Appeal
from general sessions circuit court of Abbeville county
ALDRICH, Judge.
McIVER
J.
The
indictment under which this defendant was convicted contained
two counts,--one charging that the defendant "in and
upon Blanche Clinkscales, an infant, then and there being
did make an assault, and her, the said Blanche Clinkscales
did force to drink a certain deleterious and injurious drug,
to-wit, tincture of asaf tida, thereby producing great and
dangerous sickness of the said Blanche Clinkscales, with
intent her, the said Blanche Clinkscales, then and there,
feloniously, willfully, and of her malice aforethought, to
kill and murder, contrary to the form of the statute,"
etc.; and the other charging an assault of a high and
aggravated nature, the aggravation alleged being the
administering and forcing her to drink "a certain
dangerous and deleterious drug, to-wit, tincture of asaf
tida." The jury having rendered a general verdict of
guilty, the defendant was sentenced to imprisonment in the
penitentiary for the term of two years, and thereupon she
appealed, upon the following grounds: Because the circuit
judge refused to charge as follows: "(1) That, even if
the prisoner administered tincture of asaf tida to the child,
she cannot be convicted, unless she administered it in such
large quantities as to endanger her life, or to do her great
bodily harm. (2) That unless the jury find that asaf tida was
administered in such quantity as to endanger life, or do
great bodily harm, the offense would only amount to a simple
assault and battery, and, this court not having jurisdiction
of simple assault and battery, the jury must acquit. (3) That
if the jury find from the testimony that the prisoner, at the
time of the alleged offense, was under fourteen years of age,
then it is incumbent upon the state to prove that the
prisoner was capax doli at the time of the alleged
offense. (4) Because his honor charged the jury that they
were to judge what effect a dose of asaf tida would have on a
child seventeen months old. (5) Because his honor charged the
jury: 'What was her purpose? And in considering that you
will consider this question: What did the defendant mean by
concealing the apron?' (6) Because his honor charged the
jury: 'Now, if she thought that that medicine would kill,
if she heard Mrs. Clinkscales tell the boy, "Now, mind,
one drop of this medicine will kill," you will take that
fact and consider
it.' (7) Because his honor did not charge the jury as to
the difference between assault and battery of a high and
aggravated nature and simple assault and battery; and the
jury, under his honor's charge, were not allowed to
consider at all whether or not the alleged offense amounted
only to a simple assault and battery. (8) Because his honor
refused to grant the motion in arrest of judgment--
First, when it appeared on the face of the
indictment that no offense was alleged for which the prisoner
could be indicted; second, when there was no
testimony whatever that an assault and battery was committed
by the prisoner upon Blanche Clinkscales; third,
when there was no testimony that asaf tida was a deleterious
or hurtful drug, and no testimony that an assault and battery
of a high and aggravated nature was committed;
fourth, when it appeared from the testimony that the
court of general sessions did not have jurisdiction of the
offense charged; fifth, when there was no testimony
whatever that an assault and battery was committed in
administering the asaf tida, and the jury could not,
where the prisoner was indicted for assault and battery,
consider the properties of the drug, or its effect when
administered, though they might have done so if the
prisoner had been indicted for poisoning; sixth,
when it appears that the statute against poisoning or
administering any other destructive drug, with
intent to kill, is exclusive, and prevents a person from
being indicted for assault and battery, who
administers a destructive drug with intent to
kill."
The
first and second grounds of appeal, together with the fourth
subdivision of the motion in arrest of judgment, seem to rest
upon the assumption that unless the drug was administered in
such a large quantity as to endanger life, or cause great
bodily harm, the offense could not amount to more than a
simple assault and battery. For this assumption we do not
think there is any valid foundation. There being two counts
in the indictment, and the verdict being a general verdict of
guilty, it must be understood to find the highest offense
charged, as there was testimony to support it. State
v. Nelson, 14 Rich. 169; State
v. Scott, 15 S.C. 434. We must therefore
regard this as a...
