74 Miss. 544
Miss.
1896
Stookdale, J.,

delivered the opinion of the court.

Lawrence Taylor was tried and convicted at the September, 1896, term of the circuit court of Quitman county, on an in*547dictment charging him (after the formal part thereof) in the following words, to wit: “That one Lawrence Taylor, late of the county aforesaid, on the twenty-first day of September, A.D. 1896, with force and arms, in the county aforesaid, and within the jurisdiction of this court, wilfully, feloniously and maliciously, did then and there mingle a large quantity, to wit, one drachm, of poison, to wit, strychnine, with a certain food, to wit, milk, with intent then and there feloniously, wilfully and of his malice aforesaid, to kill and injure one M. M. Gibson and other persons to the jurors unknown, contrary to the statute, ’ ’ etc. After conviction he was sentenced to the penitentiary during ten years. Defendant (appellant here) moved the court to arrest the judgment in this case and to discharge the prisoner. That motion was overruled by the court, and defendant appealed and assigns that action of the court below as error.

It is urged by the honorable attorney-general that § 1341, code of 1892, intervenes to prevent appellant from taking advantage of his motion to arrest the judgment, because he did not take advantage of it before verdict, as provided in § 1354, code 1892.

The contention of counsel for appellant is, that the indictment does not sufficiently charge any offense known to our laws, and therefore there was and is no indictment in the case upon which the court could sentence appellant for a felony, and that it may be assailed at any stage of the proceedings.

In the opinion of this court, delivered by the chief justice in Cook v. State, 72 Miss., 517, it is said of these statutes (§§ 1354, 1341): ‘ ‘ The statute was not intended, and could not have been intended, to rob any citizen accused of a felony of his right to have the nature and cause of the accusation preferred against him clearly and fully stated, and any abridgment of the right to be thus informed in any substantial particular would be unconstitutional.” It only remains to inquire whether this indictment clearly and fully states the nature and cause of the *548accusation preferred against the accused without abridgment in any substantial particular of his rights to be thus informed.

In Maxwell v. The State, 68 Miss., 339, this court said: “The indictment must be quashed, because of the absence of the averment of the defendant’s malice. The precise point involved was decided in Jesse v. The State, 28 Miss., 100.” This opinion was by the learned Justice Cooper. In that case —Jesse’s case — the court say: “ We are, therefore, of opinion that the statute does not dispense with the averment of malice, and that the indictment, without such averment, showed no offense in law; ’ ’ and it was quashed on that ground only.

In Sarah v. The State, 28 Miss., 267, the court said: “It follows, necessarily, from this doctrine (the doctrine laid down in the foregoing argument), in all cases of felony, in which malice is the gist of the offense, that the malice must be averred in the indictment; otherwise it will be defective, and the judgment arrested, on motion. ’ ’ And that is what appellant’s counsel contend shall be done in this case.

It is well settled in this state that an indictment charging the crime of murder, or the crime of an attempt to murder, must contain the averment that the act was committed with malice aforethought, or equivalent words, otherwise it will be fatally defective.

The honorable attorney-general maintains that from a close inspection of the statute and a cax*eful reading of the indictment, it will appear that the conviction may be sxxstained, because the indictment must be held good to charge the mingling poison with food with intent to injure, etc., the language of the statute being “to kill or injure.” The indictment, however, charges the accused with mingling the poison with intent to kill and injure, and the jury rexxdered a verdict of guilty as charged, and the court pronounced the extremest penalty allowed by law. It could xiot be claimed to be an impartial adxninistration of justice to go to trial upoxx an indictment clearly charging the highest crime and get a verdict of guilty as *549charged in the indictment, and the court pronounced the highest penalty allowed for the highest crime, and then say the lesser crime was well pleaded and the higher penalty must be suffered. We are of opinion that the indictment in this case is fatally defective, and must be quashed.

The judgment of the court heloto is reversed, and the moUon to arrest the judgment is sustained and the j udgmsnt arrested; the indictment is gnashed'and the prisoner ordered to he held for a new indictment.

The attorney-general filed a suggestion of error, which was disallowed.