Rosenbarger v. State
| Decision Date | 04 April 1900 |
| Docket Number | 19,130 |
| Citation | 56 N.E. 914,154 Ind. 425 |
| Parties | Rosenbarger v. The State |
| Court | Indiana Supreme Court |
From the Gibson Circuit Court.
Affirmed.
C. A Buskirk and J. W. Brady, for appellant.
W. L Taylor, Attorney-General, Merrill Moores, C. C. Hadley and James Kilroy, for State.
Appellant was charged by indictment with the crime of administering poison to one Alva Rosenbarger with the felonious intent to kill and murder. A trial by the court resulted in finding her guilty as charged, and her punishment was fixed at imprisonment for a term of seven years, and over her motion for a new trial she was sentenced accordingly.
The errors assigned are predicated upon overruling the motion to quash the indictment and in denying the motion for a new trial. The charging part of the indictment is as follows: "That one Rebecca Rosenbarger, late of said county, on the 6th day of November, A. D. 1898, at the county and State aforesaid, did then and there unlawfully, feloniously, and with premeditated malice, administer and procure to be administered to one Alva Rosenbarger a certain poison, to wit, hydrate of chloral, with intent then and there and thereby, him, the said Alva Rosenbarger, feloniously, purposely, and with premeditated malice, to kill and murder."
The crime charged is defined by § 1992 Burns 1894, § 1919 R. S. 1881 and Horner 1897: "Whoever administers, or procures to be administered, any poison to any other human being, or mingles poison with any food, drink, or medicine, with intent to kill or injure the person to whom the same shall be administered, if death do not ensue, upon conviction thereof, shall be imprisoned in the State prison not more than fourteen years nor less than three years."
It is urged by appellant's learned counsel that the court ought to have quashed the indictment because it is open, as they insist, to the following objections: (1) It is bad because of duplicity; (2) it is self-contradictory; (3) it is uncertain; (4) it charges the crime to have been committed by the administration of poison without specifying what quantity of the drug was administered.
It will be observed that the statute upon which this prosecution is based declares disjunctively that it shall be a crime: (1) For any one to administer any poison to any other human being. (2) To procure any poison to be administered to any other human being with intent, etc. So far as this case is concerned it may be said that the statute in question makes it a crime to do any one or both of two acts, namely, to administer the poison, or to procure the same to be administered. These acts under the statute are punishable alike.
The indictment, as it will be seen, charges conjunctively that appellant did "administer and procure to be administered to one Alva Rosenbarger a certain poison, etc." The violation of the statute in controversy by any one, in respect to either or both of these forbidden acts constitutes but a single offense, and subjects the violator upon conviction to the penalty therein provided. In fact it may be asserted that the proper construction to be placed upon a penal statute of the character of the one here involved is that where a person in one transaction commits any or all of the forbidden acts, he thereby violates the provisions of the statute but once, and incurs upon conviction the one penalty. This construction has been frequently adopted and followed by this court in cases where a statute of the character of the one in question was involved. In such a statute, the State, in charging the accused with having violated its provisions, may in a single count of the indictment, by using the conjunction and, as was done in the pleading in this case, in place of or, as employed in the statute, charge the commission of as many of the prohibited acts as may be deemed necessary to render the indictment applicable to the evidence, without making it subject to the charge that it is bad on account of duplicity, uncertainty, or that it is contradictory. On the trial of such a prosecution, if any one or all of the acts so charged to have been committed by the defendant be proved, he will be convicted, and will incur the punishment provided by the law. It certainly is not true, as insisted by counsel for appellant, that it was utterly impossible for appellant in one transaction to both administer and procure the poison to be administered to the person charged in the indictment. The word "procure" is employed in the statute in the sense of cause. That a person may in the...
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