Hicks v. Commonwealth

• Decision Date: 13 June 1889
• Citation: 9 S.E. 1024,86 Va. 223
• Court: Virginia Supreme Court
• Parties: Hicks v. Commonwealth.

9 S.E. 1024

(86 Va. 223)

Hicks

v.Commonwealth.

Supreme Court of Appeals of Virginia.

June 13, 1889.

Poison—Attempt to Administer.

An indictment charging defendant with attempting to poison, with intent to kill, one A., by buying the poison and delivering it to one L., and soliciting her to administer it in coffee to A., but which fails to allege that L. consented to do so, or that anything else was done, does not charge an offense, under Code Va. 1887, § 3669, declaring it a felony to attempt to administer poison in food, drink, etc., with intent to kill. Hinton, J., dissenting.

Perkins, Hoge & Hoge and Casscl, for plaintiff in error. The Attorney General, for defendant in error.

Lewis, P. This is a writ of error to a judgment of the circuit court of Pulaski county, affirming a judgment of the county court of that county, whereby the plaintiff in error was sentenced, in accordance with the verdict of the jury, to confinement in the penitentiary for a term of four years, for an attempt to administer poison to one James Anderson. The indictment charges, in substance, that George W Hicks, the plaintiff in error here, and Nancy Price feloniously intending to kill the said James Anderson, did attempt to administer to him a quantity of poison, called "strychnine, " by soliciting one Laura Long, for a promised reward, to administer the same; and that they, in furtherance of their design to kill as aforesaid, did deliver to the said Laura Long a quantity of the said poison, to be by her put into the coffee of the said Anderson, who at the time was boarding with her, etc. It is not charged, however, that she agreed to administer the poison, or that she did any act towards the commission of the crime.

There was a demurrer to the indictment, which was overruled, and the said Hicks, having been tried separately, pursuant to his election, was found guilty. He thereupon moved for a new trial, which motion was overruled, to which action of the court he excepted, and the facts are certified in the bill of exceptions.

The punishment for an attempt to administer poison is prescribed by section 3G69 of the Code, which enacts as follows: "If any person administer, or attempt to administer, any poison or destructive thing, in food, drink, medicine, or otherwise, or poison any spring, well, or reservoir of water, with intent to kill or injure another person, he shall be confined in the penitentiary not less than three nor more than five years."

The principal witness for the commonwealth was Mrs. Laura Long, whose uncontradicted evidence is substantially as follows: That on several occasions, at the house of the witness, in Pulaski county, the first being on the 31st of August, 1888, the prisoner spoketo her about poisoning "old man Anderson, " and said he knew Mrs. Price would approve it, as she had proposed to him (Hicks) to poison him. On the 18th of September the prisoner passed the house of the witness, on his way to Central to get the poison, saying to her, as he passed, that Mrs. Price had given him the money to buy it with. On his return he stopped at the house of the witness, and showed her the poison he had purchased. It was wrapped up in a paper, which was inside of an envelope, " which had on it a skull and bones and reading." It was strychnine, and he said he had gotten it that day at a drug-store at Central. He told the witness he wanted her to go with him to the spring, near by, where Mrs. Price would meet them, and deliver the poison to her, and tell her all about it. The witness said she could not go then, but would meet them there that night, about 8 o'clock, if that would suit. To this the prisoner answered that it would suit a great deal better, and that he would be present to see the poison delivered, and to witness the agreement. He then went on his way. The witness went to the spring at the appointed hour, and, after waiting there a little while, Mrs. Price arrived. She had a small package in one hand, which she said contained strychnine, and an envelope in the other. The package she handed to the witness, saying, "Here it is." She then directed the witness to put the poison in the old man's coffee that night when she got home, and told her as soon as he got "past speaking and dropped" to give the alarm, and to say that the old man had fallen dead; for all which she offered to reward her liberally. She said George (the prisoner) was "right out there, " pointing in the direction of the corn-field. The witness looked, and saw some one there, and called the prisoner, but he did not answer. Just then, at a signal from the witness, several men, in hiding near by, rushed up, and Mrs. Price ran away, and the witness delivered to one of these men (Mr. Brown) the package of poison she had just received from Mrs. Price. The witness also testified that she never agreed to administer the poison, and never intended to do so, and that she would not have done it for anything. "I wanted to fool Hicks, " she said, "because I wanted to catch him, and to let other people know it."

The connection of the prisoner with the matter, as detailed by Mrs. Long, is fully established by the record; and the question, therefore, is whether these facts constitute an indictable attempt, within the meaning of the law. We are of opinion that they do not, and, as they substantially correspond with the allegations of the indictment, it follows that the demurrer to the indictment ought to have been sustained. It is an elementary rule of criminal pleading that an indictment, in a case like the present, must allege some act done by the defendant of such a nature as to constitute an attempt, in a legal sense, to commit the contemplated of fense; otherwise the indictment will not be sufficient. Clark's Case, 6 Grat. 675; 1 Whart. Crim. Law, (9th Ed.) § 192. The question as to what is such an act is often a difficult one to determine, and no general rule, which can be readily applied as a test to all cases, can be laid down. It has been truly said by a philosophical writer that "the subject of criminal attempt, though it presses itself upon the attention wherever we walk through the fields of the criminal law, is very obscure in the books, and apparently not well understood either by the text-writers or the judges." And it may be added that it is more intricate and difficult of comprehension than any other branch of the criminal law. Each case must therefore be determined upon its own facts, in the light of certain principles which appear to be well settled. The difficulty generally is in determining the proximity of the act in question to the offense in contemplation.

An attempt to commit a crime is compounded of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act done towards its commission, (Code, § 3888; 2 Bish. Crim. Proc. § 71;) or, as Wharton defines it, "An attempt is an intended, apparent, unfinished crime." Therefore the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation...