Commonwealth v. Hersey , 84 Mass. 173 ( 1861 )

Bigelow, C. J.

The motion in arrest of judgment in the present case is founded on the omission to aver that the defendant, in administering poison to the deceased, did it with an intent to kill and murder. No direct authority or adjudication has been cited by the counsel for the prisoner in support of the position that such an averment is necessary or essential to the validity of the indictment. They do, however, rely on forms or precedents, which are found in text books of approved authority and in reported cases, in which the allegation that the poison was administered with intent to kill is distinctly set forth. Wharton’s Precedents, (2d ed.) 125-138. Archb. Crim. PL (5th Amer. ed.) 432. 2 Cox, C. C. Appendix, III. Davis’s Precedents, 182-186. But, on the other hand, it is certainly true that there are precedents entitled to equal respect with those cited by the prisoner’s counsel, in which no such averment is made, as a separate and substantive allegation essential to the description of the crime, and distinct from the general prefatory clause, in which a general intent to kill is stated without any averment of time and place. 2 Stark. Crim. Pl. 12, 15, 18. 1 East P. C. c. 5, § 116. 3 Chit. Crim. Law, 773, 779. The King v. Clark, 1 Brod. & Bing. 473. Regina v. Alison, 8 C. & P. 418. So far therefore as the question now raised depends on authority, it may fairly be said to be an open one. It would be giving too much force to mere precedents of forms, which often contain unnecessary and superfluous averments, to hold that a particular allegation is essential to the validity of an indictment, because it has sometimes, or even generally, been adopted by text writers or by cautious pleaders.

We are then to determine the question as one depending on the general rules of criminal pleading applicable to the description of similar offences. There can be nó doubt that, in every case, to render a party responsible for a felony, a vicious will or wicked intent must concur with a wrongful act. But it does not follow that, because a man cannot commit a felony unless he has an evil or malicious mind or will, it is necessary to aver the guilty intent as a substantive part of the crime in giving a technical description of it in the indictment. On the contrary, as the law presumes that every man intends the natural and necessary consequences of his acts, it is sufficient to aver in apt and technical words that a defendant committed a criminal act, without alleging the specific intent with which it was done. In such case, the act necessarily includes the intent. Thus, in charging the crime of burglary, it is not necessary to aver that the breaking and entering a house was done with an intent to steal. It is sufficient to charge the breaking and entering and an actual theft by the defendant. The reason is, that the fact of stealing is the strongest possible evidence of the intent, and the allegation of the theft is equivalent to an averment of that intent. Commonwealth v. Hope, 22 Pick. 1, 5. 2 East P. C. c. 15, § 24. So in an indictment for murder by blows or stabs with a deadly weapon, it is never necessary to allege that they were inflicted with an intent to kill or murder. The law infers the intent from proof that the acts were committed, and that death ensued. The averment, therefore, of the criminal act comprehends the evil or Wicked intention with which it was committed. The true distinction seems to be this: when by the common Jaw or by the provision of a statute a particular intention is essential to an offence, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision, and to support the allegation by proof. On the other hand, if the offence does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention will be presumed and need not be alleged, or, if alleged, it is a mere formal averment, which need not be proved. In such case, the intent is nothing more than the result which the law draws from the act, and requires no proof beyond that which the act itself supplies. 1 Stark. Crim. Pl. 165. 1 Chit. Crim. Law, 233. The King v. Philipps, 6 East, 474. 1 Hale P. C. 455. Commonwealth v. Merrill, 14 Gray, 415. To illustrate the application of the rule, take the case of an indictment for an assault with an intent to commit a rape. The act not being consummated, the gist of the offence consists in the intent with which the assault was committed. It must therefore be distinctly alleged and proved. But in an indictment for the crime of rape, no such averment is necessary. It is sufficient to allege the assault, and that the defendant had carnal knowledge of a woman by force and against her will. The averment of the act includes the intent, and proof of the commission of the offence draws with it the necessary inference of the criminal intent. The same is true of indictments for assault with intent to kill, and murder. In the former, the intent must be alleged and proved. In the latter, it is only necessary to allege and prove the act. The application of this principle to the case at bar is decisive of the question raised by the present motion. There is nothing in the nature of the crime of murder by poison to distinguish it from homicide by other unlawful means or instruments so as to render it necessary that it should be set out with fuller averments concerning the intention with which the criminal act was committed. It a person administers to another that which he knows to be a deadly poison, and death ensues therefrom, the averment of these facts in technical form necessarily involves and includes the intent 10 take life. It is the natural and necessary consequence of the act done, from which the law infers that the party knew and contemplated the result which followed, and that it was committed with the guilty intention to take life.

It was urged by the counsel for the prisoner, as an argument in support of the insufficiency of the indictment, that every fact stated in the indictment might have been done by the defendant, and yet he might have committed no offence; that is, that a person might administer to another that which he knew to be a deadly poison, from which death ensued, innocently and without any intent to do bodily harm. In a certain sense this is true. A physician, for example, might in the exercise of due care and skill give to his patient a medicine of a poisonous nature, in the honest belief that it would cure or mitigate disease, but which from unforeseen and unexpected causes actually causes death. And the same is true of many other cases of homicide produced by other means than poison. Take the case of a murder alleged to have been committed by stabs or cuts with a knife. Such wounds may be inflicted innocently and for a lawful purpose. A surgeon in performing a delicate and difficult operation, by a slight deflection of the knife, which the most cautious skill could not prevent, might inflict a wound which destroys life. But it has never been deemed necessary, because certain acts which cause death may be done without any wicked or criminal intent, to aver in indictments for homicide, that the person charged acted with an intent to take life. The corrupt and wicked purpose with which a homicidal act is done is sufficiently expressed by the averment that it was committed wilfully and with malice aforethought; and this allegation may be always disproved by showing that the act happened per infortunium, or was otherwise excusable or justifiable.

Motion in arrest of judgment overruled.