Commonwealth v. McLaughlin

Ac indictment on the Gen. Sts. e. 161, § 80, and c. 168, § 8, charging that the defendant attempted “ unlawfully, wilfully and maliciously to administer ” poison to a horse, and “in such attempt ” did an overt act, sufficiently charges that the attempt, and the intent with which it was made, were unlawful, wilful and malicious. It is not a material variance, if the evidence admitted to sustain an indictment for filling and saturating a potato with a liquid poison, with intent to administer it to a horse, shows that a hole was made in the potato and filled with bran saturated with the poison, without the potato itself being saturated.

Indictment on the Gen. Sts. c. 161, § 80,* and e. 168, § 8,† averring that Thomas McLaughlin, John Flanagan, and Frank Mulvey, on November 4, 1869, at Lawrence, “ did attempt to commit an offence prohibited by law, to wit, did attempt with force and arms unlawfully, wilfully and maliciously to administer to a certain horse, of the value of four thousand dollars, of the property of John W. Porter and George E. Porter, a large quantity of a certain poison called croton oil, that being an offence prohibited by law, and in such attempt did then and there do a certain overt act towards the commission of said offence, to wit, did then and there with force and arms unlawfully, wilfully and maliciously fill and saturate a certain potato with a large quantity, to wit, sixty drops of said croton oil, a poison as aforesaid, and with the said potato so filled and saturated with the said croton oil as aforesaid in their possession, did then and there in the night-time of said day enter the stable of the said John W. Porter and George E. Porter there in said Lawrence situate, and die then and there in the night-time as aforesaid climb over and inte the stall in said stable then and there occupied by said horse, with intent then and there to administer to said horse the said poison so prepared in said potato as aforesaid, by then and there giving to said horse the said potato so filled and saturated with said croton oil as aforesaid, to be then and there eaten by him the said horse, but said Flanagan, Mulvey and McLaughlin then and there did fail in the perpetration of said offence, and were intercepted and prevented in the execution of the same; against the peace of the Commonwealth,” &c. In the superior court, before the jury were empanelled, the defendants filed a motion to quash the indictment, “1. because said indictment does not allege that the attempt to commit the offence, described therein, was made unlawfully, wilfully or maliciously; 2. because said indictment does not well set forth an overt act towards the commission of the offence alleged to have been at tempted, in that the statement of the acts alleged to have been done does not import or describe an act or acts which would be done in such attempt; 3. because said indictment does not allege that said overt acts were done with the intent to commit the offence alleged to have been attempted.” This motion Devens, J., overruled. On the trial, it appeared that the horse was the property of the Porters, and was matched with four other horses for a race which was to take place on November 5, 1869; that on the night preceding the day of the race the horse was kept in a box-stall in a corner of their stable, and they placed a watchman in the stall; and that about midnight Flanagan climbed into the stall, and the watchman seized him. The watchman testified that Flanagan was going towards the head of the horse when he was seized; and there was evidence which it was contended in behalf of the Commonwealth had a tendency to show that Mulvey and McLaughlin were just outside of the stable at the time, and had diverted the attention of the hostler by an artifice, in order to enable Flanagan to enter the stable.- It also appeared that the next morning a potato was found ¡among the straw in the stall, and another potato on the sidewalk near the front door of the stable, two hundred and thirty-five feet ' from the stall; that these potatoes had been cut open and made hollow; and that the cavities in them were filled with bran, which was saturated-with croton oil, a.substance described in the evidence as “an irritant poison, which is sometimes used as a medicine, but will have a fatal effect if administered in a sufficient quantity.” A chemist who examined the potatoes and their contents testified “ that the oil had not in any way soaked into the substance of the potato, but that it had run out of the hole and to some extent smeared the outside of the potatoes.” The defendants requested the judge to rule that there was a variance between the averment and the proof, in regard to the potatoes, and that, upon the evidence, they were not “ filled and saturated” with croton oil; but the judge instructed the jury “ that if the potatoes were prepared by the removal of a part of them, and the cavities filled with bran or meal which was saturated with croton oil, or with a substance consisting of meal and eroton oil, it was sufficient for this part of the case.” The defendants also requested a ruling that the jury could not convict, unless they should be satisfied that the purpose of the defendants was to kill the horse; but the judge ruled “ that if they did the acts charged in the indictment, intending merely to cause temporary illness and injury to the horse, then they might properly be found guilty upon this indictment.” The jury found the defendants guilty; and they alleged exceptions.