and became the manager of his household. He was absent from home except from Saturday night until Monday morning, but always provided ample food for the whole family. Hook's children were healthy till Bubb undertook their management, but she systematically neglected them, especially the deceased, and, notwithstanding the remonstrances of the neighbours, persisted in withholding sufficient food, for want of which the child gradually wasted away, and died of actual starvation. Williams, J., told the jury that the indictment alleges, first, a duty on the part of the prisoner to supply the necessaries of life to the child; it alleges, secondly, a malicious neglect or omission to perform that duty; and it alleges, thirdly, that the omission or neglect caused the death of the child. Now, first, with respect to the proposition that it was the duty of the prisoner to provide food necessary to sustain the life of the child. It is quite clear that the circumstance of the prisoner being aunt of the child, or being resident in the same house with the child, was not sufficient to .cast upon her the duty of providing food for it. But if the prisoner undertook the charge of attending to the child, and of taking that care of it which its tender age required, a duty then arose to perform those duties properly; and if the prisoner, being in the capacity, as it were, of a servant or nurse, and having the charge of attending and taking care of the child, was furnished with the means of doing so properly, then the duty arose, which is charged in this indictment, of giving it sufficient food, and if the prisoner neglected to perform that duty, beyond all question she is criminally responsible. It remains for me to explain to what extent she is responsible. If the omission or neglect to perform the duty was malicious, then the indictment would be supported, and the crime of murder would be made out against the prisoner; but if the omission or neglect were simply culpable, but not arising from a malicious motive on the part of the prisoner, then it would be your duty to find her guilty of manslaughter only. And here it becomes necessary to explain what is meant by the expression malicious, which is thus used. If the omission to supply necessary food was accompanied with an intention to cause the death of the child, or to cause some serious bodily harm to it, then it would be malicious in the sense imputed to it by this indictment, and in a case of this kind it is difficult, if not impossible, to understand how a person who contemplated doing serious bodily injury to the child by the deprivation of food, could have meditated anything else than causing its death. You will, therefore, probably consider that the question resolves itself into this: Did the prisoner contemplate, by the course she pursued, the death of the child? If she did, and death was caused by the course she pursued, then she is guilty of murder. But if you are not satisfied that she contemplated the death of the child, then, although guilty of a culpable neglect of duty, it would amount only to the crime of manslaughter. If, on the other hand, you should think either that she did not undertake the duty of supplying the child with proper food, or that she did not culpably neglect that duty, then you will acquit her.' (v)

(v) R. v. Bubb, 4 Cox, C. C. 455. The indictment also alleged the duty to provide VOL. III.-2

clothing and the neglect thereof; but as the child is alleged to have died of 'actual

On the trial of Hook for the manslaughter of the same child, in addition to the facts proved on the trial of Bubb, it was proved that when he was at home she treated the children better than on other occasions; and that he had uniformly behaved kindly to them, and especially to the deceased. Williams, J., told the jury that this case differs from the last in this very essential particular, that here there is a duty directly cast upon the prisoner to provide sufficient food for the child if he has sufficient means for doing so, and inasmuch as it is proved that the prisoner had such means, there can be no doubt but that the law threw upon him the duty of preserving the child's life by providing it with proper food. But the peculiarity of the case is this, that inasmuch as we must take it that Bubb was guilty, she could not have been so, unless the prisoner had provided her with sufficient means for feeding the child, and it must be taken as an admitted fact in this case that the prisoner did take such steps as but for Bubb's misconduct, would have preserved the child's life. Then the question is how is the charge shaped against the prisoner? If Bubb neglected her duty by depriving the child of food for any purpose, and the prisoner was conscious of it, and nevertheless chose to let her persevere in that course, he thus became himself an instrument, as it were, of depriving the child of sufficient food, and he would be. guilty upon this indictment. If, therefore, you think he was conscious that Bubb deprived the child of food to such an extent as to render it dangerous to the child's life, and, being so conscious, instead of preventing her from continuing in this course, he allowed her to do so, and was culpably negligent of the obvious duty cast upon him, then he is guilty of manslaughter, because then substantially he would have neglected to provide the child with proper food.' (w)

Where parent, child, and servant reside in the same house, the duty of the parent is to provide food for the child, and the duty of the servant is to supply the food, when so provided by the parent, to the child, an indictment therefore charging both with the same duty cannot be supported; but there ought to be separate indictments charging each in respect of the duty incumbent on each. (x)

Upon an indictment against husband and wife for the murder of their infant child, it appeared that the child's death was produced by English cholera, and that insufficient food had a tendency to produce that complaint; the husband was in work, but he spent the money he obtained on himself; and the wife did not appear to have any money or food to give to the child: Martin, B., consulted Erle, J., and they were of opinion that it was the bounden duty of all persons having children, when they themselves cannot support them, to endeavour to obtain the means of getting them support, and if they

starvation' all relating to the clothing has been omitted. This and the next case underwent the most careful consideration, and the law on the subject was fully discussed between Williams, J., Lord Campbell, C. J., and the Editor, on a review of the previous cases. C. S. G. See R. v. Conde, 10 Cox, C. C. 547.

(w) R. v. Hook, 4 Cox, C. C. 455.

(x) This was agreed between Williams, J., and the Editor in R. v. Bubb, supra, on an indictment before the 14 & 15 Vict. c. 100. But qu., whether one indictment in the present form would not suffice. C. S. G.

wilfully abstain from going to the union, where by law they have a right to support, and their children die in consequence, they are criminally responsible for it; but there ought to be a distinct abstaining to go for several days: and if a married woman neglects for four or five days to go to the union for the purpose of getting support for a child, she knowing that such neglect would be likely to produce the death of the child, it is manslaughter. (y)

But where a woman took charge of the illegitimate child of her dead daughter, and the child died for want of proper nourishment, Brett, J., told the jury that mere negligence would not be sufficient to convict the prisoner. There must be negligence so great that they must be of opinion that the prisoner was reckless whether the child died or not. Her omission to send the child to the workhouse would not be sufficient. The question was whether she was wickedly careless. She might have been very careless, and ought to have done more than she did, but the case must be judged according to the state and condition of life of the prisoner, and the jury must say whether she had let the child die by wicked negligence or not. (yy)

By the 31 & 32 Vict. c. 122, s. 37, when any parent shall wilfully neglect to provide medical aid for his child, being in his custody and under the age of fourteen years, whereby the health of such child shall be seriously injured, he is guilty of an offence punishable summarily before justices. (2) Since that statute, if from a conscientious religious conviction that in answer to prayer God would heal the sick, and in obedience to the tenets of a sect called the Peculiar People, and not from any intention to avoid the performance of his duty to his child or to break the law, the parent of a sick child, being one of such sect, while furnishing it with all necessary food and nourishment, refuse to call in medical aid though well able to do so, and the child in the opinion of the jury die from not having such medical aid, it was held to be manslaughter. (zz) But in order to convict of manslaughter, it is necessary to prove that the neglect caused or accelerated the death. It is not enough that it might have done so. (a)

The prisoner was tried for the murder of her daughter: the case for the prosecution was that the prisoner, having great ill-will against the deceased, had purposely neglected to procure a midwife, or other proper person to attend her daughter when she was taken in labour, and that by reason thereof she died in childbirth; she was about eighteen years of age and unmarried. The prisoner had married a second husband, and after the marriage the daughter had lived with them for some time, and then went out to service, occasionally, returning to live with them when she was out of place; at last she

(y) R. v. Mabbett, 5 Cox, C. C. 339. See the latter part of note (t), ante, p. 16. (yy) R. v. Nicholls, 13 Cox, C. C. 75.

(2) The section is repealed by the Prevention of Cruelty to Children Act, 1889, 52 & 53 Vict. c. 44.

(zz) R. v. Downes, 1 Q. B. D. 25. 13 Cox, C. C. 111. 45 L. J. M. C. 8; et per Bramwell, B. "The statute referred to has imposed a positive and absolute duty, whatever the conscientious or superstitious opinions

of people may be, to provide medical aid for their children. It is found that the prisoner thought it was irreligious to do it, but the law does not allow him to break its provisions; he must obey it whatever his opinions about the law may be;' et per Mellor, J. The statute by "wilfully neg lect "means intentionally, or purposely omit

to call in medical aid.'

(a) R. v. Morby, 8 Q. B. D. 571.

returned to her step-father's house on a Tuesday, and continued there till the Saturday following, when she died. It was objected that the prisoner was under no legal obligation to procure or try to procure the attendance of a midwife. Williams, J., directed the jury to consider whether it was established by the evidence that the death was attributable to the prisoner's neglect to use ordinary diligence in procuring the assistance of a midwife, or other proper attendant, and if it was so established, then to consider whether by so neglecting she intended to bring about the death of her daughter; and if so, the jury were to convict her of murder; but if not, of manslaughter: the jury convicted her of manslaughter; and it was held that there was not an omission of any duty rendering the prisoner liable to be convicted. Assuming that if she had used ordinary care she would have procured the attendance of a midwife; that she knew where a midwife could be found; and that if the midwife had been summoned she would have attended; her skill must have been paid for, and there was no evidence that the prisoner had the means at her command of paying for that skill. The midwife would probably have attended without being paid. Yet the prisoner could not be criminally responsible for not asking for that aid, which, perhaps, might have been given without compensation. Aid of this kind was not always required in childbirth, and sometimes no ill consequences resulted from its absence. (aa)

Where on an indictment for murder of an infant it appeared that the infant was found dead in a bag without any preparation having been made for it by the prisoner, it was held that she was not guilty of manslaughter, although she knew she was about to be delivered, and wilfully abstained from taking the necessary precautions to preserve the life of the child after its birth, and the child died in consequence of that neglect. (b)

6

The prisoner was indicted for the manslaughter of her child, and it appeared that she had been delivered of the child whilst on the seat of a privy, and that the child had breathed. The prisoner was seventeen years old, subject to epileptic fits, and this was her first child. Erle, J., told the jury, The question in this case is, whether there was any negligence on the part of the mother in not providing for the safety of her offspring. It is but reasonable to presume that the child dropped from her whilst she was on the privy. Now, if you think that she had the means and the power of procuring such assistance as might have saved the life of the child, by neglecting to do so she would be clearly guilty of manslaughter. But it is proper that you should take into your consideration that the prisoner is very young; that this was her first child; that she was subject to epileptic fits, and that the probability is that the child could have survived but a very few moments after its immersion in the soil.' (c) Where a child is very young and not weaned, the mother is

(aa) R. v. Shepherd, 1 L. & C. 147. (b) R. v. Knights, 2 F. & F. 46. Cockburn, C. J., and Williams, J. But where a woman, in order to conceal her shame, delivered herself, and in consequence, by her

negligence, the child, after having a separate existence, died, Brett, J., ruled that she was guilty of manslaughter. R. v. Handley, 13 Cox, C. C. 79.

(c) R. v. Middleship, 5 Cox, C. C. 275.

criminally responsible if the death arose from her not suckling the child when she was capable of doing so. (d)

If a person, who stands in the place of a parent, inflicts corporal punishment on a child, and compels it to work for an unreasonable number of hours, and beyond its strength, and the child dies of a disease hastened by such ill-treatment, it will be murder if the treatment was of such a nature as to indicate malice: but if such person believed that the child was shamming illness, and was really able to do the work required, it will only be manslaughter although the punishment were violent and excessive. (e)

Where a party undertakes to provide necessaries for a person, who is so aged and infirm that he is incapable of doing so for himself, and through his neglect to perform his undertaking death ensues, he is criminally responsible; so also if a party confines another, he is bound to provide him with necessaries, and if he neglect so to do, and in consequence thereof the party dies, he is criminally responsible. Upon an indictment for murder, which stated that the deceased was of great age, and was residing in the house and under the care and control of the prisoner, and that it was his duty to take care of and find her sufficient meat, &c., and then alleged her death to have been caused by confining her against her will, and not providing her with meat and other necessaries; it appeared that she was seventy-four years of age, and that upon the death of her sister, with whom she had lived, the prisoner, who attended the funeral, took the deceased home. with him, saying she was going home to live along with him till affairs were settled, and he would make her happy and comfortable; and on another occasion the prisoner had said that in consideration of a transaction, which he mentioned, he had undertaken to keep the deceased comfortable as long as she lived. When the deceased first went to the prisoner's a servant was kept, and the deceased lodged in. the back parlour; afterwards she was removed into the kitchen. After some time no servant was kept, and the deceased was waited on by the prisoner and his wife, and she remained locked in the kitchen alone, sometimes by the prisoner and sometimes by his wife, for hours together; and on several occasions had complained of being confined; in the cold weather no fire was discernible in the kitchen, and for some time before her death the deceased was continually locked in the kitchen, and not out of it at all. An undertaker's man stated that, from the appearance of the body, he thought she had died from want and starvation. A surgeon proved that the immediate cause of death was water on the brain; that the appearance of all parts of the body betokened the want of proper food and nourishment, that there was great emaciation of the body, and that the water on the brain might have been produced by exhaustion. Patteson, J., If the prisoner was guilty of wilful neglect, so gross and wilful that you are satisfied he must have contemplated the death of the deceased, then he will be guilty of murder; (ƒ) if, however, you

(d) R. v. Edwards, 8 C. & P. 611, Patte

son, J.

(e) R. v. Cheeseman, 7 C. & P. 455, Vaughan, J. See this case, post.

(f) This position is too narrow. If the

prisoner intends either death, or grievous injury to the health, or body of the party, it is murder; as Williams, J., and the Editor agreed in R. v. Bubb, ante, p. 171. C. S. G.