what has been said about a willing mind in the patient, it must be remembered that a prosecution is for the public benefit, and the willingness of the patient cannot take away the offence against the public.' In summing up, Bayley, B., said 'The points for your consideration are, first: whether Mrs. L. came to her death by the application of the liquid; secondly, whether the prisoner, in applying it, has acted feloniously or not. To my mind it matters not whether a man has received a medical education or not; the thing to look at is, whether, in reference to the remedy he has used, and the conduct he has displayed, he has acted with a due degree of caution, or, on the contrary, has acted with gross and improper rashness and want of caution. I have no hesitation in saying for your guidance, that if a man be guilty of gross negligence in attending to his patient after he has applied a remedy, or of gross rashness in the application of it, and death ensues in consequence, he will be liable to a conviction for manslaughter.' If you shall be of opinion that the prisoner made the application with a gross and culpable degree of rashness, and that it was the cause of Mrs. L.'s death, then, heavy as the charge against him is, he will be answerable on this indictment for the offence of manslaughter. There was a considerable interval between the application of the liquid and the death of the patient; yet if you think that the infliction of the wound on the 10th of October was the cause of the death, then it is no answer to say that a different course of treatment by Mr. C. might have prevented it. You will consider these two points: first, of what did Mrs. L. die? You must be satisfied that she died of the wound, which was the result of the application made on the 10th of October; and then, secondly, if you are satisfied of this, whether the application was a felonious application; this will depend upon whether you think it was gross and culpable rashness in the prisoner to apply a remedy which might produce such effects in such a manner that it did actually produce them. If you think so then he will be answerable to the full extent.' (g)

Any person, whether he be a regularly licensed medical man or not, who professes to deal with the life or health of his Majesty's subjects, is bound to have competent skill to perform the task that he holds himself out to perform, and is bound to treat his patients with care, attention, and assiduity, and if the patient dies for want thereof, such medical man is guilty of manslaughter. (h)

(g) R. v. St. John Long, 4 C. & P. 423. Bayley and Bolland, BB., and Bosanquet, J. The prisoner was acquitted. There was no negligence or inattention in the prisoner after the applications, as he did not know where Mrs. L. was until the 12th of October, and after that time she was attended by Mr. C. See R. v. McLeod, 12 Cox, C. C. 534, where the prisoner administered morphia without weighing it.

(h) R. v. Spiller, 5 C. & P. 333, coram Bolland, B., and Bosanquet, J. See also Lanphier v. Phipos, 8 C. & P. 475, where Tindal, C. J., said, Every person who enters into a learned profession undertakes to bring

to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your cause; nor does a surgeon undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill there may be persons who have higher education and greater advantages than he has; but he undertakes to bring a fair, reasonable, and competent degree of skill. See Ferguson's case, 1 Lew. 181. R. v. Spilling, 2 M. & Rob. 107. R. v. Moakes, 4 F. & F. 920, where a chemist made a mistake, and, under the circumstances, it was held not to be negligence.1

AMERICAN NOTE.

1 It is said that in America some of the judges shew more leniency to the ignorant

medical practitioner. See Bishop, i. s. 314, ii. s. 664. C. v. Thompson, 6 Mass. 134.

Where the prisoner was a herb doctor, and was charged with causing death by improperly administering medicines, Pollock, C. B., told the jury that it is no crime for any one to administer medicine, but it is a crime to administer it so rashly and carelessly as to produce death; and in this respect there is no difference between the most regular practitioner and the greatest quack.'(i)

Where the deceased had once been operated upon for cancer, and the disease again appeared in his face, and the prisoner, a blacksmith, told him he could cure him, and the deceased consented to place himself in his hands, and he put some kind of oil on his face, and then applied some kind of powder which caused the greatest agony, and death ensued in nine days; and after the prisoner had been employed there was a line of demarcation around the tumour, and all the tissues were destroyed, as if some powerful caustic had been applied, and the general symptoms shewed poisoning by some irritant poison; and on a post mortem examination, marks were found of extensive inflammation in the bowels and numerous ulcerations, which were the effects of mercury applied to the tumour; and the deceased died from the effects of corrosive sublimate. Corrosive sublimate was sometimes applied to wounds, but not to cancer. The deceased must have died of the cancer, but his death was accelerated. Watson, B., directed the jury to find the prisoner guilty if they considered he took upon himself the responsibility of attending to a patient suffering under cancer, when he was not qualified for the purpose. If he used dangerous applications, he was bound to bring skill in their use; and he thought that the prisoner's education and employment made the use of these dangerous substances almost amount to want of skill. The jury must, however, say whether what the prisoner did, produced or accelerated the death; or (and) whether the prisoner in their opinion had acted with neglect in using such remedies ()

Where a prisoner, who had formerly been a butcher by trade, had practised as a surgeon for many years without any legal qualification, was indicted for the manslaughter of a man on whom he had performed an operation for a disease in the bone, and the only question was whether the practice of the prisoner in the particular case amounted to gross and culpable negligence, and several medical men proved that the treatment pursued by the prisoner exhibited the grossest and most culpable ignorance, it was proposed for the defence to call witnesses to prove that the prisoner had treated them for similar complaints successfully, and R. v. Williamson (k) was relied upon. Maule, J., refused to allow the witnesses to be examined, saying, In R. v. William

(i) R. v. Crick, 1 F. & F. 519. See R. v. Webb, 1 M. & Rob. 405, 2 Lew. 196, where, per Lord Lyndhurst, C. B., 'I agree that in these cases there is no difference between a licensed physician or surgeon, and a person acting as physician or surgeon without a licence. In either case, if a party, having a competent degree of skill and knowledge, makes an accidental mistake in his treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter.

(j) R. v. Crook, 1 F. & F. 521. An unskilled practitioner is guilty of negligence if he prescribe dangerous medicines, of the use of which he ignorant. R. v. Markuss, 4 F. & F. 356. R. v. Chamberlain, 10 Cox, C. C. 486. R. v. Bull, 2 F. & F. 201, where, per Cockburn, C. J., 'If a person takes upon himself to administer a dangerous medicine, it is his duty to administer it with proper care, and if he does it with negligence, he is guilty of manslaughter.'

(k) Supra, p. 27.

Neither on The attenAnd in sum

son the witnesses were asked generally causâ scientiæ. the one hand nor the other can other cases be gone into. tion of the jury must be confined to the present case.' ming up the learned judge said, 'If a medical or any other man caused the death of another intentionally, that would be murder; but where a person not intending to kill a man, by his gross negligence, unskilfulness, and ignorance caused the death of another, then he would be guilty of culpable homicide; and the question for the jury is, whether the deceased died from the effects of the operation performed on him. by the prisoner, and whether the treatment pursued by the prisoner in the case of the deceased was marked by negligence, unskilfulness, and ignorance.' (1)

By infection. A question is put by Lord Hale, whether, if a person infected with the plague should go abroad with the intention of infecting another, and another should thereby be infected and die, this would not be murder; but it is admitted that, if no such intention should evidently appear, it would not be felony, though a great misdemeanor. (m) It may be observed, that an offence of this sort in breach of quarantine is punishable by statute. (n)

By rape. A question has been raised, whether an indictment for murder could be maintained for killing a female infant by ravishing her; but the point was not decided. (0) But there is no doubt that it

The prisoner was indicted for the murder of a child under ten, and it appeared that he had had connection with her and given her the venereal disease; and Wightman, J., told the jury that if they were of opinion that the prisoner had had connection with her, and she died from its effects, then the act being, under the circumstances of the case, a felony in point of law, this would of itself be such malice as would justify them in finding him guilty of murder. (p)

SEC. V.

Time of Death-Treatment of Wounds-Killing Person labouring under Disease.

Time of death. It is agreed that no person shall be adjudged by any act whatever to kill another, who does not die thereof within a year and a day after the stroke received, or cause of death admin

(7) R. v. Whitehead, 3 C. & K. 202. (m) 1 Hale, 432. See R. v. Greenwood, infra.

(n) 6 Geo. 4, c. 78, s. 17. Vol. i. p. 272. (0) R v. Ladd, 1 Leach, 96. 1 East, P. C. c. 226. The judges to whom the case was referred gave no opinion upon the point, as the indictment was holden to be defective.

(p) R. v. Greenwood, 7 Cox, C. C. 404. The report proceeds, 'The jury retired, and, after some time, returned into Court, saying

that they were satisfied that he had had connection, and that her death resulted therefrom, but were not agreed as to finding him guilty of murder. Wightman, J., told them that, under these circumstances, it was open to them to find the prisoner guilty of manslaughter, and that they might ignore the doctrine of constructive malice if they thought fit. The jury found a verdict of manslaughter.' Sed quære. C. S. G.

istered, in the computation of which the whole day upon which the hurt was done is to be reckoned the first. (q)

Treatment of wounds.1 - Questions may occasionally arise as to the treatment of the wound or hurt received by the party killed. Upon this subject it has been ruled, that if a man give another a stroke not in itself so mortal but that with good care he might be cured, yet if the party die of this wound within the year and day, it is murder, or other species of homicide, as the case may be; though if the wound or hurt be not mortal, and it shall be made clearly and certainly to appear that the death of the party was caused by ill applications by himself or those about him, of unwholesome salves or medicines, and not by the wound or hurt, it seems that this is no species of homicide. But when a wound not in itself mortal, for want of proper applications, or from neglect, turns to a gangrene or a fever, and that gangrene or fever is the immediate cause of the death of the party wounded, the party by whom the wound is given is guilty of murder, or manslaughter, according to the circumstances. For though the fever or gangrene, and not the wound, be the immediate cause of the death, yet the wound being, the cause of the gangrene or fever, is the immediate cause of the death, causa causati. (r) Thus, it was resolved, that if one gives wounds to another, who neglects the cure of them, or is disorderly, and doth not keep that rule which a person wounded should do, yet if he die it is murder or manslaughter, according to the circumstances; because if the wounds had not been, the man had not died; and, therefore, neglect or disorder in the person who received the wounds shall not excuse the person who gave them. (8) So where on an indictment for murder it appeared that the deceased had been waylaid and assaulted by the prisoner and severely cut across one of his fingers by an iron instrument, and the surgeon urged him to submit to amputation, but he refused, though he was told that his life would be in great hazard; and it was dressed day by day for a fortnight; when lock-jaw came on, induced by the wound in the finger, and the finger was then amputated, but too late; and the lock-jaw ultimately caused death: and the surgeon thought it most probable that the life would have been saved if the finger had been amputated in the first instance; and it was contended that it was the obstinate refusal to submit to amputation that was the cause of the death; Maule, J., held that that was no defence; and told the jury that if the prisoner wilfully, and without any justifiable cause, inflicted the wound, which was ultimately the cause of the death, he was guilty of murder; that for this purpose it made no difference

(g) 1 Hawk. P. C. c. 31, s. 9. 4 Blac. Com. 197. 1 East, P. C. c. 5, s. 112, pp. 343, 344.

(r) 1 Hale, 428.

(s) Rew's case, Kel. 26.

AMERICAN NOTE.

1 See C. v. Green, 1 Ashm. 289. C. v. M'Pike, 3 Cush. 181. S. v. Corbett, 1 Jones (Law) 267. M'Allister v. S., 17 Ala. 434. Bowles v. S., 58 Ala. 335. Kee v. S. 28 Ark. 155. As to grossly erroneous treatment by surgeon exonerating the original wrongdoer, see Persons v. S., 21 Ala. 300. C. v. Hackett, 2 Allen, 136. The law in America seems to

accord with that in England, thongh perhaps some of the cases may appear to favour the view that if the wound is not dangerous in itself, and the treatment is grossly erroneous, the person who has inflicted the wound is not guilty of felonious homicide. Bishop, ii. ss. 638, 639.

whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of the deceased not having adopted the best mode of treatment; the real question was whether in the end the wound was the cause of death. (t)

Where on an indictment against a principal in the second degree for murder by shooting in a duel, after the examination of the first medical witness, who stated his opinion that the operation (of which no account is given in the report) was the only chance of saving the life of the deceased; the counsel for the prisoner were proceeding to cross-examine him as to the nature and seat of the wound, to shew that the opinions he had expressed of its danger and the necessity of the operation were not correct; Erle, J., said, 'I presume you propose to call counter-evidence and impeach the propriety of the operation; but I am clearly of opinion that if a dangerous wound is given, and the best advice is taken, and an operation performed under that advice, which is the immediate cause of death, the party giving the wound is criminally responsible.' It was proposed to shew that the opinion formed by the medical men was grounded upon erroneous premises, and that no operation was necessary at all, or at least that an easier and much less dangerous operation ought to have been adopted; and it was submitted that a person is not criminally responsible where the death is caused by consequences which are not physically the consequences of the wound, but can only be connected with the first wound by moral reasonings; as here that which occasioned death was the operation, which supervened upon the wound, because the medical men thought it necessary. Erle, J., 'I am clearly of opinion, and so is my Brother Rolfe, that where a wound is given, which, in the judgment of competent medical advisers, is dangerous, and the treatment which they bona fide adopt is the immediate cause of death, the party who inflicted the wound is criminally responsible, and of course those who aided and abetted him in it. I so rule on the present occasion; but it may be taken, for the purpose of future consideration, that it having been proved that there was a gunshot wound, and a pulsating tumour arising therefrom, which, in the bonâ fide opinion of competent medical men, was dangerous to life, and that they considered a certain operation necessary, which was skilfully performed, and was the immediate and proximate cause of death; the counsel for the prisoner tendered evidence to shew this opinion was wrong, and that the wound would not have inevitably caused death, and that by other treatment the operation might have been avoided, and was therefore unnecessary. I will reserve this point for the consideration of the judges, although I have no doubt upon the subject. To admit this evidence would be to raise a collateral issue in every case as to the degree of skill which the medical men possessed.' (u)

Where the deceased had been severely kicked on the stomach, and brandy had been given her by a surgeon to restore her, and (t) R. v. Holland, 2 M. & Rob. 351.

(u) R. v. Pym, 1 Cox, C. C. 339. Acquittal.1

AMERICAN NOTE.

1 See Powell v. S., 13 Tex. Ap. 244. C. v. Costley, 118 Mass. 1. S. v. Scates, 5 Jones (N.C.), 420.