State v. Glover

• Decision Date: 05 January 1888
• Citation: State v. Glover, 27 S.C. 602, 4 S.E. 564 (S.C. 1888)
• Parties: STATE v. GLOVER.
• Court: South Carolina Supreme Court

4 S.E. 564

27 S.C. 602

STATE v. GLOVER.

Supreme Court of South Carolina

January 5, 1888

Appeal from general sessions circuit court of Abbeville county ALDRICH, Judge.

Indictment for assault with intent to kill, and for assault of a high and aggravated nature.On conviction, defendant appealed.

Jas. L Orr, for the State.

Eugene B. Gary and Frank B. Gary, for defendant.

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.Statev.Nelson, 14 Rich. 169;Statev.Scott, 15 S.C. 434.We must therefore regard this as a conviction under the first count, charging an assault and battery with intent to kill.In such a case the gist of the offense is in the intent, though...