly called arsenic, the said arsenic being then and there a deadly poison, by then and there mixing and mingling the said arsenic in certain coffee which had been prepared for the use of the said” persons, “ with the intent, then and there, that the said coffee should be administered to them for their drinking the same, and the said coffee, with which the said arsenic was so mixed and mingled as aforesaid, afterwards, namely, etc., in the county aforesaid, was delivered to the said” persons, “ then and there to be drunk; and said persons, not knowing said arsenic to have been mixed and mingled with said coffee, did afterwards, namely, etc., in the county aforesaid, take, drink and swallow, etc., a large quantity of said arsenic, so mixed and mingled with said coffee” by the prisoner “ with the intent then and there to kill the said” persons, “ contrary to the form of the statute,” etc. In the court below, before trial, a motion was made to quash the indictment, and after verdict the prisoner’s counsel moved in arrest of judgment. There was also a motion made for a new trial, which was overruled. Hence the cause is brought before — 755 — us by writ of error. The grounds relied on in support of these motions are now urged as reasons for reversing the judgment. First, it is insisted, that the indictment should have been quashed, because the prisoner was charged with two distinct, separate and independent felonies. The statute under which the conviction was had, provides that “ if any slave, free negro or mulatto, shañ prepare, exhibit or administer to any person or persons in this state, any medicine whatsoever, with intent to kill such person or persons, he or she so offending shall be judged guilty of a felony, and shall suffer death.” It is manifest, that distinct and separate offenses have been created by this act. To prepare any medicine with intent to kill any person, is a separate and distinct offense from the crime of administering such medicine for a like purpose. This is clear, for the evidence, which would sustain an indictment for the preparation by a slave, free negro or mulatto, of medicine with the intent to murder any person, would not be sufficient to convict, where the party is charged with the administration of any medicine for the same purpose. It must, therefore, be conceded, that the indictment charges the prisoner with two distinct felonies. But does it follow, hence, that the refusal of the court to quash the indictment is ground for reversing the judgment ? The rule is well settled that, in point of law, there is no objection to the insertion of several distinct felonies of the same degree in the same indictment, against the same offender.1 1 Chitty, Cr. Law, 253; Kane v. The People, 8 Wend., 203; 12 ib., 425; Wash. v. The State, 14 S. & M., 120. But while this is the acknowledged doctrine, both in this country and England, it is held in the courts of the latter country to be irregular, in — 756 — cases of felony, to charge upon the prisoner more than one distinct offense at one time in the same indictment. And if the joinder of more than one distinct felony in the same indictment be objected to before plea, the court will quash the indictment, lest it should embarrass the prisoner in his defense, or prejudice him in his challenge to the jury. But this appears to be regarded not as a right, strictly speaking, of the accused, but as a matter submitted to the discretion of the court, which it might exercise as a measure of prudence for the safety of the accused.1 Chitty, Crim. Law, 253; King v. Strange, 34 Eng. Com. L. R., 341. In the case last cited, which was an indictment under the statute of 7 Will. 4, and 1 Victoria, the offense of stabbing and cutting, with intent to murder, with intent to maim, and with intent to do grievous bodily harm, were all included in the same indictment; and notwithstanding the judgment is by the statute different, being for the offenses charged in the first count capital, and for the others transportation, the court even refused to compel the prosecutor to elect on which count he would proceed. The courts in many of the states of this confederacy have gone a step further, and hold that distinct felonies, of the same character, though differing in the degrees of punishment attached by law to their perpetration, may be charged in the same indictment against the same person. Wharton’s Crim. Law, p. 149. In the case at bar the felonies charged in the indictment differ neither in character nor in the punishments attached to their commission. They manifestly refer to the same transaction, and depend necessarily to some extent on the same evidence. I am, therefore, of opinion that the joinder of the two felonies charged in the indictment was not good ground for quashing it. Secondly. It ⅛ contended that the indictment should have been quashed, because there is no averment in either of the — 757 — counts, that the persons for whom it was administered, were “persons in this state.” In my opinion this exception is based upon a misconstruction of the statute. That construction assumes that it was the intention of the legislature, by the words “ in this state,” to designate the persons for whom, or to whom, to prepare or administer medicine with intent to kill, the statute declared to be a felony. That is, that the medicine must be prepared for or administered to a person within the state at the time of the alleged offense. Hence, that these words constitute an essential part of the description of the offenses created by the act. It cannot be imagined that the legislature deemed it necessary to declare that it was their intention to coniine the operation of the law to acts performed within her jurisdiction; as it will certainly not be contended that it was not known to it, that the statutes of this state could not extend to offenses committed without her jurisdiction. A medicine or a poison might be prepared for a person, not at the time of the preparation within the state, but neither could it be administered to any one, in such a way as to violate any law of the state, unless the person who might be the subject of the felony were, at the time of the administration of the medicine or poison, within the jurisdiction of the state. If, therefore, the words, “in this state,” employed in the statute, are understood as characterizing the persons against whom the offense must be committed, they are useless and unmeaning. But if these words are held to refer not to the persons against whom the offense may be committed, but to the felonious act itself, they are intelligible and proper, and the intention of the legislature becomes "manifest. It appeal's to me too evident to admit of question, that by the proper and legal construction of the statute, these words were intended to designate the jurisdiction in which the offenses are prohibited, and not as descriptive of the persons against whom they might be perpetrated. Upon this interpretation of the act, the counts in thé indictment, in reference to this exception, are unobjectionable. Thirdly. It is insisted that the second count in the indictment — 758 — charges the prisoner with two distinct felonies; and for that reason the court below erred in overruling the motion to quash. This objection is untenable. In the count under consideration it is averred, that the prisoner mixed and mingled the medicine with coffee, which had been prepared for the use of the persons intended to be killed; but the alleged act of mixing the medicine with the coffee is not charged as an act of felony. It is stated as a part of the means or manner in which the administration of the medicine was effected. This was not only proper, but essential, in order to show that the alleged act of administering the medicine came within the meaning of the statute. Fourthly. It is contended that a new trial should be awarded, upon tbe ground that the proof did not show that “ the poison or medicine was administered under a pretence that it was a medicine.” The statute affords no pretence for this exception. It declares, that “if any slave, free negro or mulatto shall prepare or administer to any person or persons, any medicine whatever, with intent to kill,” etc. According to the evidence, arsenic was administered, which is not only a medicine, but a poison, and such is the case with many articles used as medicines, depending upon the quantity in which they are given. The word “ administer,” as used in the statute, does not mean that the article given, in order to effect the felonious intent, must be given or administered under the pretence that it is a medicine. The manifest intention of the legislature was to punish any preparation, giving, or administration of any substance known as a medicine, with intent to kill. Fifthly. It is insisted that the court below erred in refusing to compel the prosecutor, upon the application of the prisoner’s counsel, to elect upon which count of the indictment he would proceed. We have seen1 that it was no objection to the indictment, tbat it charged the prisoner with two distinct felonies in separate counts; although it rests with the court as a matter of prudence and discretion to order the indictment to be quashed for that reason, when the objection is made before plea.2 The same an — 759 — swer may be given to this objection; it was a matter of discretion with the circuit court, and is, therefore, no ground upon which the judgment should be reversed.1 Rex v. Strange, 34 Com. L. R., 341; People v. Rynders, 12 Wend., 425; Cone v. Hope, 22 Pick. R. 1. Sixthly. It is contended that the court below erred in overruling the motion in arrest of judgment. ‘Neither count of the indictment charges the alleged felony to have been committed with malice aforethought. This, it is insisted, is a fatal defect. The words used in the statute are, “ with intent to kill.” In Bradley v. The State, 10 S. & M., 618, it was holden that an indictment for an assault with intent to kill, means an indictment for an assault to commit murder, according to the understanding of this court; therefore the words above quoted from the statute, mean “ with intent to commit murder.” Hence, the gist of the offense charged in the indictment is willful malice. It is unquestionably true, as a general rule, that in an indictment for an offense created by statute, it is sufficient to describe the offense in the words of the statute. But, it is manifest, that this rule can only apply in cases, in which there is a sufficient description of the offense intended to be created by the legislature. It is a mistake, says Justice Earl, (Blease v. The State, 1 McMul. R., 479,) to suppose, that it is always sufficient to allege the offense in the mere words of the statute; for where it consists of several acts, they should be averred with the same particularity, as at common law. The rule, adopted in this court, — 760 — is, that indictments, especially upon highly penal statutes, must state all the circumstances, which constitute the definition of the offense in the act, so as to bring the defendant precisely within it.1 Anthony v. State, 13 S. & M., 262. It follows, necessarily, from this doctrine, in all cases of felony, in which malice is the gist of the otfense, that the malice must be averred in the indictment; otherwise it will be defective, and the judgment arrested on motion. "We believe there is not a recognized exception to this rule either in England or this country. And this is the case, whether the offense exist at common law, or be one of statutory creation. Thus, in murder, where the death has been caused by the administration of poison, or by any other means, however indicative of a malicious intent, it is essential to charge the act to have been done with malice aforethought; and no other words will suffice. So, in an indictment under the statute of 9 Geo. 1, which made it felony for any person to burn any dwelling-house, out-house, barn, stable, etc., it was holden necessary, that there should be an averment of willful malice, although the statute did not contain the words “ willful and maliciousfor the reason, that malice was of the essence of the offense. 2 East, P. C., 1033. The statutes of 7 Will. 4 and 7 Viet., provide, that whoever shall administer, or cause to be administered, any poison or other destructive thing, “with intent to commit murder,’' shall be guilty of a capital felony. The only material difference between these statutes and the one under consideration consists in the use of the words, “ with intent to commit murder,” instead of — 761 — tbe words, “ witb intent to kill,” employed in the latter. Rut, according to the construction of this court, the words “ with intent to kill” mean “ with intent to commit murder.” The precedents of indictments, under the English statutes, all show, that it was deemed essential to charge the offense to have been committed with malice aforethought. And we apprehend, that it is not to be doubted, that an indictment, framed under those statutes, would be holden, in an English court, to be fatally defective, without such an averment. The statute, ch. 64, § 33, Hutch. Dig., 960, declares it to be an offense punishable by imprisonment in the penitentiary, for any person to shoot at another, “ with intent to kill such other person and the statute of 1822, ch. 37, § 55, Hutch. Dig., 521, makes it a capital offense for any slave “ to burn any dwelling-house, store, cotton-house, gin or outhouse, barn or stable.” But, in neither of the offenses created by these statutes, is willful malice made an ingredient, by express words. It will not, however, be denied, that malice is the very gist of each of these offenses. For, it is not to be doubted, that the legislature did not intend to punish a person for shooting at another in just self-defense, although such person intended to kill the assailant; or to punish a slave for setting fire to and burning his master’s stable or outhouse at his master’s command. These statutes furnish examples, which show conclusively, that wherever a malicious intent is an essential ingredient in the constitution of an offense created by statute, although it is not so made by the express words of the act, the indictment will be invalid, unless it contain an averment of the malicious intent. For, if indictments, framed under these statutes, would be valid, because they contain a description of the offense in the language of the statute, the consequence would be, that the jury would be compelled to convict, and the court to pronounce judgment, however innocent the accused might be of any intent or act held criminal by the law. We are unable to perceive a distinction, in reference to the question under consideration, between the statute, under which the prisoner is charged, and the statute above referred to. For, in neither is malice, by express words, made an ingredient in — 762 — the offense therein defined. Hence, if it be necessary, in order to warrant the conviction of a slave for setting fire to and burning a stable, to charge the act to have been done with malice, it must, upon principle, be equally essential to charge the administration of poison with intent to kill, to have been done with malice aforethought, before the accused can be legally convicted of a capital offense. The indictment in the case of Anthony v. The State, above referred to, was framed under the statute of 1822, ch. 64, § 36, Hutch. Dig., 521; as amended by the act of 1825, Hutch. Dig., 532, art. 8, § 1. By the original act, it was made a capital felony for any slave to commit an assault and battery upon any white person, “ with intent to kill.” The amendatory act provides, that the foregoing act, “ when the killing does not actually occur, shall be so construed as to render the proof of malice aforethought expressly necessary, to subject the person or persons therein named to capital punishment.” The indictment charged the offense to have been committed “ feloniously, willfully, and of his malice aforethought.” The jury, upon the evidence submitted to them, found the accused guilty, and that the act was committed with express malice, and sentence of death was pronounced. Upon the removal of the cause into this court, the judgment was reversed, upon the ground of the insufficiency of the indictment, to authorize the punishment of death. The court say, the indictment contains no averment of that species of malice (that is, express) which alone authorizes capital punishment. This is a direct decision upon the question under consideration. According to these views, both counts in the indictment were defective. The court, therefore, erred in overruling the motion in arrest of judgment. Let the judgment be reversed, and the prisoner remanded to be proceeded against in the court below. Footnotes [1] Wharton Am. Cr. Law, 414, et sequitur; Baker v. State, 4 Pike’s Ark., 56; People v. Rynders, 12 Wend., 425; Edge v. Commonwealth, 7 Barr, 275; Coulter v. Commonwealth, 5 Metc., 532; State v. Kirvy, Miss., 317; Mills v. Commonwealth, 1 Harris, 631; Hoskins v. State, 11 Ga., 92: Engleman v. State, 2 Carter, (Ind.,) 91; U. S. v. O’Callahan, 6 McLean, C. C. R., 569; Johnson v. State, 29 Ala., 62; Orr v. State, 18 Ark., 540; Young v. Rex, 3 T. R., 105; Rex v. Jones, 2 Camp., 132; Rex v. Saunders, 2 Burr., 984; Rex v. Kingston, 8 East, 41; Archbold Cr. Pr. & Pl., 310; Commonwealth v. Tuck, 20 Pick., 356; State v. Brady, 14 Vermont, 353; State v. Crocker, 3 Harr., (Del.,) 554; State v. Grisham, 1 Hayw., 12; State v. Flye, 26 Me., 312; People v. Austin, 1 Park. Cr. R. 154; State v. Patterson, 1 W. & M., 305; Commonwealth v. Manson, 2 Ashmead, 131 State v. Hogan, Charlt, 474. [1] Archbold Cr. Pr. & Pl., 310; Young v. Rex, T. R., 98; Wharton Am. Cr. Law, 414, 432; Kane v. People, 9 Wend., 203; Wright v. State, 4 Humph., 194; Weinzorpflin v. State, 7 Black., 186; State v. Hazzard, 2 R. I., 474; State v. Jacobs, 10 La. R., 141; Ketchingham v. State, 6 Wisc., 426; Commonwealth v. Hills, 10 Cushing, (Mass.,) 530; Donnelly v. State, 2 Dutch., (N. J.,) 463, 601; Lozier v. Commonwealth, 10 Gratt., 708; Rex v. Austin, 7 C. & P., 769; Rex v. Hartall, ib., 475; Rex v. Wheeler, ib., 170; Regina v. Pulham, 9 C. & P., 281; People v. Costello, 1 Denio, 83; State v. Hogan, R. M. Charlton, 474; Dowdy v. Commonwealth, 9 Gratt., 727; State v. Jackson, 17 Mo., 544; Mayo v. State, - 32; Cash v. State, 10 Humph., 111, 114; 1 Bishop Cr. Law, 206. [1] Supra; notes *755 >756. [2] Ibid. [1] Wharton Am. Cr. Law, 414; Baker v. State, 4 Pike’s Ark., 56; Edge v. Com., 7 Barr, 275; Coulter v. Com., 5 Metc., 535; State v. Kirvy, Miss., 317; Mills v. Com., 1 Harris, 631; Hoskins v. State, 11 Ga., 92; Engleman v. State, 2 Carter, (Ind.,) 91; U. S. v. O’Callahan, 6 McLean, C. C. R., 569; Johnson v. State, 29 Ala., 62; Orr v. State, 18 Ark., 540. In misdemeanors the joinder of several offenses will not, in genera], vitiate the prosecution in any stage. Wharton Am. Cr. Law; Young v. Rex, 3 T. R., 105; Rex v. Jones, 2 Camp., 132; Rex v. Saunders, 2 Burr., 984; Rex v. Kingston, 8 East, 41; Harman v. Com., 12 S. & R., 69; Com. v. Gillespie, 7 S. & R., 476; U. S. v. Peterson, 1 W. & M., 305; People v. Costello, 1 Denio, 83; Weinzorpflin v. State, 7 Black., 186; Com. v. Demain, Brightly, 441; U. S. v. Porter, 2 Cr. C. C. R., 60. In cases of felony, where two or more distinct offenses are contained in the same indictment, it may be quashed, or the prosecutor be compelled to elect on which charge he will proceed. Wharton Am. Cr. Law, 416; Kane v. People, 9 Wend., 203; Wright v. State, 4 Humph., 194; Weinzorpflin v. State, 7 Black., 186; State v. Hazard, 2 R. I., 474; State v. Jacob, 10 La., 141; Kitchingham v. State, 6 Wise., 426; Com. v. Hills, 10 Cush., 530; Donnelly v. State, 2 Dutch., (N. J.,) 463, 601. See Wharton Am. Cr. Law, 423. [1] Wharton Am. Cr. Law, S64; State v. Roster, 3 McCord, 443; State v. O’Bannon, 1 Bail, 144; State v. La Preux, 1 M’Mull., 488; State v. Noel, 5 Black., 548; Chambers v. People, 4 Scam., 351; U. S. v. Lancaster, 2 McLean, 431; State v. Duncan, 9 Port., 260; State v. Mitchell, 6 Mo., 147; State v. Helm, 6 Mo., 263; Ike v. State, 23 Miss., 525. For a very liberal view on this point see Com. v. Fogerty, 8 Gray, 489. See, also, State v. Gibbons, 1 South., 51; State v. Calvin, Charlton, 151; 1 Hale, 517, 526, 535; Staunf., 130 b; Foster, 433, 424; Hard., 2; Dyer, 304; Kelyng, 8; Com. Dig. Jus., G. 1; 1 Chitty on Pl., 357; Moore, 5; 1 Leach, 264; 1 East, P. C., 419; 2 Hale, 170, 189, 190, 193; 1 Eliz., c. 1, § 25; 3 Dyer, 363; 2 Lord Raym., 791; 2 Burr., 679; 1 T. R., 222; U. S. v. Lancaster, McLean R., 431; People v. Allen, 5 Denio, 76; Com. v. Hampton, 3 Gratt., 590; State v. Pratt, 191. If the indictmeut profess to recite the statute, a material variance will be fatal, or if the statute do not support the verdict, it must fail. Wharton Am. Cr. Law, 365; Butler v. State, 3 McCord, 383. Defects in the description of a statutory offense will not be aided by verdict (2 East, 333), nor will the conclusion, contra formam statuti, cure it. Lee v. Clark, 2 East, 333; 2 Hale, 170; Rex v. Jukes, S. T. R., 536; Com. Dig. Information, D. 3.