been injured in any way. The statutory offense has not been committed. * * * Affirmed. S. v. Asher, 50 Ark. 427, 8 S. W. 177, B. 229.

§ 11. "Of Commission or Omission.'

(Eng. Queen's Bench, 1705.) Neglecting Apprentice. Indictment for that a poor child, being an apprentice to the defendant pursuant to the statute, he vi et armis refused to provide for him. ET PER CUR. Since we allow the justices power to put out apprentices, we must allow an indictment for disobedience, either in case of not receiving, turning off, or not providing for such apprentice, as the law requires; and the vi et armis is surplusage. R. v. Gould, 1 Salk. 381.

(Eng. C. C. R., 1802.) Failure to Provide for an Apprentice of tender years suitable food, apparel, bedding, and sustenance, defendant being able and the apprentice unable to provide, whereby she was nearly starved and greatly injured in health, was held to be an indictable misdemeanor. In this case the indictment was defective in not stating the age and ability of the child, but the objection was rather to the evidence. There being some difference of opinion, all the judges (says the report) thought it right that the final decision should be adjourned, and that the prisoner should suffer the whole term of his imprisonment. Chambre, J., thought it no way indictable, being founded wholly on contract. R. v. Friend, Russel & R. 20, B. 190.

(Eng. Assize, 1847.) An Explosion of Gas in a mine caused the death of the under-foreman and eighteen other men in the mine, and on trial of the manager or ground bailiff for manslaughter of the under-foreman, on the ground that the explosion was due to failure to provide proper ventilation, the jury were instructed by MAULE, J. * The questions for you to consider are whether it was the duty of the prisoner to have directed an airheading to be made in this mine; and whether, by his omitting to do so, he was guilty of a want of reasonable and ordinary precaution. If you are satisfied that it was the ordinary and plain duty of the prisoner to have caused an air-heading to be made in this mine, and that a man using reasonable diligence would have had it done, and that, by the omission, the death of the deceased. occurred, you ought to find the prisoner guilty of manslaughter. It has been contended that some other persons were, on this occasion, also guilty of neglect. Still, assuming that to be so, their neglect will not excuse the prisoner; for, if a person's death be occasioned by the neglect of several, they are all guilty of manslaughter; and it is no defense for one who was negligent to say

that another was negligent also, and thus, as it were, try to divide the negligence among them. Verdict, not guilty. R. v. Haines, 2 Car. & Kir. 368, B. 170.

(Eng. Assize, 1850.) A Mine Engineer whose duty it was to raise the men from the mine in a skip, was convicted of manslaughter before Campbell, C. J., because he left the engine in charge of a boy who declared he could not manage it, and under threat from defendant, raised the skip, but was unable to stop it at the top, whereby the skip was drawn over the pulley, and deceased fell back into the mine and was instantly killed. In this case CAMPBELL, C. J., said: I am clearly of opinion that an act of omission as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter, and that there is evidence to go to the jury of such a criminal omission in this case. Guilty. R. v. Lowe, 3 Car. & Kir. 123, 4 Cox. C. C. 449, 1 B. & H. 49-n, B. 192.

(Eng. Queen's Bench, 1851.) Death from Defect in Highway. This was a rule to quash a coroner's inquisition which had been removed into this court by certiorari. The inquisition alleged that the defendants were the trustees of a public road under an act of parliament; that it was their duty to contract for the due reparation of the said road; that they feloniously did neglect and omit to contract for the repair of the same, whereby it became very miry, ruinous, deep, broken, and in great decay; and that a cart, which the deceased was driving along the road, fell into a hole in the road, and by reason thereof the deceased was thrown out, and sustained the injuries of which he afterwards died. LORD CAMPBELL, C. J. The cases cited show a personal duty, the neglect of which has directly caused death; and, no doubt, where that is the case, a conviction of manslaughter is right. But how do those apply to trustees of a highway? How can it be said that their omission to raise a rate, or to contract for the reparation of the road, directly causes the death? If so, the surveyors or the inhabitants of the parish would be equally guilty of manslaughter; for the law casts upon them the duty of keeping the roads in repair. To uphold this inquisition would be to extend the criminal law in a most alarming manner, for which there is no principle or precedent. The other judges concurred. Inquisition quashed. R. v. Pocock, 5 Cox C. C. 172, 17 Q. B. 34, B. 423, Mi. 233. Compare R. v Richards, § 17.

(Eng. C. C. R., 1857.) Open Mine Shaft. Indictment and conviction of manslaughter. It was defendant's duty in sinking a shaft. in a colliery to guard the letting down of buckets and material. The buckets were run on trucks on a tramway to the mouth of the shaft, then onto the shaft on a moveable stage, which was removed after the bucket had been lifted. On one occasion he left the stage

off the mouth of the shaft, and a truck and bucket of bricks ran off the track into the shaft, and killed deceased. LORD CAMPBELL, C. J. We are of the opinion that this conviction ought to be affirmed. It was the duty of the prisoner to place the stage on the mouth of the shaft; the death of the deceased was the direct consequence of the omission of the prisoner to perform this duty. If the prisoner, of malice aforethought and with the premeditated design of causing the death of the deceased, had omitted to place the stage on the mouth of the shaft, and the death of the deceased had thereby been caused, the prisoner would have been guilty of murder. * If the omission was not malicious and arose from negligence only, it is a case of manslaughter. There is no authority for the position that without an act of commission there can be no manslaughter; and on the contrary, the general doctrine seems well established that what constitutes murder being by design and of malice prepense, constitutes manslaughter when arising from culpable negligence. Conviction affirmed. R. v. Hughes, 7 Cox C. C. 301, Dears. & B. 248, 26 L. J. m. c. 202, 3 Jur. n s. 696, 5 W. R. 732, C. 114.

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(New Jersey Sup. Ct., 1867.) Felonious Omission of DutySwitchman. Defendant being a switchman in the city of Newark, whose duty it was to shift the switches for approaching trains, forgot his duty for a little while, and as a result a train was wrecked and one Gardner killed. For this he was tried and convicted of manslaughter. He complains of the instruction of the court that he could be convicted on proof of mere culpable omission resulting in death. DALRYMPLE, J. * The very definition of "crime" is an act omitted or committed in violation of public law. The defendant in this case omitted his duty under such circumstances as amounted to gross or culpable or criminal negligence. The court charged the jury that if the defendant, at the time of the accident, was intending to do his duty, but, in a moment of forgetfulness, omitted something which any one of reasonable care would be likely to omit, he was not guilty. The verdict of guilty finds the question of fact involved in this proposition against the defendant, and convicts him of gross negligence. He owed a personal duty, not only to his employers, but to the public. He was found to have been grossly negligent in the performance of that duty, whereby human life was sacrificed. His conviction was right, and the court below should be so advised. S. v. O'Brien, 32 N. J. L. 169, F. 212, Kn. 1, Mi. 218.

(Eng. Assize, 1869.) The Watchman at the Crossing of a private tramway and highway, left his post in violation of strict orders; and while away, one crossing the track was killed by passing trucks. For this the watchman was indicted for manslaughter; but the duty being merely private to his employer, who was not bound to

keep a watchman there, it was held that there was no such breach of duty as to make him liable for manslaughter. R. v. Smith, 11 Cox C. C. 75, B. 192, C. 116.

(Eng. Assize, 1875.) Neglect of Grandchild. Indictment for manslaughter of defendant's grandson. BRETT, J., to the jury. Here was an old woman left in a difficult position. The child was probably illegitimate. Its mother, who was the prisoner's daughter, had died, and would not probably have suckled it for some days before her death. This child was small and weakly. It might, perhaps, have lived. What, however, was the prisoner to do? It is said that she had, through her own misconduct, fallen into bad circumstances; that she was addicted to drink, and that her furniture had been seized. She was out all day collecting rags and bones. What ought she to have done with respect to the child? The prosecution say that she ought to have sent it to the parish authorities. Perhaps she ought. But she, like others, might be full of prejudice, and dislike to send it there. So her omission to send it is not sufficient; for, as I have pointed out, there must be wicked negligence on her part. Then she must go out to work. She could not find any one else, for she had no means, so she get a son of nine years old to look to the infant. She may have been very careless, but the question is, was she wickedly careless? Verdict, not guilty. R. v. Nicholls, 13 Cox C. C. 75, 13 Moak 423, B. 193.

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(Eng. Assize, 1868.) Medical Treatment "Peculiar People." Defendants were indicted for manslaughter of their child, by neglecting medical attendance. Deceased was very young, delicate, especially in the lungs, and in the last illness defendants annointed it with oil two or three times and prayed to the Lord, but called no doctor. They were of the sect, called "Peculiar People, one of whose tenits is not to call a doctor in cases of illness. Their faith is based on the General Epistle of St. James, c. 5, vv. 14-15, as follows: "Is any sick among you? let him call for the elders of the church; and let them pray over him, annointing him with oil in the name of the Lord; and the prayer of faith shall save the sick and the Lord shall raise him up; and if he have committed sins, they shall be forgiven him." WILLES, J., in summing up to the jury, said that in order to make out the offense of manslaughter in a case of this description, the proposition to be established was that the prisoners had the charge of the child in question, who would from its tender age not be able to care for itself; that they had the means of providing things reasonably fit for it, and that they were guilty of gross and culpable negligence in not resorting to those means for its benefit, by lack of which its death was occasioned. The question was whether the jury were satisfied on the evidence that the child came by its death by the gross and culpable negligence of its parents; and that was a very wide question. If a

parent had the means of supplying his child with food and were to keep it starving, even under a notion that he had some religious duty imposed upon him to starve it, and if it could be made out that that was an insane and morbid belief, everybody would come to the conclusion that there must be a conviction, for all the reasoning in the world would not justify a man in starving a child to death. But when a jury had to consider what was the precise medical treatment to be applied to a particular case, they got into a much higher latitude indeed. At different times people had come to different conclusions as to what might be done with a sick person. Two hundred years ago, if a child was afflicted with the king's evil, the popular feeling was, regardless of medical science, to have it touched with the royal hand, because that might result in effecting a cure. Again, in some Catholic countries, a custom obtained of taking a child laboring under a disease to a particular shrine, under a belief that that was the best course to adopt with a view to effect a cure. In such cases a man might be convicted of manslaughter because he lived in a place where all the community was of a contrary opinion, and in another he might be acquitted because they were all of his opinion. Verdict, not guilty. R. v. Wagstaffe, 10 Cox C. C. 530, C. 100.

Similar case R. v. Morby, § 14.

(Eng. C. C. R., 1875.) Same-Statute on Medical Attendance. Defendant was indicted for and convicted of manslaughter of his son of two years, who had been ill and wasting for eight or nine months before death, and during the whole period had no skilled treatment; but, by reason of the religious faith of defendant, of the sect of "Peculiar People," having religious scruples against calling physicians, was left in charge of a woman of their sect, prayed over, and annointed with oil. COLERIDGE, C. J. I think that this conviction should be affirmed. For my own part, but for the statute 31 & 32 Vict. c. 122, § 37, I should have much doubt about this case, and should have desired it to be further argued and considered. Perhaps it is enough to say that the opinions of Willes, J., and Pigott, B., are deserving of grave consideration. The statute 31 & 32 Vict. c. 122, § 37, however, is a strong argument in favor of the conviction. By that enactment it is made an offense punishable summarily if any parent wilfully neglects to provide (inter alia) medical aid for his child being in his custody under the age of fourteen years, whereby the health of such child shall have been or shall be likely to be seriously injured. That enactment I understand to mean that if any parent intentionally, i. e., with the knowledge that medical aid is to be obtained, and with a deliberate intention abstains from providing it, he is guilty of an offense. Under that enactment upon these facts the prisoner would clearly have been guilty of the offense created by it. If the death of a person results from the culpable omission or a breach of duty