COMMONWEALTH v. MINK.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1877.

[Reported 123 Massachusetts, 422.]

INDICTMENT for the murder of Charles Ricker at Lowell, in the county of Middlesex, on August 31, 1876. Trial before AMES and MORTON, JJ., who allowed a bill of exceptions in substance as follows:

It was proved that Charles Ricker came to his death by a shot from a pistol in the hand of the defendant. The defendant introduced evidence tending to show that she had been engaged to be married to Ricker; that an interview was had between them at her room, in the course of which he expressed his intention to break off the engagement and abandon her entirely; that she thereupon went to her trunk, took a pistol from it, and attempted to use it upon herself, with the intention of taking her own life; that Ricker then seized her to prevent her from accomplishing that purpose, and a struggle ensued between them; and that in the struggle the pistol was accidentally discharged, and in that way the fatal wound inflicted upon him.

The jury were instructed on this point as follows: "If you believe the defendant's story, and that she did put the pistol to her head with the intention of committing suicide, she was about to do a criminal and unlawful act, and that which she had no right to do. It is true, undoubtedly, that suicide cannot be punished by any proceeding of the courts, for the reason that the person who kills himself has placed himself beyond the reach of justice, and nothing can be done. But the law, nevertheless, recognizes suicide as a criminal act, and the attempt at suicide is also criminal. It would be the duty of any bystander who saw such an attempt about to be made, as a matter of mere humanity, to interfere and try to prevent it. And the rule is, that if a homicide is produced by the doing of an unlawful act, although the killing was the last thing that the person about to do it had in his mind, it would be an unlawful killing, and the person would incur the responsibility which attaches to the crime of manslaughter.

"Then you are to inquire, among other things, and if you reach that part of the case, Did this woman attempt to commit suicide in the presence of Ricker? and, if she did, I shall have to instruct you that he would have a right to interfere and try to prevent it by force. He would have a perfect right, and I think I might go further and say that it would be his duty, to take the pistol away from her if he possibly could, and to use force for that purpose. If then, in the course of the struggle on his part to get possession of the pistol to prevent the person from committing suicide, the pistol went off accidentally, and he lost his life in that way, it would be a case of manslaughter, and it would not be one of those accidents which would excuse the defendant from being held criminally accountable.

"Did she get into such a condition of despondency and disappointment that she was trying to commit suicide, and was about to do so? If that was her condition, if she was making that attempt, and he interfered to prevent it and got injured by an accidental discharge of the pistol, it would be manslaughter." The jury returned a verdict of guilty of manslaughter; and the defendant alleged exceptions.

GRAY, C. J. The life of every human being is under the protection of the law, and cannot be lawfully taken by himself, or by another with his consent, except by legal authority. By the common law of England, suicide was considered a crime against the laws of God and man, the lands and chattels of the criminal were forfeited to the King, his body had an ignominious burial in the highway, and he was deemed a murderer of himself and a felon, felo de se. Hales v. Petit, Plowd. 253, 261; 3 Inst. 54; 1 Hale P. C. 411-417; 2 Hale P. C. 62; 1 Hawk. c. 27; 4 Bl. Com. 95, 189, 190. "He who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head." 1 Hawk. c. 27, s. 6. One who persuades another to kill himself, and is present when he does so, is guilty of murder as a principal in the second degree; and if two mutually agree to kill themselves together, and the means employed to produce death take effect upon one only, the survivor is guilty of the murder of the one who dies. Bac. Max. reg. 15; Rex v. Dyson, Russ. & Ry. 523; Regina v. Alison, 8 Car. & P. 418. One who encourages another to commit suicide, but is not present at the act which causes the death, is an accessory before the fact, and at common law escaped punishment only because his principal could not be first tried and convicted. Russell's case, 1 Moody, 356; Regina v. Leddington, 9 Car. & P. 79. And an attempt to commit suicide is held in England to be punishable as a misdemeanor. Regina v. Doody, 6 Cox C. C. 463; Regina v. Burgess, Leigh & Cave, 258; s. c. 9 Cox C. C. 247.

Suicide has not ceased to be unlawful and criminal in this Commonwealth by the simple repeal of the Colony Act of 1660 by the St. of 1823, c. 143, which (like the corresponding St. of 4 G. IV. c. 52, enacted by the British Parliament within a year before) may well have had its origin in consideration for the feelings of innocent surviving relatives; nor by the briefer directions as to the form of coroner's inquests in the Rev. Sts. c. 140, s. 8, and the Gen. Sts. c. 175, s. 9, which in this, as in most other matters, have not repeated at length the forms of legal proceedings set forth in the statutes codified; nor by the fact that the Legislature, having in the general revisions of the statutes measured the degree of punishment for attempts to commit offences by the punish ment prescribed for each offence if actually committed, has, intentionally or inadvertently, left the attempt to commit suicide without punishment, because the completed act would not be punished in any manner. Rev. Sts. c. 133, s. 12; Gen. Sts. c. 168, s. 8; Commonwealth v. Dennis,

1 Arguments of counsel and part of the opinion are omitted.

105 Mass. 162. After all these changes in the statutes, the point decided in Bowen's case was ruled in the same way by Chief Justice Bigelow and Justices Dewey, Metcalf, and Chapman, in a case which has not been reported. Commonwealth v. Pratt, Berkshire, 1862.

Since it has been provided by statute that any crime punishable by death or imprisonment in the state prison is a felony, and no other crime shall be so considered," it may well be that suicide is not technically a felony in this Commonwealth. Gen. Sts. c. 168, s. 1; St. 1852, c. 37, s. 1. But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal. Every one has the same right and duty to interpose to save a life from being so unlawfully and criminally taken that he would have to defeat an attempt unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV. 45, pl. 10; Marler v. Ayliffe, Cro. Jac. 134; 2 Rol. Ab. 559; 1 Hawk. c. 60, s. 23. And it is not disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide, and, at the least, of manslaughter.

The only doubt that we have entertained in this case is, whether the act of the defendant, in attempting to kill herself, was not so malicious, in the legal sense, as to make the killing of another person, in the attempt to carry out her purpose, murder, and whether the instructions given to the jury were not therefore too favorable to the defendant. Exceptions overruled.

SECTION III.

The mens rea:

Negligence.

FOSTER, CROWN LAW, 262. It is not sufficient that the act upon death ensueth be lawful or innocent, it must be done in a proper manner and with due caution to prevent mischief. Parents, master, and other

which

persons having authority in foro domestico, may give reasonable correction to those under their care; and if death ensueth without their fault, it will be no more than accidental death. But if the correction exceedeth the bounds of due moderation, either in the measure of it or in the instrument made use of for that purpose, it will be either murder or manslaughter according to the circumstances of the case. If with a cudgel or other thing not likely to kill, though improper for the purpose of correction, manslaughter. If with a dangerous weapon likely to kill or maim, due regard being always had to the age and strength of the party, murder. This rule touching due caution ought to be well considered by all persons following their lawful occupations, especially such from whence danger may probably arise.

Workmen throw stones, rubbish, or other things from an house in the ordinary course of their business, by which a person underneath happeneth to be killed. If they look out and give timely warning beforehand to those below, it will be accidental death. If without such caution, it will amount to manslaughter at least. It was a lawful act, but done in an improper manner.

I need not state more cases by way of illustration under this head; these are sufficient. But I cannot pass over one reported by Kelyng (Kel. 41), because I think it an extremely hard case, and of very extensive influence. A man found a pistol in the street, which he had reason to believe was not loaded, having tried it with the rammer; he carried it home and showed it to his wife; and she standing before him he pulled up the cock, and touched the trigger. The pistol went off and killed the woman. This was ruled manslaughter.

It appeareth that the learned editor1 was not satisfied with the judgIt is one of the points he in the preface to the report recommendeth to farther consideration.

ment.

Admitting that the judgment was strictly legal, it was, to say no better of it, summum jus.

The law in these cases doth not require the utmost caution that can be used; it is sufficient that a reasonable precaution, what is usual and ordinary in the like cases, be taken. In the case just mentioned of workmen throwing rubbish from buildings, the ordinary caution of looking out and giving warning by outcry from above will excuse, though doubtless a better and more effectual warning might have been given. But this excuseth, because it is what is usually given, and hath been found by long experience, in the ordinary course of things, to answer the end. The man in the case under consideration examined the pistol in the common way; perhaps the rammer, which he had not tried before, was too short and deceived him. But having used the ordinary caution, found to have been effectual in the like cases, he ought to have been excused.

1 Chief Justice Holt.

I have been the longer upon this case, because accidents of this lamentable kind may be the lot of the wisest and the best of mankind, and most commonly fall among the nearest friends and relations; and in such a case the forfeiture of goods, rigorously exacted, would be heaping affliction upon the head of the afflicted, and galling an heart already wounded past cure. It would even aggravate the loss of a brother, a parent, a child, or wife, if such a loss under such circumstances is capable of aggravation.

I once upon the circuit tried a man for the death of his wife by the like accident. Upon a Sunday morning the man and his wife went a mile or two from home with some neighbors to take a dinner at the house of their common friend. He carried his gun with him, hoping to meet with some diversion by the way; but before he went to dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in the evening returned home with his wife and neighbors, bringing his gun with him, which was carried into the room where his wife was, she having brought it part of the way. He taking it up touched the trigger, and the gun went off and killed his wife, whom he dearly loved. It came out in evidence that, while the man was at church, a person belonging to the family privately took the gun, charged it and went after some game; but before the service at church was ended returned it loaded to the place whence he took it, and where the defendant, who was ignorant of all that had passed, found it, to all appearance as he left it. I did not inquire whether the poor man had examined the gun before he carried it home; but being of opinion upon the whole evidence, that he had reasonable grounds to believe that it was not loaded, I directed the jury, that if they were of the same opinion they should acquit him. And he was acquitted.

REGINA v. CHAMBERLAIN.

HERTFORD ASSIZES. 1867.

[Reported 10 Cox C. C. 486.]

INDICTMENT for manslaughter.

The prisoner had resided for many years in Hertford, carrying on the business of a herbalist, and he was also what was called a "quack doctor." The deceased woman had for some years a tumor on her shoulder, and in March, 1866, she consulted the prisoner, who gave her first a mercurial ointment, to which no objection was taken. After this, however, it was said he gave her a different ointment, which was arsenical, and this it was suggested had caused her death by being absorbed into the system. The case for the prosecution was that she became worse after she used this ointment, that is to say, in August, 1866; that she