Com. v. Kennedy

• Decision Date: 27 November 1897
• Parties: COMMONWEALTH v. KENNEDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 18

48 N.E. 770

COMMONWEALTH v. KENNEDY.

Supreme Judicial Court of Massachusetts, Essex.

November 27, 1897

COUNSEL

Alden P. White, Dist. Atty., for the Commonwealth.

D.N Crowley and J.J. Cahill, for defendant.

OPINION

HOLMES J.

The first count is for mingling poison with food with intent to kill one Albert F. Learoyd. Pub.St. c. 202, § 32. The second count is for an attempt to commit murder by poisoning. Id. § 21. Whether the first count includes the matter of the second, with the effect that, even if the motion to quash the second count should have been granted the general verdict of guilty would stand on the first count (Com. v. Nichols, 134 Mass. 531, 536, 537), need not be decided, as we are of opinion that the motion to quash was properly overruled.

The second count alleges, in substance, that the defendant feloniously, willfully, and maliciously attempted to murder Learoyd by placing a quantity of deadly poison, known as "Rough on Rats," known to the defendant to be a deadly poison, upon, and causing it to adhere to, the under side of the crossbar of a cup of Learoyd's, known as a "mustache cup," the cup being then empty, with the intent that Learoyd should thereafter use the cup for drinking while the poison was there, and should swallow the poison. The motion to quash was argued largely on the strength of some cases as to what constitutes an "administering" of poison, which have no application, but the argument also touched another question which always is present in cases of attempts, and which requires a few words, namely, how nearly the overt acts alleged approached to the achievement of the substantive crime attempted.

Notwithstanding Pub.St. c. 210, § 8, we assume that an act may be done which is expected and intended to accomplish a crime, which is not near enough to the result to constitute an attempt to commit it, as in the classic instance of shooting at a post supposed to be a man. As the aim of the law is not to punish sins, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it. But, on the other hand, irrespective of the statute, it is not necessary that the act should be such as inevitably to accomplish the crime by the operation of natural forces but for some casual and unexpected interference. It is none the less an attempt to shoot a man that the pistol which is fired at his head was not aimed straight, and therefore, in the course of nature, could not hit him. Usually, acts which are expected to bring about the end without further interference on the part of the criminal are near enough, unless the expectation is very absurd. In this case the acts are alleged to have been done with intent that Learoyd should swallow the poison, and, by implication, with intent to kill him. See Com. v. Adams, 127 Mass. 15, 17. Intent imports contemplation, and more or less expectation, of the intended end as the result of the act alleged. If it appeared in the count, as it did in the evidence, that the habits of Learoyd and the other circumstances were such that the defendant's expectation that he would use the cup and swallow the poison was well grounded, there could be no doubt that the defendant's acts were near enough to the intended swallowing of the poison, and, if the dose was large enough to kill, that they were near enough to the accomplishment of the murder. But the grounds of the defendant's expectation are not alleged, and the strongest argument for the defense, as it seems to us, would be that, so far as this count goes, his expectation may have been unfounded and unreasonable. But, in view of the nature of the crime, and the ordinary course of events, we are of opinion that enough is alleged when the defendant's intent is shown. The cup belonged to Learoyd, and the defendant expected that he would use it. To allow him immunity on the ground that this part of his expectation was ill grounded would be as unreasonable as to let a culprit off because he was not warranted in thinking that his pistol was pointed at the man he tried to shoot. A more important point is that it is not alleged in terms that the dose was large enough to kill, unless we take judicial notice of the probable effect of a teaspoonful of Rough on Rats; and this may be likened to the case of firing a pistol supposed to be loaded with ball, but in fact not so, or to administering an innocent substance supposing it to be poison. State v. Swails, 8 Ind. 524, and note; State v. Clarissa, 11 Ala. 57. There is a difference between the case of an attempt and a murder. In the latter case the event shows the dose to have been sufficient, without an express allegation. But we are of opinion that this objection cannot be maintained. Every question of proximity must be determined by its own circumstances, and analogy is too imperfect to give much help. Any unlawful application of poison is an evil which threatens death according to common apprehension, and the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension, coupled with the great harm likely to result from poison, even if not enough to kill, would warrant holding the liability for an attempt to begin at a point more remote from the possibility of accomplishing what is expected than might be the case with lighter crimes. But analogy does not require this consideration. The case cited as to firing a pistol not loaded with ball has been qualified, at least, by a later decision,--Kunkle v. State, 32 Ind. 220, 229,--a case of shooting with shot too small to kill. And even in less serious crimes, especially in view of Pub.St. c. 210, § 8, impossibility of achievement is not necessarily a defense. For instance, in an attempt to procure an abortion upon a woman not pregnant. Com. v. Taylor, 132 Mass. 261; Com. v. Tibbetts, 157 Mass. 519, 32 N.E. 910. So in an attempt to pick a pocket which is empty. Com. v. McDonald, 5 Cush. 365. See, also, Com. v. Jacobs, 9 Allen, 274. In the case of crimes exceptionally dealt with or greatly feared, acts have been punished which were not even expected to effect the substantive evil unless followed by other criminal acts; e.g. in the case of treason (Fost. Crown Law, 196; Rex v. Cowper, 5 Mod. 206), or in that of pursuit by a negro with intent to commit rape (Lewis v. State, 35 Ala. 380). A familiar statutory illustration of this class is to be found in the enactments with regard to having counterfeit bills in one's possession with intent to pass them (Pub.St. c. 204, § 8; see Roberts' Case, Dears. Crown Cas. 539, 550, 551); and one which is interesting historically in the English statutes intended to keep secret the machinery used in modern manufacture (14 Geo. III. c. 71, § 5; 21 Geo. III. c. 37, § 6). The general provision of Pub.St. c. 210, § 8, already referred to, long has been on the books. A case having some bearing on the present is State v. Glover, 27 S.C. 602, 4 S.E. 564. For these reasons we are of opinion that the motion to quash the second count was properly overruled.

At the trial, exception was taken to the admission of evidence of an answer made by a child of four to an inquiry by the defendant where Mrs. Learoyd was. One of the motives attributed to the defendant was love for Mrs. Learoyd, and this inquiry and the answer were proved as a step towards the proof of a clandestine attempt to see her. It was shown that he turned away in a direction consistent with his having gone to the back door of the house,...