#### THE PEOPLE OF THE STATE OF NEW YORK, Respondent, *v.*ALFRED L. BURGESS, Appellant.

*Administration of poison with intent to hill*— what *must be shown to justify a conviction under section*217 *of the Penal Code.*

To sustain a conviction of assault in the first degree for administering poison to any person with intent to kill him, as that offense is defined in section 217 of the Penal Code, it must he shown that the life of the person was endangered by the administration of the poison.

Appeal from a judgment of tbe Court of General Sessions, of the city and county of New York, convicting tbe defendant of an assault in tbe first degree.

*A.*Suydam, for the appellant.

*Mackenzie Semple,*for the respondent.

Van Brunt, P. J.:

Tbe defendant was indicted for having committed tbe crime of assault in the first degree. The indictment stated that the defendant, together with one Anna Mulholland, did willfully and feloniously *158make an assault upon one Mary E: Burgess, and. did then and there willfully and feloniously administer and cause to be administered to, and taken by her tbe said Mary E. Burgess, a certain poison, to tbe grand jury unknown, witli intent to kill tbe said Mary E. Burgess, by means whereof tbe life of tbe said Mary E. Burgess was then and there endangered.

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

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

Tbe 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 tbe 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 *159does 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 unskillful 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.

The judgment should be reversed.

Beady and Daniels, JJ., concurred.

Judgment reversed.