
    The People of the State of New York, Resp'ts, v. Alfred L. Burgess, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June, 18, 1887.)
    
    Assault in the first degree—By means of poison—Proof insufficient TO SUSTAIN CONVICTION.
    This defendant was jointly indicted with another under the provisions of the Penal Code, for the crime of assault in the first degree. The indictment alleged that the defendant together with another did wrongfully and feloniously make an assault upon a person therein named, and did then and there wilfully and feloniously administer and cause to be administered to and be taken by her, the said person therein named, a certain poison, to the grand jury unknown, with intent to kill the said person named, by means whereof the life of said person, was then and there endangered. Held that the proof being insufficient to show that by the poison in question the life of the person to whom it was administered, was endangered, a conviction based thereon could not stand. See Penal Code, §317.
    
      Appeal from judgment of the court of general sessions.
    
      A. Suydam, for app’lt; Mackenzie Semple, for resp’t.
   Van Brunt, 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 Mary 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 administration 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, t’his 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 unskillful administration so that death does not ensue, the character of the crime does not m any degree seem to he 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 he reversed.

Van Brunt, P. J., and Daniels, J., concur.  