Assault, and assault and battery with felonious intent. and battery with intent to commit a felony, the intent and present ability must necessarily be conjoined. Ibid. Evidence. Where the evidence showed that the defendant shot at the prosecuting witness twice, at a distance of not exceeding thirty steps, with a shot-gun loaded with powder and shot; that one of the discharges was fired at the face and neck of the prosecuting witness, many of the shot taking effect and inflicting on him great bodily harm, one of his eyes being destroyed, and the other seriously wounded. Held, that, assuming that the act was done with the intent to murder, and that the defendant only failed in his purpose because the shot were incapable of producing death, owing to the distance between the parties and the manner in which the gun was loaded, then the evidence justified a conviction of the felonious intent. Ibid. Instructions to jury.-On the trial of such an indictment, the court instructed the jury that, if they should find, from the evidence, to the exclusion of a reasonable doubt, that the defendant intended to kill the prosecuting witness at the time, yet they would be warranted, under the law, in acquitting the defendant of the intent to kill, if it was manifest and clear from the evidence, that, because of the manner in which the gun was loaded, or because of the distance between the defendant and the prosecuting witness "it was physically impossible that death could possibly have resulted from the use of the means employed." Held, that the charge was too favorable to the defendant, and he had no right to complain of it. Ibid. Evidence-Larceny. On the trial it appeared that the defendant had put his hand or fingers on the pocket of A, with the intention of stealing his money, but was detected and arrested in the attempt. Held, that a conviction for an assault and battery with intent to commit larceny was not erroneous. 16 Ind. 232. Definition-Instructions to jury.—In charging the jury, in a prosecution for assault and battery with intent to commit murder, it was error to define the words "purposely and maliciously," used in the indictment, as being equivalent to the words "knowingly and willfully," and to charge the jury that if the assault and battery was "knowingly and willfully" done with intent to kill, this was sufficient to sustain the higher charge included in the indictment. 46 Ind. 582. Instructions to jury-Firing into crowd-Intent.-Indictment for assault and battery with intent to murder. The following charge 里 Assault, and assault and battery with felonious intent. was given to the jury: "If the defendant fired into the crowd in If, from the battery committed by the defendant, A. had died, the intent to murder him would have been inferred from the act of shooting into the crowd, and, though death did not, in this case, result from the shooting, the act is as good evidence of the intent to murder as if death had ensued. Ibid. A person indicted for an assault and battery with intent to murder, may be found guilty of a simple assault and battery. 7 Blackf. 233; 50 Ind. 267. Assault-Present ability.-If, to the intent to commit a felony, the present ability to commit be not joined, the offense is not complete. Thus, where A. fired a gun at B., at the distance of forty feet, with intent to murder him-A. believing that the gun was loaded with powder and ball, though, in fact, it was loaded with powder and a light, common wad. Held, that there was no assault with intent to commit murder. 8 Ind. 524. (This case is disapproved in 32 Ind. 220.) See, also, Whart. Crim. Law, § 1282, 7th ed. Evidence-Specific acts of violence upon others.-Upon the trial of an indictment for an assault and battery with intent to murder another, evidence of specific acts of violence committed by the latter, upon persons toward whom he had ill will, is not admissible. 56 Ind. 179. Verdict contrary to law.-Where the defendant is convicted of the entire charge of assault and battery, with intent, etc., and the indictment is good as to the assault and battery, but defective as to the intent, the verdict is contrary to law. 50 Ind. 284. Exception-Assignment of error.-Where a defendant is found guilty under such an indictment, if no motion is made in arrest of judgment, and it is not assigned for error that the indictment is not sufficient to sustain the judgment, or proper exception to the Administering poison with intent to kill. judgment, the objection to the indictment is not presented for review. 50 lnd. 267. SEC. 10. ADMINISTERING POISON WITH INTENT TO KILL. SEC. 10. Every person who shall administer, or procure to be administered, any poison to any other human being, with intent to kill the person to whom the same shall be administered, if death do not ensue, upon conviction thereof, shall be punished by imprisonment in the state prison not less than three years. 2 R. S. 429. CHARGES. day of in the year, at said That A. B., on the county, did, unlawfully and feloniously administer and procure to be administered to one C. D., a large quantity of a certain poison called white arsenic, to-wit, two drachms of said white arsenic, with the intent then and there and thereby unlawfully and feloniously to kill the said C. D. Bicknell's Crim. Pr. 298. 2. Another form for same. day of, in the year That A. B., on the at said county, unlawfully, knowingly, purposely, feloniously, and maliciously, did administer to one C. D., a large quantity of a certain deadly poison, called white arsenic, to-wit, two drachms of the said white arsenic, with the intent then and there and thereby, unlawfully, purposely, feloniously, and maliciously, to kill and murder the said C. D., but from which poisoning death did not ensue. 3. Mixing poison with medicine with intent to injure, etc. SEC. 11. Every person who shall mingle poison with any food, drink, or medicine, with intent to injure any human being, or who shall poison any spring, well, or reservoir of water, with such intent, shall, upon conviction thereof, be punished by imprisonment in the state prison not less than two or more than fourteen years. 2 R. S. 429. Administering poison with intent to kill. CHARGE. day of, in the year That A. B., on the at said -county, unlawfully purposely, knowingly, and maliciously, did mix and mingle a large quantity of a certain deadly poison called white arsenic, to wit, two drachms of the said white arsenic, with a certain quantity of medicine, called wine, to-wit, one-half pint of said wine, with intent, then and there and thereby, feloniously, purposely, and maliciously, to greatly injure and hurt the said C. D., to wit, then and there and thereby to cause him, the said C. D., to become greatly sick and distempered in his body, which said wine was then and there about to be administered to the said C. D., and he, the said A. B., then and there well knowing that the said wine was about to be administered to the said C. D., and then and there well knowing that the said white arsenic was a deadly poison. 3. Mixing poison with water in well. (Sec. 11.) That A. B., on the day of in the year at said county, feloniously, purposely, and maliciously, did poison a certain well of water there situate, by then and there feloniously, purposely, and maliciously mixing and mingling a large quantity of a certain deadly poison, called white arsenic, to-wit, one pound of said white arsenic, with and into a certain quantity of water then and there contained in said well, to-wit, the quantity of one hundred gallons of said water, with intent then and there and thereby, feloniously, purposely, and maliciously, to greatly injure and hurt the said C. D., to-wit, then and there and thereby to cause him, the said C. D., to become greatly sick and distempered in his body, which said water for a long time then and there had been and was then and there about to be used by the said C. D. and his family, for cooking and drinking, and he, the said A. B., then and there well knowing that the said water then and there had been and was then and there about to be used by the said C. D. and his family, for drinking and cooking, and then and there also well knowing that the said white arsenic was a deadly poison. The statute not using the word "murder," but the word "kill," that word, under our statute, is sufficient. Bicknell's Crim. Pr. 299. The indictment must allege that the thing administered was poison. Ibid. Kidnaping. An indictment charging the defendant of murder, by administering poison, need not state the particular poison administered; and if it do so state, the proof need not correspond. 2 Ind. 617. For an indictment held sufficient as charging a murder by administering poison, see 54 Ind. 128. Where the statute uses the alternative expression "administer or cause to be administered," the pleader may allege that the defendant "administered and caused to be administered," etc., without rendering the count bad for duplicity. Bish. Crim. Proced. § 633. SEC. 11. KIDNAPING. SEC. 13. Every person who shall forcibly steal and take, or forcibly and unlawfully arrest any person, and convey such person to parts without the State of Indiana, or aid or abet therein, or who shall forcibly and unlawfully take or arrest, or aid or abet in forcibly taking or arresting any person, with intent to take such person without the state, without having first established a claim upon the services of such person, according to the laws of this state, or of the United States, shall be deemed guilty of kidnaping, and, upon conviction thereof, shall be fined not less than one hundred nor more than five thousand dollars, and be imprisoned in the state prison not less than two nor more than fourteen years. 2 R. S. 429, 430. CHARGE. at said That A. B., on the day of in the year county, did forcibly and feloniously steal [or, did forcibly and. feloniously arrest] C. D., and did forcibly and feloniously convey the said C. D. to parts without the State of Indiana, to-wit, to Louisville, in the State of Kentucky, he, the said A. B., not having first established a claim to the services of the said C. D., according to the laws of the State of Indiana. Bicknell's Crim. Pr. 302. Where the party was not actually taken out of the state, the charging part of the indictment may be as follows: "did forcibly, unlawfully, and feloniously take and arrest C. D., with intent, then and there, forcibly, unlawfully, and feloniously to take the said C. |