Blodgett, J.
These were two indictments returned by the grand jury at the September session, 1910, of our Superior-Court for the county of Washington. Each indictment was. in two counts.
The first count of the De Fonti indictment charges that the defendant on the 24th of April, 1910, at Charlestown, in Washington County, “Did feloniously, unlawfully and wilfully sell and suffer to be sold and deliver and suffer to be delivered ale, wine, rum and other strong malt and intoxicating liquor, mixed liquor, a part of which was ale, wine, rum and other strong malt and intoxicating liquor, in which wood alcohol, a deadly poison had been mixed and mingled, to one Timothy Riley for the use of and to be drunk by one Michael Riley, which the said Timothy Riley then and there delivered to the said Michael Riley. And the said Michael Riley then and there not knowing that said poison was mixed and mingled with said intoxicating liquor, did take, drink and. swallow down a large quantity of said poison, so mixed and mingled with said intoxicating liquor as aforesaid, whereby the said Michael Riley of the poison aforesaid and by the operation thereof, and in consequence of said unlawful sale by the defendant of said intoxicating liquor in which said poison was then and there mixed and mingled, then and there-became mortally sick and distempered in his body, of which said mortal sickness and distemper the said Michael Riley at Charlestown aforesaid from the said twenty-fourth day of April in the year aforesaid until the twenty-fifth day of
April in the year aforesaid did languish and languishing did live. On which said twenty-fifth day of April in the year aforesaid the said Michael Riley at Charlestown aforesaid of the said mortal sickness and distemper died, and so the jurors aforesaid upon their oaths aforesaid do say that the said John De Fonti, him the said Michael Riley in manner and form aforesaid feloniously, wilfully and unlawfully did kill and slay. Against the form of the statute in such case made and provided, and against the peace and dignity of the State.
’ ’
The second count is as follows: — “ . . . Did felon-iously, unlawfully and negligently sell and suffer to be sold and deliver and suffer to be delivered a certain quantity of wood alcohol, a deadly poison, which was then and there mixed and mingled with other liquids and liquors, a further description of which is to the grand jurors unknown, to one Timothy Riley, instead of whiskey, which the said Timothy Riley then and there requested the said John De Fonti to deliver and cause to be delivered to him for the use of and to be drunk by one Michael Riley, which the said Timothy Riley then and there delivered to the said Michael Riley. And the said Michael Riley then and there, not knowing of the said negligence of the said John De Fonti, and believing that said mixed liquid containing said poison so delivered to him by the said Timothy Riley as aforesaid was then and there whiskey, did then and there drink and swallow down into his body a large quantity of said mixed liquid containing said poison, by means whereof and of said negligence of said John De Fonti, the said Michael Riley then and there of the poison aforesaid and by the operation thereof, on said twenty-fourth day of April in the year aforesaid, became mortally sick and distempered in his body, of which said mortal sickness and distemper the said Michael Riley from the said twenty-fourth day of April in the year aforesaid to the twenty-fifth day of April in the same year, at Charles-town aforesaid, did languish and languishing did live. On which said twenty-fifth day of April in the year aforesaid at
Charlestown aforesaid, he, the said Michael Riley did die. And so the jurors aforesaid, upon their oaths aforesaid, do say that him, the said Michael Riley, the said John De Fonti in' manner and means aforesaid then and there feloniously, unlawfully and negligently did kill and slay. Against the form of the statute in such case made and provided, and against the peace and dignity of the state.”
The counts in the Cisco indictment were identical, except that in each count the sale and delivery was alleged to have been made directly to deceased, rather than to an agent for deceased’s use.
Upon defendants’ demurrer to the indictments questions of law were certified to this court as follows, under Section 5 of Chapter 298 of the General Laws:—
De Fonpi Case.
“1. In an indictment charging the defendant with manslaughter because of his unlawful sale of an intoxicating liquor, in which wood alcohol, a poison, had been mixed and mingled, to an agent of deceased, for deceased’s use, and which was drunk by deceased in ignorance of the presence of such poison, is it necessary to allege that defendant knew that such intoxicating liquor was poisoned?
“2.
Is it necessary to allege facts from which such knowledge- could be inferred?
“3. In an indictment charging the defendant with manslaughter, because of his alleged negligence in selling and delivering a quantity of wood alcohol, a deadly poison, mixed with some other liquor, to an agent of deceased, to be drunk by deceased, instead of whiskey, which such agent requested defendant to sell and deliver to him, and which deceased drank, believing it to be whiskey, is it necessary to set out the facts constituting such alleged negligence?
“4.
Is it necessary to allege facts from which it could be inferred that defendant knew or should have known that such liquid contained wood alcohol?”
Cisco Case.
Questions two and four certified in this case are identical with two and four in the De Fonti case. Questions one and three are as follows:—
• “1. In an indictment charging the defendants with manslaughter because of their unlawful sale of an intoxicating liquor, in which wood alcohol, a poison, had been mixed and mingled, to deceased, which was drunk by deceased in ignorance of the presence of such poison, is it necessary to allege that defendants knew that such intoxicating liquor was poisoned?”
“3. In an indictment charging the defendants with manslaughter because of their alleged negligence in selling and delivering a quantity of wood alcohol, a deadly poison, mixed with some other liquor, to deceased, to be drunk by deceased, instead of whiskey which deceased requested defendants to sell and deliver to him, and which deceased drank, believing it to be whiskey, is it necessary to set out the facts constituting the alleged negligence?”
(1)
We are of the opinion that the first count in each of these indictments is defective in that it does not charge the accused with knowledge of the poisoning of the liquor, although his sale of the whiskey was contrary to law. More than two hundred and fifty years ago and at the time of the first beginning of this colony it was said by Sir Matthew Hale, Lord Chief Justice of England, in his pleas of the Crown (pp.
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Blodgett, J.
These were two indictments returned by the grand jury at the September session, 1910, of our Superior-Court for the county of Washington. Each indictment was. in two counts.
The first count of the De Fonti indictment charges that the defendant on the 24th of April, 1910, at Charlestown, in Washington County, “Did feloniously, unlawfully and wilfully sell and suffer to be sold and deliver and suffer to be delivered ale, wine, rum and other strong malt and intoxicating liquor, mixed liquor, a part of which was ale, wine, rum and other strong malt and intoxicating liquor, in which wood alcohol, a deadly poison had been mixed and mingled, to one Timothy Riley for the use of and to be drunk by one Michael Riley, which the said Timothy Riley then and there delivered to the said Michael Riley. And the said Michael Riley then and there not knowing that said poison was mixed and mingled with said intoxicating liquor, did take, drink and. swallow down a large quantity of said poison, so mixed and mingled with said intoxicating liquor as aforesaid, whereby the said Michael Riley of the poison aforesaid and by the operation thereof, and in consequence of said unlawful sale by the defendant of said intoxicating liquor in which said poison was then and there mixed and mingled, then and there-became mortally sick and distempered in his body, of which said mortal sickness and distemper the said Michael Riley at Charlestown aforesaid from the said twenty-fourth day of April in the year aforesaid until the twenty-fifth day of
April in the year aforesaid did languish and languishing did live. On which said twenty-fifth day of April in the year aforesaid the said Michael Riley at Charlestown aforesaid of the said mortal sickness and distemper died, and so the jurors aforesaid upon their oaths aforesaid do say that the said John De Fonti, him the said Michael Riley in manner and form aforesaid feloniously, wilfully and unlawfully did kill and slay. Against the form of the statute in such case made and provided, and against the peace and dignity of the State.
’ ’
The second count is as follows: — “ . . . Did felon-iously, unlawfully and negligently sell and suffer to be sold and deliver and suffer to be delivered a certain quantity of wood alcohol, a deadly poison, which was then and there mixed and mingled with other liquids and liquors, a further description of which is to the grand jurors unknown, to one Timothy Riley, instead of whiskey, which the said Timothy Riley then and there requested the said John De Fonti to deliver and cause to be delivered to him for the use of and to be drunk by one Michael Riley, which the said Timothy Riley then and there delivered to the said Michael Riley. And the said Michael Riley then and there, not knowing of the said negligence of the said John De Fonti, and believing that said mixed liquid containing said poison so delivered to him by the said Timothy Riley as aforesaid was then and there whiskey, did then and there drink and swallow down into his body a large quantity of said mixed liquid containing said poison, by means whereof and of said negligence of said John De Fonti, the said Michael Riley then and there of the poison aforesaid and by the operation thereof, on said twenty-fourth day of April in the year aforesaid, became mortally sick and distempered in his body, of which said mortal sickness and distemper the said Michael Riley from the said twenty-fourth day of April in the year aforesaid to the twenty-fifth day of April in the same year, at Charles-town aforesaid, did languish and languishing did live. On which said twenty-fifth day of April in the year aforesaid at
Charlestown aforesaid, he, the said Michael Riley did die. And so the jurors aforesaid, upon their oaths aforesaid, do say that him, the said Michael Riley, the said John De Fonti in' manner and means aforesaid then and there feloniously, unlawfully and negligently did kill and slay. Against the form of the statute in such case made and provided, and against the peace and dignity of the state.”
The counts in the Cisco indictment were identical, except that in each count the sale and delivery was alleged to have been made directly to deceased, rather than to an agent for deceased’s use.
Upon defendants’ demurrer to the indictments questions of law were certified to this court as follows, under Section 5 of Chapter 298 of the General Laws:—
De Fonpi Case.
“1. In an indictment charging the defendant with manslaughter because of his unlawful sale of an intoxicating liquor, in which wood alcohol, a poison, had been mixed and mingled, to an agent of deceased, for deceased’s use, and which was drunk by deceased in ignorance of the presence of such poison, is it necessary to allege that defendant knew that such intoxicating liquor was poisoned?
“2.
Is it necessary to allege facts from which such knowledge- could be inferred?
“3. In an indictment charging the defendant with manslaughter, because of his alleged negligence in selling and delivering a quantity of wood alcohol, a deadly poison, mixed with some other liquor, to an agent of deceased, to be drunk by deceased, instead of whiskey, which such agent requested defendant to sell and deliver to him, and which deceased drank, believing it to be whiskey, is it necessary to set out the facts constituting such alleged negligence?
“4.
Is it necessary to allege facts from which it could be inferred that defendant knew or should have known that such liquid contained wood alcohol?”
Cisco Case.
Questions two and four certified in this case are identical with two and four in the De Fonti case. Questions one and three are as follows:—
• “1. In an indictment charging the defendants with manslaughter because of their unlawful sale of an intoxicating liquor, in which wood alcohol, a poison, had been mixed and mingled, to deceased, which was drunk by deceased in ignorance of the presence of such poison, is it necessary to allege that defendants knew that such intoxicating liquor was poisoned?”
“3. In an indictment charging the defendants with manslaughter because of their alleged negligence in selling and delivering a quantity of wood alcohol, a deadly poison, mixed with some other liquor, to deceased, to be drunk by deceased, instead of whiskey which deceased requested defendants to sell and deliver to him, and which deceased drank, believing it to be whiskey, is it necessary to set out the facts constituting the alleged negligence?”
(1)
We are of the opinion that the first count in each of these indictments is defective in that it does not charge the accused with knowledge of the poisoning of the liquor, although his sale of the whiskey was contrary to law. More than two hundred and fifty years ago and at the time of the first beginning of this colony it was said by Sir Matthew Hale, Lord Chief Justice of England, in his pleas of the Crown (pp. 429, 430, 475): “ If a physician gives a person a potion without any intent of doing him any bodily hurt, but with an intent to cure or prevent a disease, and contrary to the expectation of the physician it kills him, this is no homicide, and the like of a chirurgeon, 3 E. 3 Coron. 163. And I hold their opinion to be erroneous, that think, if he be no licensed chirurgeon or physician, that occasioneth this mischance, that then it is felony, for physic and salves were before licensed physicians and chirurgeons; and therefore if they be not licensed according to the statute of 3 H. 8 cap. 11, or 14 H.
8 cap. 5, they are subject to the penalties in the statutes, but God forbid that any mischance of this kind should make any person not licensed guilty of murder or manslaughter.
“These opinions therefore may serve to caution ignorant people not to be too busy in this kind with tampering with physic, but are no safe rule for a judge or jury to go by.”
“This doctrine therefore, that if any die under the hand of an unlicensed physician, it is felony, is apochryphal, and fitted, I fear, to gratify and flatter doctors and licentiates in physic, though it may, as I said, have its use to make people cautious and wary, how they take upon them too much in this dangerous employment.” . . .
“By the statute of 33 H. 8 cap. 6. £No person not having lands, &e. of the yearly value of one hundred pounds
per annum,
may keep or shoot in a gun upon the pain of forfeiture of ten pounds.’ Suppose therefore such a person not qualified shoots with a gun at a bird, or at crows, and by mischance it kills a by-stander by the breaking of the gun, or some other accident, that in another case would have amounted only to chance-medley, this will be no more than chance-medley in him, for though the statute prohibits him to keep or use a gun, yet the same was but
malum pro-hibitum,
and that only under a penalty, and will not inhance the effect beyond its nature.”
And the same doctrine has been applied to the present time. Thus in
Moynihan
v.
The State,
70 Ind. 126, 130, the court observes: “By the innocent administration of poison no penal law is violated, no moral turpitude is shown. To hang a man for such a mistake, or incarcerate him for life, is a barbarity not inflicted by the law of any civilized and enlightened people.”
The first and second questions certified to us in each case are therefore answered in the affirmative.
We are of the opinion that the second count in each indictment is sufficient. The accused is here charged with negligently substituting wood alcohol, a deadly poison, for
■whiskey which was ordered and paid for. Either the .accused knew that he was delivering wood alcohol, a deadly poison, in place of whiskey, or he negligently represented the liquid so delivered to be whiskey without having any knowledge whether it was or was not the whiskey which had been ■called for. So acting in either event he must be held liable for the consequences of his act if it be proved at the trial. 'The third and fourth questions in each case are accordingly .answered in the negative.
William B. Greenough, Attorney General, Harry P. Cross, .Assistant Attorney General,
for State.
John W. Sweeney,
for defendant.