There was no nurse in the room during this operation other than the prisoner Creech, who acted as nurse.

On the Wednesday the girl's condition was worse, and a third physician, Dr. Ernest Hall, was called in. All the physicians diagnosed the case as one of septicemia or bloodpoisoning. She died at eight o'clock on Wednesday night.

A post-mortem was performed by Dr. John Lang, but was confined to the pelvic organs; and in regard to which the evidence of Dr. Lang was as follows:

"I examined the womb, the ovaries and the fallopian tubes and the broad ligaments. The womb was considerably enlarged; the organ weighed about five ounces, and its cavity measured three and a-half or four inches, as if there had been gestation for two or three months. The womb was empty. The posterior surface of the womb was darkish in appearance; there were also darkish patches on the anterior surface. The interior of the womb was raw-looking and coated with a mucous-like substance, having a somewhat fœtid odour. The lips of the mouth of the womb were thickened; the anterior lip bruised. There was a small wound on the anterior lip and two small wounds on the roof of vagina, such as would be produced by being caught by valcellum forceps (the instrument used in the curetting operation). The ovaries and broad ligaments were normal in appearance; the fallopian tubes were congested; the pelvis was full of a bloody fluid; the body had been injected by the undertaker with fluid before the post-mortem, and vitiated the post-mortem. I believe the woman had been pregnant. If a recent pregnancy, then two or three months. I saw nothing to account for a miscarriage; the body was well nourished."

Dr. Lang also said, in cross-examination: "I am unable to form any safe conclusion from the post-mortem examination. I meant that when I used the phrase 'the post-mortem was vitiated.'"

Each of the medical men examined at the trial said that he could not swear positively to the cause of death; that it was possible that death might have been occasioned by some

undiscovered disease, of which, however, there was no indication, but which a post-mortem of the other organs might have disclosed.

There was evidence tending to shew that, apart from any criminal intent, the prisoner Garrow had acted with gross negligence and rashness in prescribing ergotine, introducing the "sound," and then leaving the girl without attention.

I read to the jury the sections of the Code bearing upon homicide, and attempts at procuring abortion and miscarriage, and I told them that if death was either occasioned or accelerated by medicines or drugs administered or operations performed by the prisoner Garrow, then he was guilty of manslaughter; if they thought that in prescribing the drug, if that caused or accelerated the death, or performing the operation, if the operation caused or accelerated the death, he acted either with a criminal intention or with any gross negligence.

That regarding the prisoner Creech, he was not concerned with the mere gross negligence or rashness of Garrow. That they could only convict him if they concluded that Garrow's medicines or operation were administered or performed with criminal intent, causing or accelerating death, and that Creech counselled, procured or assisted in administering the drug or performing the operation with the like criminal intent.

I left it to the jury to say whether they were satisfied that the girl came to her death from either the operation or the medicines of the prisoner Garrow, telling them that they must be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that her death was the result of the operation and drugs, or of either of them. The jury having convicted the prisoners of manslaughter I reserved the question for the opinion of the Court, whether there was in point of law evidence to go to the jury that death resulted from the medicines and operation, or either of them, and in the meantime I deferred sentence and admitted the prisoners to bail.

If, then, the Court should be of opinion that there was evidence in point of law upon which the jury might find that

the death resulted from the criminal acts of the prisoners, or either of them, the conviction is to be affirmed, otherwise to be quashed.

The question was argued before DAVIE, C.J., MCCREIGHT and WALKEM, JJ., on 16th May, 1896.

A. G. Smith, for the Crown.

S. P. Mills, for the prisoner Creech.

Frank Higgins, for the prisoner Garrow.

Victoria, B. C., July 27th, 1896.

MCCREIGHT, J.—

Cur. adv. vult.

In this case it was contended the evidence of the cause of death was not sufficient, and that the prisoners were not sufficiently proved to have been connected with it. case of Reg. v. Morby, 8 Q.B.D. 571, where a man was indicted for manslaughter in neglecting to procure medical aid for his child, was relied upon, among other authorities, as strongly supporting this view; but in that case no medical man saw the deceased during life. The only medical witness, who had made a post-mortem, could say no more than that "in his opinion the chances of life would have been increased by having medical advice; that life might possibly have been prolonged thereby, or indeed might probably have been, but that he could not say that it would, or, indeed, that it would probably have been prolonged thereby."

In the present case, besides the post-mortem, the deceased was attended by three medical men, who diagnosed the case as one of blood-poisoning, and one of them stated "that the symptoms pointed to a miscarriage, the girl having been pregnant about six weeks or two months. He was of opinion that the girl was then suffering from blood-poisoning caused by decomposition consequent upon miscarriage," but neither he nor any of the other medical witnesses would state positively that it was a case of miscarriage, or that there was blood-poisoning, or that the girl had even been pregnant.

However, the surrounding circumstances stated in the special case furnish a great deal of light, see Roscoe's Criminal Evidence, 11th Ed., pp. 710, 711, under the title "proof of the means of killing," and corroborate the views of the medical witnesses so distinctly that I think the learned Chief Justice had no choice but to leave the case to the jury.

In Reg. v. Burton, Dearsley's Crown Cases, 284, Mr. Justice Maule points out that there is no rule that the corpus delicti must "be expressly" proved in every case, though Lord Hale's caution in this respect should be attended to in cases of murder where the disappearance of the supposed murdered man is consistent with his being still alive.

The only question which is left to the Court in this case is whether the case should have been withdrawn from the jury or not, and I do not think it would have been right to withdraw it from them. I may add that I am far from suggesting that they were not warranted in arriving at their verdict, and I think the conviction should be affirmed.

DAVIE, C.J., and WALKEM, J., concurred.

Note: Post-mortem examination.

Conviction affirmed.

The medical practitioner should examine all the important organs for marks of natural disease and note down any unusual pathological appearances or abnormal deviations although they may at the time appear to have no bearing on the cause of death.

Mr. Clark Bell, in his 12th Amer. edition of Taylor's Medical Jurisprudence, 1897, page 23, says: "In medicolegal cases involving questions of life and death, the examination of the body cannot be too thorough and exhaustive; the omission of any one organ is a radical and sometimes a fatal defect. This was well illustrated in 1872 by two leading cases in the United States-that of Mrs. E. G. Wharton, charged with poisoning General Ketchum, and that of Dr. Paul Schoeppe, charged with poisoning Miss Steinnecke. In neither case was the post-mortem sufficiently complete."

Notes: (Continued).

The body is inspected not merely to show that a person has died as a result of the criminal act, but to prove that he has not died from any natural cause. Medical practitioners commonly give their attention exclusively to the first point, while lawyers, defending accused parties, very properly direct a most searching examination to the last mentioned point, i.e., the healthy or unhealthy state of those organs which are essential to life. If the cause of death is obscure after the general examination of the body, there is good reason for inspecting the condition of the spinal marrow. In certain obscure cases it may become necessary to institute a microscopic examination, especially of the brain and heart. Taylor's Medical Jurisprudence, 1897, 12th Am. Ed. 23.

[HIGH COURT OF JUSTICE, ONTARIO.]

BEFORE ROSE J. AND MACMAHON, J.

THE QUEEN v. FRAWLEY.

(25 Ont. Rep. 431.)

Conspiracy-Proof of Single indictment against one conspirator-Cr. Code 64, 394.

1. A conspiracy to defraud is indictable, although the conspirators have been unsuccessful in carrying out the fraud.

2. One conspirator may be indicted and convicted without joining the others, although living and within the jurisdiction.

This was a case reserved by Michael Houston, Esq., police magistrate for the town of Chatham, for the consideration of the Justices of the Common Pleas Division :—

The defendant Thomas Frawley, of the town of Chatham, in the County of Kent, was, on the 31st day of January, in the year of our Lord 1894, charged before me the undersigned, Michael Houston, police magistrate in and for the town of Chatham, in the County of Kent, for