11 Ill. 1 | Ill. | 1849
The plaintiff in error was indicted in the county of Johnson for the murder of Perry Herrill. The venue was changed to the county of Pulaski, where he was tried and a verdict of manslaughter returned. A motion in arrest of judgment was overruled, and the prisoner was sentenced to the penitentiary, according to the verdict. He now prosecutes a writ of error, and assigns the insufficiency of the indictment 3 to which his counsel have raised several objections.
The indictment, when stripped of its verbiage, amounts to this : the grand jurors present, that Elijah Fairlee, of his malice aforethought. Perry Herrill with the small pox to murder, did innoculate the Weavers, with virus of small pox, whereby they became infected with that disease, as he had intended, and that the virus of small pox was a deadly matter, tending to create the small pox; and the grand jury further present, that the small pox with which the Weavers were infected, as aforesaid, was an infectious and fatal disease, by means whereof Perry Herrill became infected with the disease of which he died, and so &c.
It is first objected to the indictment, that the innoculation of the Weavers is not charged to have been feloniously done. The precedents for indictments for murder charge the act as well as the intent to have been felonious ; but we are not prepared to say that where the intent with which the act was done, is charged to have been felonious, it is also necessary to aver that the act itself was unlawful or felonious. We are inclined to the opinion that an act apparently lawful in itself, when done 'with a felonious intent, becomes thereby unlawful. But waiving this objection, there is another which is fatal to this indictment. It is too uncertain to sustain the conviction. It does not show that the prisoner is guilty of the crime with which it attempts to charge him. It no where appears that Fairlee knew or expected that Herrill would contract the disease from those whom he inno culated. Fairlee is charged with intending to murder the deceased by the small pox, but it is not alleged that he accomplished his object, by innoculating the Weavers, and thus communicating the fatal disease to Herrill, or that he even intended to do so. The real charge is, that the disease which the prisoner communicated to the Weaver’s was an infectious and fatal disease, and that by reason of that disease being fatal and infectious, Herrill took it and died. From ought that appears, he may have taken it from some other person whom the prisoner never saw. Fairlee is not responsible for the disease being infectious, and it is only by reason of its being infectious that Her-rill became diseased, and so far as appears, without the agency or knowledge of the plaintiff in error. Were it shown that he had innoculated the Weavers with the design thereby of communicating the disease to the deceased, and thus producing his death, and that he had taken the disease of them, and died in consequence of it, according to such design, then it might be said that he was guilty of the act with which he is charged. As it is, there is no connection shown between the act done by the prisoner and the death of Herrill, and for that reason, at least, the indictment is fatally defective.
The judgment of the Circuit Court is reversed, and the prisoner ordered to be discharged.
Judgment reversed.