By the Court,
Kingmas, J.
The appellant assigns various errors of the court below,which will be noticed in the [347]*347opinion. The first is overruling the motion to quash the indictment.
The indictment has throe counts substantially alike.
The first count is as follows: After tbo formal commencement, it charges “that Thomas Madden, on the twenty-first day of January, in the year of our Lord one thousand eight hundred and sixty-two, in the county of Shawnee aforesaid, unlawfully, maliciously and knowingly, did prepare, mix and mingle a largo quantity, to wit: twelve grains of a certain poison called cantharides, commonly termed Spanish flies, with a certain quantity of water, to wit: one gill, and a certain quantity of gin, with the intent that one Ann L. Smith, then and there being, should drink and swallow down the said cantharidcs,“commonly termed Spanish flies, so prepared, mixed and mingled with the water and gin aforesaid, with intent then and there and thereby, to do her, the said Ann L. Smith, an injury.
“And afterwards, to wit: On the twenty-first day of January, in the year of our Lord one thousand eight hundred and sixty-two, in the county aforesaid, the said Ann L. Smith, then and there not knowing the cantharides, commonly termed Spanish flies aforesaid, to be so prepared, mixed and mingled with the water and gin aforesaid, did then and there drink and swallow down'the said cantharides, commonly termed Spanish flies, so prepared, mixed and mingled with the water and gin aforesaid, by the said Thomas Madden, in manner aforesaid, whereby great injury was then and there done to the said Ann L. Smith, that is to say, the said Ann L. Smith did then and there and thereby become greatly sick and distempered in her body, so that for a long time the -life of the said Ann L. Smith was despaired of, contrary to the form of the statute, and against the peace and dignity of the state of Kansas.”
The second count charges the mixture to have been with whisky and water, the third count with wine and water.
[348]*348It is claimed that tlie indictment should have been quashed; because, first. It does not charge the accused with having mingled any poison with any food, drink or medicine by not averring that gin and water and wine and water were food, drink or medicine. Second. That the intent is not so stated as to apply to the mingling of the poison, but only to the drinking the same by Ann L. Smith. Third. That what is charged is rot charged to have been done feloniously, and fourth. That the charge is not stated with sufficient certainty in this, that it does not appear whether it was for the mingling the poison with intent to kill and injure, under section thirty-four, or for administering the poison, under section thirty-three, of the act regulating crimes and punishments. Pleading, under the criminal code of this state, is a system furnishing its own rules for the determination of the sufficiency of any of the pleadings recognized by it. (§ 87.)
The legislature evidently designed by the code of crimina procedure to simplify pleadings, so that the technicalities which had become so interwoven with the old system, should no longer be used to defeat the ends of justice. It sometimes so happens that means which, at one period, may have been to promote justice and protect the rights of citizens, may become at other rimes and under other circumstances, the instrumentalities of defeating justice and perilling those very rights. At a time when an accused party, however limited his capacity, and whatever his ignorance of the law and proceedings in court might have been, was not allowed to make his defense by counsel. Courts were driven to rely upon nice technicalities and fine drawn distinctions, not always founded in reason, to set aside verdicts and quash indictments to protect innocence or prevent gross wrongs and hardships. These decisions once made, became law, and had become so numerous in the time of Sir Matthew Hale that, tender of life as he was, he complained “that- this strictness is grown to be a blemish and an inconvenience in the law and the administration there[349]*349of; for that more offenders escape by the over easy law givén to exceptions than by their own innocence.” (2 Hale P. L., 193.)
The legislature has attempted to close these avenues of escape by the provisions of the code, who:iter wisely or not is not for us to consider. It is for courts only to give effect to its provisions according to the rules prescribed by it. It is to be regretted that those who have occasion to plead under the code, so often attempt to unite the simple rules of the code with the complex and cumbersome forms of the common law. Either may be good enough of itself, but from their very nature, both ought not to be attempted in one case; and it is from the vain effort to do so that most of the difficulty arises in determining upon the sufficiency of the' pleadings. The nice technicalities and fine spun and often arbitrary distinctions of the old system will not harmonize with the “plain and concise language” which the code requires in stating the facts constituting an offense.
The code lias specified, in sections eighty-nine and ninety, the requisites of an indictment, but has provided in section ninety-six a large class of defects, for the existence of which the indictment may not bo quashed or set aside.
Now, it must be obvious to any one reading the indictment in this case, that it does not state the facts constituting the offense, in plain and consice language, without repetition, as directed in the second clause of section eighty-nine. But the sixth subdivision of section ninety-six declares, that for any surplusage or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged, the indictment shall not he quashed or sot aside.
The eighty-ninth and ninetieth sections are the guides for the pleader, from- which he ought never to depart. The ninety-sixth section limits the court in the application of the requirements of those sections, and furnishes a different rule for its judgment than it had given the pleader for his guidance io. [350]*350sections eighty-nine and ninety. By the sixth subdivision of the ninety-sixth section, if sufficient matter is alleged to indicate tlio crime and person charged, the indictment may not be quashed, although it may contain surplusage and repugnant allegations.
Now, surplusage and repugnant allegations cannot be that “plain and concise language, without repetition,” directed to be used in section eighty-nine. Y et the court -must disregard such surplusage, when called upon to pass upon the indict-, mont, applying the criterian provided in sections eighty-nine,ninety and ninety-five, as explained and limited by section ninety-six, and we think it will be found that the indictment, though inartificial-ly and clumsily drawn, must be- sustained.
The whole offense is charged in the first part of-the indictment, as we have divided it. The remninder and larger part of the indictment, in which the pleader alleges the taking of the poison, must, except the formal conclusion, be regarded as surplusage. The crime charged is the mingling poison with food, drink or - medicine, with intent to injure Ann L. Smith. This is stated in the first part. The taking the poison and the consequences thereof, form no- part of the-crime, and must be held as surplusage, and if the facts therein, stated should necessarily be proved to shoiv that the mixture taken was poison, tlio court might, if required, instruct the jury that they were used for that purpose only, and formed no part of the offense. - '
We will notice the particular defects urged against the in-dictment. The court, jury and accused, must have known that gin and water is drink. That is the usual acce]Dtation of the meaning of those words, and in that sense they must betaken. (§ 93.)
The intent seems also clearly charged. The ple.'ader has unnecessarily stated that the accused mingled the poison with the intenfr that Ann L. Smith should diiñk the mixture, but has also charged that the intent was to do her an injury. ' -
[351]*351The only unlawful act charged against the accused is the mixing of the poison. The intent, which is an essential part of the crime, is charged as twofold: that his victim should drink it, and to do her an injury. It is claimed that the offense should have been charged to have been feloniously done. It may be true that this word may have been necessary at common law, but it certainly is not a part of the plain language required by the code. The reason for its use was the forfeiture which followed a judgment for the class of crimes, of which this is one. The principle having long ceased to be a |>art of our jurisprudence, it was fit that the word, necessary in the accusation, should be dropped. It can hardly be claimed, even if this be a defect, that it is one that “tends to the prejudice of the substantial rights of the defendant, upon the merits.” We cannot see what proof it would have excluded against the defendant, or what admitted for him. Regarding, then, the last part of the indictment as surplusage, we think the charge is stated with that certainty, as to the offense and person charged, which is necessary under the code.
If the last part of the indictment was intended as an attempt to bring the case within the provisions of section thirty-three, as we think is possible, then the court should guard the jury in its charge against any such possible inference.
The case of Lohman vs. The People, (1 Comstock, 382,) is very similar in the principles involved as to the sufficieney of the indictment to this case, and there the court held the indictment good.
It will be convenient to pass now to the last error urged by the appellant, as the view we take of it will render it unnecessai’y to discuss at length the other errors relied on.
This ground is the misconduct of the jury. The affidavits filed show that the bailiff, in whose charge the jury retired to consider of their verdict, was a portion of the time away from the building in which their deliberations were held, and not.in sight of it; that at least one person went into the building and [352]*352held communication with the jury while tlio bailiff was absent from and out of sight of the building, and that two of the .jurors separated from the jury unattended by the bailiff or any other officer ; that one of them was absent from the house five minutes; was seen going in the direction of Hunger’s stable, leading two horses and carrying a bucket on his arm. How long the other was separated does not appear. While still another juror was seen conversing with a person from the back room of the Chase House, and not attended by an officer. The bailiff informed one of the affiants how the jury stood while they were still deliberating, even giving the name of the juror who stood in favor of acquittal, and the bystanders generally seemed to know the state of their deliberations. It is apparent that the jurors had abundant opportunity for communication with persons other than the jurors, and that to some considerable extent, such intercourse was had.
No sworn officer was in charge of the jury portions of the time, and no explanations, by means of the bailiff or otherwise, is offered by the prosecution, to show the nature or character of the intercourse between the jurors ond others, nor to what extent it was carried.
The common law admitted no separation of the jury, and our code has adopted the same rule, by providing, in section two hundred and sixteen, “that after hearing the charge, the jury may either decide in court or retire for deliberation. They may retire under charge of an officer sworn to keep them together in somp private and convenient place, without food, except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations.”
And in the second subdivision of section two hundred and fifty-eight, providing, as one of the causes for a new trial. [353]*353“when tlic jury hare been separated without leave of the court,, after retiring to deliberate upon their verdict, or have been guiltv cf any misconduct tending to prevent a due and fair consideration of tiro case-''
Thr reason why juries should not- be tallowed to have inter-court ir; with others than thonss“'-H‘8 «a.yhce» clearly and forcibly rtafa d thus r
“The 1'aw has, with great pa ínsjymícai'orod topi-hcnrc fortric-ramen above exception, who stpwd indifferent as they stood unsworn, and with yet more jtíkío'us.care, provided that they should hear no evidence but what was relevant to the precise* matter in «©®troversy, and 'fit'; to bring their understanding: and consciences to a proper conclusión thereon'. If,-after all*, these precautionary moans, it permitted the triors to mix with those around them,, to catch tho.-pavtialities- and prejudices of the friends and enemies to- thoijiarties, and to open their carato all that might bo said in relation to the matter under trial,, the precautions wore nugatory', and there was bo* security for an impartial verdict,founded upon the evidence.- This part of the rule, as it admitted oí'.ho dispensation, so is permitted no exception unless ■ such as'‘was produced by an imperative’ necessity, and eveu then thisj. was not allowed without groat' hesitation, and against the opinion of i-nanr sages ef the law.”1 (I Dev. if Bat., 500.)
There has been some diversity’' of ruling' as- to wliat would: be such misconduct of the jury as would vitiate the verdict in; criminal eases. .' 1
In Massachusetts, the supremo cox-tri say'; “The result of the authorities is that when thorn is an irregularity which may affect the impartiality of the -proceedings, as where meat ancf drinh and other refreshments'have been furnished by a party,, or when the jury have been exposed t® such iaftirencc as where they have improperly separated themselves,, of have had communication not authorized, then, inasmuch, as there can be no-certainty that the verdict has not been improperly influenced,. [354]*354the proper and appropriate mode of correction and relief is by undoing what has been improperly and may have been corruptly done.” (Com. vs. Roby, 2 Pick., 496.)
In New York, after having greatly relaxed the rules, the court of appeals, in the case of Eastwood vs. The People, (3 Park. Cr. L., 25,) after a careful examination of the decisions in that and other states, and an able review of them, come back to the rule just quoted from Massachusetts, adding, however, a qualification that does not disturb the pinciple on which the Massachusetts case rests, that such verdict will, by such irregularity, be vitiated, unless it is affirmatively shown, on the part of the prosecution, that no injury to the prisoner could have occurred in consequence of the separation.
The great weight of authorities is in conformity with this principle. ■
In new states it is not always practicable to furnish the necessary conveniences so that the rigid rule of the common law can be enforced, but there can be no difficulty in a jury keeping together, and in keeping themselves free from any intercourse with others, or of a bailiff so taking charge of them, as that others shall not have an opportunity of conversing with them.
It is of the utmost importance that triers, who pass upon the lives and liberties of men, should so act that no possible suspicion can attach to them of having been in a position where improper influences, prejudicial to the accused, or in his. favor, may have operated, on their minds. Where the opportunity for such influences is afforded, if the verdict is against the accused, he is entitled to the presumption that the irregularity has been prejudicial to bim, and it is incumbent on the state to show that no such injury could have occurred by reason of the irregularity. ■
The court erred in net setting aside the verdict and granting a new trial for irregularity on the part of the jury.
There are several other errors complained of, but as most of them will not arise again, they need not be noticed.
[355]*355The evidence is not given to us in the bill of exceptions. It would seem to us that the witness, Smith, ought to ’have answered the question proposed. It could not have disgraced her, as it seems to us, to have answered, let the answer be what it might; but we do not decide on this, as enough is not shown by the record to show whether it was a proper question for cross-examination. .
The testimony of Gale wate properly excluded. It was hearsay, and could not be admitted as evidence. It was no fact, showing either guilt or innocence, that Ann L. Smith held 'certain opinions. Much less could another testify that he had heard her express such opinions, unless it was done to impeach her testimony, and the record shows no ground laid for such examination.
The instructions seem to us to be the law applicable to such a, case, as might have been made out under the indictment with one exception, which is this, that the jury are instructed that administering the poison is part of the crime. The crime is mingling with intent to kill or injure, and the administering forms no part of the offense.
This ought to be corrected in the new trial. We are not disposed now to comment on the practice of the court giving its reasons for giving and refusing instructions in the presence of the jury, as what was said jh the case could not have prejudiced the jury, as the substance of what was. said had already been given to the jury as Iqw, and properly, as we think.
The judgment is reversed, and a new trial ordered upon the motion of the accused. And it is' further ordered that the prisoner, Thomas Madden, be taken from the penitentiary, where he is now confined, and returned and delivered over to the jailor of Shawnee county, to be by him safely kept to abide the order of the district court of Shawnee county,
Cobb, C. J.
I am compelled to differ with a majority of filie court upon a single question in this cause, and believing [356]*356that question to involve a principle of importance, will briefly consider it Tito learned judge who tried the cause instructed the jury “that if they believe, from the evidence, that defendant mixed, mingled and ministered canth'arides to Ann L, Smith, with the intent to have carnal knowledge of her, and that as a result of such administering of cantharides, she, Ann L. Smith, received personal injury, which is a fact for the jury to determine from the evidence, then the jury would be justified iu finding the defendant guilty — the law presuming that ho intended the natural and probable consequences of Ids own act, uule»s lie should rebut such presumption by evidence sufficient to satisfy the jury.”
This iiir.truction, as I understand it, leaves the jury to find whether or not the defendant performed the acts charged in the indictment, and the administering of the poison, and upon an affirmative finding of those facts, decides the. question of guilty intention to injure, against the accused, as a matter of law, giving as a- reason, that he intended the natural consequences of his own act.
Both the ruling of the court and the reason given for it, are, I think, erroneous.
“ To the facts, the jurors are to respond; to the law, the judgesand intention is as clearly a fact as are the acts done in pursuance of i.t.
The presumption that the accused intended the natural and probable consequences of his otyn acts, in my opinion, is not one of law, to be applied by the court, but of fact, to be weighed by the jury, with the other evidence in .the case, and is strong or weak, according to the strength of the jirobability on which it is founded..
Starkey, speaking upon the presumption of intention, (2 fttark. Uv., ¶* 739,) says: “This inference is usually one of fact, to be made by the jury by virtue of their knowledge and experience from all the circumstances of the case, hut in this, as in some other instances, where the inference necessarily [357]*357arises from the facts, -it is a conclusion of law, which the courts can deduce from the facts, without the intervention of a jury.
“It is a universal principle that a man shall be taken to intend that which he does or that which is the immediate and necessary consequence of his act. .
“ Thus in cases of homicide, the courts frequently infer malice from the facts, without an express finding of malice by the jury.”
And I think that wherever; #hc doctrine, that one is presumed to intend the natural arid probable consequences of his acts, is stated in the books, by,.-tracing, fee authorities it will be found that the doctrine heldfwas not ¡that the courts should, but that the jury might, presume flip intention from the act; and that when the courts were allowoq to infer such intention, the consequence of the act, when done, was not probable but certain. . ■), ' ■ .-
This was clearly not a case of that kind. The only act the defendant was charged with in-the indictment, was mingling the- poison, and, most clearly, rio legal inference could bo drawn from, that fact alone. But the. administering of the poison, if proved, was strong circumstantial evidence to prove criminal intention, and I think the whole evidence should have been submitted to the jury, with instructions to find the defendant guilty, if the evidence satisfied their judgments of the criminal intention as well as the other- facts in the case, and not otherwise.
As to all other questions in- the cause, I fully concur with my brethren. ' ’ f :