Supreme Court—General Term.—First Department.

*June,*1887.

#### PEOPLE *v.*BURGESS.

Assault In First Degree—Foison.

To convict of assault in the first degree by poisoning, it is necessary to prove that by the administration of the poison life was endangered.

Appeal by defendant Alfred L. Burgess from a judgment of the Court of General Session of New York, Hon. Rueus B. Cowing, presiding, of November 15 1886, upon a conviction of assault in the first degree.

The indictment in this case was as follows:

“ The grand jury of the City and County of New York by this indictment accuse Alfred L. Burgess and Anna Mulholland of the crime of assault in the first degree, committed as follows : The said Alfred L. Burgess and Anna Mulholland, both late of the First Ward of the City of New York aforesaid, on the 7th day of May, in the year of our Lord 1886, at the Ward, City and County aforesaid, with force and arms, in and upon one Mary E. Burgess, then and there being willfully and feloniously, did make an assault, and. did then and there, willfully and feloniously, administer to and cause to be administered to and taken by her, the said Mary E. Burgess, a certain poison, to the grand jury aforesaid unknown, with intent in so doing her the said Mary E. Burgess’ thereby then and there willfully and feloniously to kill, by means whereof the life of her, the said Mary E. Burgess was then and there endangered; against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity.”

Second count: “And the Grand Jury aforesaid, by this indictment further accuse the said Alfred L. Burgess and *515Anna Mulholland of the crime of assault, in the first degree, committed as follows: The said Alfred L. Burgess and Anna Mulholland, both late of the Ward, City and County aforesaid afterwards to wit: On the day and in the year aforesaid at the Ward, City and County aforesaid, with force and arms in and upon the said Mary E. Burgess, then and there being, willfully and feloniously did make another assault and did then and there feloniously and willfully administer to, and cause to be administered to and taken by her, the said Mary E-Burgess, a certain destructive and noxious tiling to the grand jury aforesaid unknown, with intent in so ' doing her, the said Mary E. Burgess, thereby then and there willfully and feloniously to kill; by means whereof the life of her, the said Mary E. Burgess, was then and there endangered; against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity.”

In the month of April the defendant resided in the City of New York, his family consisting of his wife, a child two years old, and his wife’s sister Anna Mulholland. On April 30, defendant being then absent from the city, his wife was delivered of a child.

Throughout her confinement as well as during the time of the alleged administration of the poison to her, Mrs. Burgess was nursed by her sister who administered to her all the medicines which she took.

It was alleged by the prosecution that to remove Mrs» Burgess who was an obstacle to the guilty love of defendant and her sister Anna, that sister at the instigation of defendant poisoned her and that defendant also administered to her poison.

The medicines prescribed by the physician on May 7,1886, consisted of cauloph yllin and tincture of ipecac. Tincture of ipecac is of a reddish color, but the dose as prepared by the physician was colorless; the tincture of caulophyllin as prepared was of a reddish color. They were prepared in the presence of Mrs. Burgess’ sister, and left with her with *516directions as to how and when they were to be taken. The preparation of ipecac consisted of five drops of ipecac in a glass of water, all of which, if taken at once, was not enough to cause vomiting.

Shortly after the physician left, on the day in question, Mrs. Burgess’ sister came to her with a wine-glass and a flask or a small bottle, and in the wine-glass was a substance of the color of port-wine, light red. She drank it, and almost immediately afterwards vomited a greenish substance. In five or ten minutes she felt a burning sensation all the way down to her stomach which lasted all day. When the physician called the following day his suspicions not being aroused, he ascribed the vomiting to natural causes and treated the patient accordingly.

On the 7th of May, the defendant B., was absent at Princeton, H. J. and he returned home the next day, which was Saturday, and remained until the following Monday, when he again returned to Princeton.

On Sunday, the 9th of May, while at home, he personally administered to Mrs. Burgess a draft and immediately after-wards she vomited again the same greenish substance and felt the same burning and irritating sensations that had followed the taking of the substance administered by her sister on the occasion aforesaid.

About a week afterwards, in the absence of the defendant Burgess, Mrs. Burgess’ sister offered her a substance that looked like the substances she had taken with the results aforesaid on the 7th of May, but she refused to take it. Mrs. Burgess having refused to take this substance, her sister tempted her with soup and succeeded in inducing her to' take two tablespoonfuls of it. As soon as she did, she vomited again the same greenish substance that she had vomited on the former occasions as aforesaid, and felt the same burning sensations.

Shortly after these experiences, and on the 15th of May, Mrs. Burgess intercepted and got possession of a letter written by her husband to her sister, and in his own hand*517writing. This letter was addressed to Anna Mulholland, at Station M. of the New York Post-office. The letter is as follows:

“ Nassau Hotel, A. D. Cook, Proprietor, i Princeton, N. J., May 12,1886. j

My darling Anna—I arrived here safe and feeling very well, considering the circumstances. It makes me feel very lonesome to think that I am here all alone, whereas, if everything had turned out as I expected you could have been in charge of my little household. But never mind, we may have a chance before long to make another attempt. She wrote me to-day saying she didn’t know what I wanted to try and kill her for. She didn’t say in what way, but from what she said, I understood her to mean that I was getting instructed from down-town. I was sorry to hear that last attempt was a failure; but don’t give it up. Try something else. She might get suspicious if we give her any more of that for a little while on account of it burning. So I write her this evening telling her what I thought about the doctor. So if she asks you anything about it tell her you know nothing. Dear Anna, you will please keep an eye on Chip as I don’t want anything to happen to her. She might be spiteful enough to hurt her just because I think so much of her, but Dear Anna, if there was only a way out of this that I could call you my own is my sincere wish. Answer as soon as received and oblige.

Your dear lover,

A. I. B.”

The physician who attended Mrs. Burgess upon the occasion of her sickness aforesaid, was called upon the trial as a witness for the people and testified that the vomiting and burning sensations following immediately upon the taking of the substances administered to Mrs. Burgess, were symptoms of poisoning and might have been caused by poisoning. He also testified that in the case of a woman in her then condition, there are other substances that would cause *518these symptoms, which would not cause them in the case of one in a different state of health, but there was no evidence in this case of the vomiting and the burning sensation, except as the immediate result of things administered by the husband and sister on the occasion above mentioned, under the guise and appearance of food and medicine. The physician further testified that the medicines he prescribed and left could not have produced such results.

The defendant who was separately tried, offered no evidence whatever, and was convicted as charged.

*A Suydam,*for defendant appellant.

*Randolph, B. Martine,*district attorney, and *Mackenzie Semple,*(assistant) for the people respondent.

Van Brxtnt, P. J.

The defendant was indicted for having committed the crime of assault in the first degree. The indictment stated that the defendant together with one Anna Mulholland did wilfully and feloniously make an assault upon one Mary E. Burgess, and did then and there wilfully and feloniously administer and cause to be administered to and taken by her, the said Mary E. Burgess, a certain poison to the Grand Jury unknown, with intent to kill the said Mary E. Burgess, by means whereof the life of the said Máry E. Burgess was then and there endangered.

The defendant upon the trial of this indictment was convicted, and the question raised upon this appeal is whether the evidence was sufficient to justify such *conviction;*■there being no sufficient evidence to show that by the administration of the poison the life of the said Mary E. Burgess was endangered.

The evidence seems to be entirely sufficient to justify the conclusion that the defendant not only administered but also caused to be administered the poison to his wife with intent to kill. His letter, together with the testimony of Mrs. Burgess, shows conclusively the fact of such administration, and that the symptoms which arose after the admin*519istration by the defendant and by his sister-in-law of the liquid testified to were in no respect caused by the medicine which the doctor left to be given to Mrs. Burgess.

The question, however, upon this indictment is, as already stated, whether there was evidence going to show that this administration endangered the life of Mrs. Burgess.

Under the statute as it existed prior to the adoption of the Penal Code, this element of proof was not necessary, and it is difficult to see what end has been subserved by, instead of codifying the law upon this subject as it already existed, the insertion of the necessity of proof of an additional element, which makes it almost impossible to convict of assault in the first degree for the administration of poison. It would seem that the administration of poison with the intent to kill should be entirely sufficient as it was under the statutes to justify such a conviction although it may have been administered in consequence of ignorance in such large or small doses as not actually to have endangered human life.

Under the Penal Code, however, it is necessary that the proof should establish the fact that by the administration of the poison life was endangered. This it is almost impossible to prove. The poison is always administered secretly. 'The fact of the dangerous character of the dose can only be judged by its effects, and if death does not ensue, the proof upon this point is necessarily exceedingly difficult to procure.

The intention that the administration should be dangerous is involved in the proof of the intent to kill; and because of unskilful administration so that death does not ensue, the •character of the crime does not in any degree seem to be lessened. The offense is certainly as great as an assault by means of any deadly weapon with intent to kill.

Under the law as it stands, however, the evidence in the case at bar was entirely insufficient to show that by the administration of the poison in question the life of Mrs. Burgess was endangered, and consequently the conviction cannot stand.

*520The judgment should be reversed.

Daniels and Beady, J. J., concur.

Note.—Symptoms of themselves are insufficient to sustain a conviction , of administering poison. *Joe v. State,*6 Florida, 591; 65 Am. Dec., 579. See especially an exhaustive note oil poisoning in 65 Am. Dec., 587.

“It would be most unreasonable and lead to the grossest injustice, and, in some circumstances, to impunity of the worst of crimes, to require as an imperative rule of law that the crime of poisoning shall be proved’ by any special and exclusive medium ofproof, when that kind of proof is unattainable, and. especially if it has been rendered so by the act of the offender himself, No invariable and universal rule, therefore, can be laid down, and every case; must depend upon its own particular circumstances; and, as in all other cases, the *corpus delicti*must be proved by the best evidence which can be adduced.” Wills on Circumstantial Evidence, 233.

A person may be convicted of administering poison with intent to injure, although he committed the act with the intention of accomplishing another unlawful object. *People*v. *Carmichael,*5 Mich., 10; 71 Am. Dec., 769; *State v. Wagner,*78 Mo., 644 ; 47 Am. Rep., 131.

One who unlawfully administers poison to another must be regarded as-having done so with the intention of producing such effects as naturally result from its reception, and something more than mere ignorance must be shown to relieve him from the consequences of his unlawful act. *Id.*

The most recent case in this state on the subject is *People*v. *Stokes,*2 N. Y. Crim., 3S2. This case is important, and the doctrine there laid down applies to the case at bar.

To those who have occasion to make a special study of the difficult subject of murder by poisoning is recommended a very excellent work entitled,

“ Reports of Trials for Murder by Poisoning by Prussic Acid, Strychnia, Antimony, Arsenic, and Aconite, Including the Trials of Tawell, W. Palmer, Dove, Madeline Smith, Dr. Pritchard, Smethurst and Dr. Damson, with Chemical Introductions and Notes on the Poisons Used,” by G. Lathom. Browne and C. G. Stewart. Published by Stevens, London, 1883.

This work, as will be seen from the title, gives an account of the most celebrated trials for murder by poisoning in England in the present century, and is as valuable from the medical as from the legal point of view.

Three of the cases in this book, those of Palmer, Dove and Smethurstmay be also found in 3 Stephens’ Hist, of Grim. Law of England, 389, 426, and 438. See also the case of John Donellon, at page 371 of that volume.

In a recent Mississippi case the evidence showed that the accused gave a. powder which he called “ Rough on Rats ” to a boy and told him that he hated one H. and wanted to kill him, and told him to mix the powder with H’s. meal. The hoy having refused to do this, the defendant mixed it with, the meal, and the members of H’s. family who ate it became very sick but did not die. A chicken ate some of the meal and died, but it did not apappear how long after the eating it. *Held,*that the evidence was not sufficient to show the nature and character of the substance alleged to be poi-*521soiled. The court said: ‘‘ The evidence is not sufficient to show satisfactorily the nature and character of the substance charged by the indictment to-be poison. That persons were made very sick by it does not prove it was poison, and that a chicken died after eating meal containing this substance, does not prove it was poison. Chemical examination or the testimony of experts is not necessary, but the evidence of the action of the alleged poison must be sufficient to show it to be such. Many things taken into the-stomach may produce sickness which will not result in death, and the death of a chicken from eating what made human beings very sick is an unsatisfactory test of the poisonous nature of the substance. The character of the sickness of the persons, their symptoms, the remedies resorted to, the length of time after eating the bread, the duration of the sickness are not shown by the bill of exceptions. It does not appear that any one died from eating this substance. Many were made sick and all got well. Whether antidotes to poison were used, whether a physician was summoned, or whether each of the sick recovered without any remedial agent being employed, does not appear. If all sick recovered without resorting to antidotes or poison, it maybe gravely doubted if they swallowed poison. In order-to maintain a conviction under this indictment it must be proved that the-substance administered was capable of destroying life. As said above, this need not be proved by a chemist or expert, but may be proved by results ; but they must not be of doubtful or uncertain character. *Osborne*v. *State,*1 Southern Reporter, 349 (Mississippi, February, 1887.)

An indictment for the offense of attempting to poison a human being need not allege that defendant gave the substance to a person. Where upon the trial for that offense, evidence showed that the bread and meal used for the purpose alleged contained white arsenic, evidence to show a previous purchase of the article is competent; and where the purchase of a poison of uniform manufacture was proved, it is sufficient to admit evidence of the chemist’s analysis of the same article. *Commonwealth*v. *Hobbs,*140 Mass., 443; 1 New Eng. Rep., 541.

In two celebrated French cases of murder by poisoning, the case of Texier, 1 Plaidoyers de Me. Lachaud, 285, and the case of La Pommerais 2 Id.,. 69, maybe found two masterly arguments of the celebrated French advocate,. Lachaud.