Bittle v. State

Eowi.er, J.,

delivered the opinion of the Court.

This is a writ of error to the Circuit Court for Carroll County. The plaintiff in error was indicted in the Court below. He demurred to the indictment, which contains three counts. The demurrer was sustained as to the first and third counts, and overruled as to the second, on which he was tried before the Court without the aid *528 of a jury, convicted and sentenced to th'e penitentiary for four years.

The errors alleged are, First, because it was decided that the second count sufficiently alleged a criminal offence against the laws of this State; and, Second, because it was held that said count sufficiently alleges an attempt to murder by poison.

It seems to us too clear for controversy that the Court below was entirely correct. The count in question is as follows, and charges that the plaintiff in error “did attempt to commit an offence prohibited by law, to wit, did attempt to poison one Ida S. Angel, then and there being, 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 furnish, supply, and deliver, knowingly and wilfully, to the said Ida S. Angel, one pill, containing a large quanity of a certain deadly poison called arsenite of copper, commonly known as Paris green, to wit, three and fifty-four one-hundredth grains of said arsenite of copper, and did then and there unlawfully and wickedly advise, solicit, and incite her, the said Ida S. Angel, to take and swallow the said pill containing the said quantity of said deadly poison, with intent thereby then, feloniously, wilfully, and of his malice aforethought, her, the said Ida S. Angel, to kill and murder, contrary to the form of the Act of'Assembly. ”

Since the case of Lamb vs. The State, 67 Md., 524 , it is settled law here that the bare act of solicitation to commit a misdemeanor is not in itself an indictable offence. But that question is not here involved. The crime with which the plaintiff in error is here charged with having attempted to commit is a felony, and the solicitation is only one of the acts constituting the attempt. The other act is thfe actual delivery of the deadly poison with the intent thereby wilfully to murder. If this be not attempt to murder by poison it would be *529 difficult to make one without actually perpetrating the crime itself. We think the overt act, as well as the attempt to commit a felony, is sufficiently alleged in the second count.

(Decided 23rd January, 1894.)

Ruling affirmed.