The indictment charged first that the prisoner killed his wife by beating; secondly, by throwing her out of the window; and, thirdly and fourthly, that he beat her and threatened to throw her out of the window and to murder her; and that by such threats she was so terrified that, through fear of his putting his threats into execution, she threw herself out of the window, and of the beating and the bruises received by the fall died. There was strong evidence that the death of the wife was occasioned by the blows she received before her fall: but Heath, Gibbs, and Bayley, JJ., were of opinion that if her death was occasioned partly by the blows and partly by the fall, yet if she was constrained by her husband's threats of further violence, and from a well-grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall, as much as if he had thrown her out of the window himself. The prisoner however was acquitted; the jury being of opinion that the deceased threw herself out of the window from her own intemperance, and not under the influence of the threats. (f)

Upon a trial for manslaughter it appeared that the prisoner and the deceased had some dispute about paying for some spirits, and the first witness swore that the deceased's boat being alongside the schooner in which the prisoner was, the prisoner pushed it with his foot, and the deceased stretched out over the bow of the boat, to lay hold of a barge, to prevent the boat drifting away, and losing his balance fell overboard, and was drowned. J. A. Park, J., after consulting Patteson, J., said, that they were of opinion. that, if the case had rested on the evidence of the first witness, it would not have amounted to a case of manslaughter. (h) So where upon an indictment for murder by drowning, by the deceased slipping into the water in endeavoring to escape from an assault made with intent to murder or rob, it appeared that the body was found in a river, and it bore marks of violence, but not sufficient to occasion death, which appeared to have been caused by drowning, and there were marks of a struggle on the bank of the river; Erskine, J., told the jury that a man might throw himself into a river under such circumstances as rendered it not a voluntary act, by reason of force applied either to the body or the mind; and it then became the guilty act of him who compelled the deceased to

therefore the defect was cured by the verdict. It is a novel doctrine in criminal cases that a defective indictment is cured by verdict. Lord Hale says, 'None of the statutes of jeofails extend to indictments, and therefore a defective indictment is not aided by verdict.' 2 Hale, P. C. 193; and no authority is known for such a doctrine in other cases. The indictment was right; for it alleged the acts of the prisoner which caused the death, and that is all that it ever was necessary to do in such an indictment. C. S. G.

(ƒ) R. v. Evans, O. B. Sept. 1812. MS. Bayley, J. Where an indictment for manslaughter alleged that the deceased was riding on horseback, and that the prisoner

assaulted and struck him with a stick, and that the deceased, from a well-grounded apprehension of a further attack, which would have endangered his life, spurred his horse, whereby it became frightened, and threw the deceased, &c., and it was proved that the prisoner struck the deceased with a small stick, and that he rode away, the prisoner riding after him, and on the deceased spurring his horse, it winced and threw him; it was held, on the authority of the above case, that the case was proved. R. v. Hickman, 5 C. & P. 151, J. A. Park, J.

(h) R. v. Waters, 6 C. & P. 328, J. A. Park and Patteson, JJ. It afterwards appeared that the prisoner was not the man who pushed the boat away.

take the step. But the apprehension must be of immediate violence, and well grounded from the circumstances by which the deceased was surrounded; not that the jury must be satisfied that there was no other way of escape, but that it was such a step as a reasonable man might take. (i)

Where the prisoner, upon his apprentice returning to him from Bridewell, whither he had been sent for his misbehaviour, in a lousy and distempered condition, did not take that care of him which his situation required, and which he might have done; not having suffered him to lie in a bed on account of the vermin, but having made him lie on the boards for some time without covering, and without common medical care; and the death of the apprentice, in the opinion of the medical witnesses, was most probably occasioned by his ill-treatment in Bridewell, and the want of care when he went home; and they inclined to think that, if he had been properly treated when he came home, he might have recovered; the Court, under these circumstances, and others in favour of the prisoner, left it to the jury to consider, whether the death of the apprentice was occasioned by the ill-treatment he received from his master after returning from Bridewell, and whether that ill-treatment amounted to evidence of malice; in which case they were to find him guilty of murder. () The prisoner Charles Squire, and his wife, were indicted for the murder of a boy who was bound as a parish apprentice to the prisoner Charles; and it appeared that both the prisoners had used the apprentice in a most cruel and barbarous manner, and had not provided him with sufficient food and nourishment: but the surgeon who opened the body deposed that in his judgment the boy died from debility, and for want of proper food and nourishment, and not from the wounds, &c., which he had received. Lawrence, J., was of the opinion that the case was defective as to the wife, as it was not her duty to provide the apprentice with sufficient food and nourishment, she being the servant of her husband, and so directed the jury, who acquitted her; but the husband was found guilty and executed. (k)

(i) R. v. Pitts, C. & Mars. 284.1

(j) Self's case, 1 East, P. C. c. 5, s. 13, p. 226, 7. 1 Leach, 137, and see the case more fully stated, post, p. 138.

(k) R. v. Squire and his wife, Stafford Lent Assizes, 1799, MS.; and as to the principles upon which the wife was acquitted, see the case more fully stated, vol. i. p. 151. After the surgeon had deposed that the boy died from debility, and for want of proper food and nourishment, and not from the wounds, &c., which he had received. the learned judge was proceeding to inquire of him whether, in his judgment, the series of cruel usage the boy had received, and in which the wife had been as active as her husband, might not have so far broken his

constitution as to promote the debility, and cooperate along with the want of proper food and nourishment to bring on his death, when the surgeon was seized with a fainting fit, and, being taken out of court, did not recover sufficiently to attend again upon the trial. The judge, after observing that, upon the evidence, as it then stood, he could not leave it to the jury to consider, whether the wounds, &c., inflicted on the boy, had contributed to cause his death, said, that if any physician or surgeon were present who had heard the trial, he might be examined as to the point intended to be inquired into; but no such person being present, he delivered his opinion to the jury, as stated in the text.

AMERICAN NOTE.

1 As to the exercise of influence upon the mind of another, causing him to so act as to produce injury to himself or a third person, see Bishop, i. ss. 560-563. Wharton

on Homicide, ss. 368-372. Hendrickson v. C., 85 Ky. 281. C. v. Webster, 5 Cush. (Mass.) 295.

The prisoner was indicted for the manslaughter of his apprentice by neglecting to provide him sufficient meat and drink, &c. The deceased was bound to the prisoner by indenture, by which he covenanted to find him clothes and victuals; his death was produced, according to the evidence of some medical men, by uncleanliness and want of food; Patteson, J., told the jury that, by the general law a master was not bound to provide medical advice for his servant; (7) yet that the case was different with respect to an apprentice, and that a master was bound during the illness of his apprentice to provide him with proper medicines; and that if they thought that the death of the deceased was occasioned, not by the want of food, &c., but by want of medicines, then, in the absence of any charge to that effect in the indictment, the prisoner would be entitled to be acquitted.' (m) An indictment for manslaughter in one count alleged that the deceased was the apprentice of the prisoner, and that it was his duty to provide sufficient food for her as such apprentice, and that he neglected to do so, &c., by means of which she died; in another count it alleged that the deceased was the servant of the prisoner, and that it was his duty to provide her with food, &c. An invalid indenture of apprenticeship was put in, and it appeared that the deceased had always been treated as an apprentice by the prisoner, and had performed such duties as an apprentice would have performed, but the prisoner being a farmer these duties were the same as those performed by ordinary farmers' servants; it was objected that the first count was not proved, as the indenture was invalid; and that the relation of master and servant never existed, for an invalid contract of apprenticeship could not be converted into a hiring and service; that the foundation of this indictment was that the prisoner was legally bound to provide maintenance for the deceased, and here it was clear he could neither have been compelled to support her as an apprentice or as a servant; but it was held, that the prisoner, having treated the deceased as his servant, could not turn round and say she was not his servant at all. (n) Where the first count stated that the deceased was the apprentice of the prisoner, and it was his duty to provide the deceased with proper and necessary nourishment, medicine, medical care and attention, and charged the death to be from neglect, &c.; and the second count charged that the deceased so being such apprentice as aforesaid,' was killed by the prisoner by over-work and beating; and the only evidence given to shew that the deceased was an apprentice was, that the prisoner had stated that he was his apprentice; Patteson, J., held that there was sufficient evidence to support the second count, but not the first. (0)

(1) See Sellen v. Norman, 4 C. & P. 80. (m) R. v. Smith, 8 C. & P. 135. See 38 & 39 Vict. c. 86, s. 6, noticed vol. i., Conspiracy.

(n) R. v. Davies, Hereford Summer Assizes, 1831, Patteson, J. MS. C. S. G. In support of this decision it may be observed, that although a son could not be punished for the murder of his father as for petit treason, under the 25 Edw. 3, s. 5, c. 2, unless by a reasonable construction he came under the word servant. Yet if he

1

were bound apprentice to his father or mother, or was maintained by them, or did any necessary service for them, though he did not receive wages, he might have been indicted by the description of servant. Hawk. P. C. c. 32, s. 2. 1 East, P. C. c. 5, s. 99, p. 336; and a near relation, as a sister, might be a servant within the statute, if she acted as such. R. v. Edwards. Stafford Assizes. MS. coram Lawrence, J. C. S. G.

(0) R. v. Crumpton, C. & Mars. 597.

If a mistress culpably neglects to supply proper food and lodging to her servant, at a time when the servant is reduced to such an enfeebled state of body or mind as to be helpless and unable to take care of herself, or is so under the dominion and restraint of the mistress as to be unable to withdraw herself from her control; and the death of the servant is caused or accelerated by such neglect, the mistress is liable to be convicted of manslaughter. (p)

The prisoner, who was the wife of J. S., was charged with the murder of her illegitimate child, aged three years, by omitting to give it proper food. The prisoner had in December, 1834, married J. S.; the deceased was her illegitimate child, and was born before her marriage; in the judgment of medical witnesses the death had proceeded from the want of proper food. For the prosecution R. v. Squire, (q) and the 4 & 5 Will. 4, c. 76, (the Poor Law Act) s. 71, were referred to; and it was submitted that the mother of an illegitimate child was bound to take care of her child, and might be guilty of murder if its death arose from neglect. Alderson, B.: The prisoner is indicted as a married woman: if her husband supplied her with food for this child, and she wilfully neglected to give it to the child, and thereby cansed its death, it might be murder in her. (r) In these cases the wife is in the nature of the servant of the husband it does not at all turn upon the natural relation of mother to charge her you must shew that the husband supplied her with food to give to the child, and that she wilfully neglected to give it. There is no distinction between the case of an apprentice and that of a bastard child, and the wife is only the servant of the husband, and, according to the case before Mr. Justice Lawrence, (q) can only be made criminally responsible by omitting to deliver the food to the child, with which she had been supplied by her husband. The omission to provide food is the omission of the husband, and the crime of the wife can only be the omitting to deliver the food to the child after the husband has provided it.' (t)

(p) R. v. Smith, 34 L. J. M. C. 53; et per Erle, C. J. It is undisputed law that if a person who has the custody of another who is helpless, leaves that other with insufficient food, and so causes his death, he is criminally responsible. But it is also clear that if a person having the exercise of free will, chooses to stay in a place where he receives insufficient food, and his health is injured, and death supervenes, the master is not criminally responsible.' The facts of this case would have supported an indictment on the 24 & 25 Vict. c. 100, s. 26, post, in this vol. But that clause was not adverted to in the case; and yet it seems very well worthy of consideration whether, where death results from the commission of an offence within that section, the case is not one of manslaughter.

(q) Supra, note (k), p. 13.

(r) This position was thought too wide in R. v. Bubb, infra, by Williams, J., as it is not limited to cases where death or serious bodily injury is contemplated. C. S. G.

(t) R. v. Saunders, 7 C. & P. 277. This

case was decided on the opening of counsel, and it did not appear whether the wife was living with her husband, or whether he was capable of maintaining the child. By the 4 & 5 Will. 4, c. 76, s. 71, the mother of every child born a bastard after the passing of the Act, so long as she shall be unmarried or a widow, shall be bound to maintain such child as a part of her family, until such child shall attain the age of sixteen.' By sec. 57, every man who, after the passing of the Act, marries a woman having a child or children, either legitimate or illegitimate, shall be liable to maintain such child or children as a part of his family' until sixteen, or until the death of the mother. In Laing v. Spicer, Tyrw. & Gr. 358, 1 M. & W. 129, it was held that the putative father of a bastard, on whom an order of maintenance had been made, under the 18 Eliz. c. 2, s. 2, and 49 Geo. 3, c. 68, before the passing of the 4 & 5 Will. 4, was no longer liable under such order, where the mother since the passing of that Act had married a person capable of sup

An indictment for murder alleged that M. Hook, an infant of tender age, was a daughter of R. Hook, and was living with R. Hook and Elizabeth Bubb, and under their care and control, and unable to provide for or take care of herself, and that it was the duty of the prisoners to provide for and administer to M. Hook sufficient food for the support of her body, and that the prisoners feloniously, &c., did refuse and neglect to give and administer to M. Hook sufficient food for the support of her body; whereby she became mortally sick and died. (u) The case against Bubb was, that she was the sister of Hook's deceased wife, and on her death had gone to live with Hook,