State v. Clark , 97 Miss. 806 ( 1910 )

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

The indictment is under section 1331, Code 1906, which is as follows: “Every person who shall mingle any poison with any food, drink, or medicine with intent to kill or injure any human being, or who shall wilfully poison any well, spring, or reservoir of water, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding ten years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or both.” Where a statute makes it a crime to do one thing or another, and a person by one act does both of the forbidden things, he violates the statute but once, and there is only one penalty; and an indictment under such a statute may in a single count charge the defendant with doing both of the forbidden things, “employing the conjunction ‘and’ where the statute has 'or/ and it will not be double, and it will be established at the trial by proof of either one of them.” 1 Bishop, New Criminal Procedure (4th ed.) §§ 436, 586; Bishop on Statutory Crimes (3rd ed.) § 244.

Under this statute it is not necessary foir the indictment to charge to whom the poison belonged, nor the food, drink, or medicine with which it is mingled, nor that it was in possession of the person for whom it was intended, nor that such person was about to or intended to drink the same. The corpus delicti consists in the mingling of the poison with the food, drink, or medicine. Stanley v. State, 82 Miss. 498, 34 South. 360. The indictment sufficiently charges the criminal purpose in mingling the poison and whiskey.

Reversed and remanded.