Osborne v. State

• Decision Date: 14 February 1887
• Citation: 1 So. 349,64 Miss. 318
• Court: Mississippi Supreme Court
• Parties: ELIAS OSBORNE v. THE STATE

1 So. 349

64 Miss. 318

ELIAS OSBORNE v. THE STATE

Supreme Court of Mississippi

February 14, 1887

APPEAL from the Circuit Court of Panola County, HON. A. T. ROANE Judge.

The grand jury of Panola County found an indictment charging that Elias Osborne "did feloniously administer to human beings, to wit: Charles Hill and his wife and children, with intent to kill them, a certain poison, which poison was taken by said persons, but death did not ensue therefrom; the particular and technical name of said poison being to the jurors unknown, but it is commonly called 'Rough on Rats.'"

On the trial there was evidence which tended to show that Osborne had had a lawsuit with Hill, and had been defeated; that Hill had sent by a boy a bag of corn to a mill, to be ground into meal, and that Osborne stopped the boy on his return from the mill and put a certain powder, which Osborne called "Rough on Rats," in the bag; that Hill and his family became sick after eating bread made of the meal, and that a chicken died soon after eating of it. A further statement of the circumstances of the case will be found in the opinion of the court.

The jury found the defendant guilty, as charged in the indictment, and he appealed.

Reversed and remanded.

Miller & Rainwater, for the appellant.

We respectfully submit that it was absolutely essential to conviction, under this indictment, that there should have been proof that the alleged powder, "Rough on Rats," was a poison, in order to establish the corpus delicti. The indictment charged the administering of poison under the statute against poisoning, and it was impossible to make out a case against the accused without proof that the substance, administered was poison.

It has been held that an "attempt to poison is not committed by administering a substance not poisonous, even though believed to be so; because if it actually killed the person he would not have been poisoned to death," citing 11 Ala. 57; 12 Pick 173, and other cases. Elwell's Med. Juris. p. (3d ed.) 451; Ib., chap. 32, p. 439 et seq.; 1 Archb. Crim. Pr. &amp Pl. 958; 1 Whart. Crim. L., § 837; Ib., § 843.

There was no evidence whatever that "Rough on Rats," or that the powder mentioned by witness, was poison. In all cases of indictment for poisoning, it is universally the rule to introduce chemists, experts, or physicians to prove the article to be a poison, and where death ensues, we know that a post-mortem examination is frequently made, and simply because it is essential to prove it is poison.

J. R Chalmers, on the same side.

In this case there is no proof that Rough on Rats was poison, and this is essential.

"The nature of the poison or other noxious thing must be proved." Roscoe's Cri. Cr. 251.

T. M. Miller, Attorney General, for the State.

A poison is defined to be a substance having an inherent deleterious property which renders it when taken into the system capable of destroying life.

But since reason and evidence are co-ordinate factors when the administering of a substance is proved and it is shown to possess this active property I...