1

[(7.) A being under a legal duty to supply medical aid for his son B, who has confluent small-pox, refuses to do so from religious motives, and B dies. It must be shewn that B's life would probably have been prolonged if medical aid had been provided, before A can be convicted of manslaughter.

2 ARTICLE 268.

CAUSING DEATH BY OMISSIONS OTHER THAN THOSE MENTIONED IN ARTICLE 267.

3 It is not a crime to cause death or bodily injury, even intentionally, by any omission other than those referred to in the last Article.

Illustration.

(1.) A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence.

4 ARTICLE 269.

DUTY TO PROVIDE NECESSARIES OF LIFE.

"Every person under a legal duty, whether by contract or by law, or by the act of taking charge, wrongfully or otherwise, of another person, to provide the necessaries of life for such other person, is criminally responsible if death is caused by the neglect of that duty, and if the person to whom the duty is owing, is, from age, health, insanity, or any other cause, unable to withdraw himself from the control of the person from whom it is due, but not otherwise.

Some of the duties of parents towards children and of masters towards apprentices are defined in Articles 307, 338, 339.

1 [R. v. Morby, L. R. 8 Q. B. D. 571.]

2S. D. Art. 212.

3 [R. v. Smith, 2 C. & P. 449. This subject is discussed in a striking manner by Lord Macaulay in his notes on the Indian Penal Code; see, too, Wharton on Homicide, § 72.] 4 S. D. Art. 213.

[See cases in Illustrations. Some duties of this sort are imposed by statute. See Articles 307, 338, 339. Draft Code, ss. 159-61.]

1

Illustrations.

[(5.) A neglects to provide proper food and lodging for her servant, B, (who is of weak mind, but twenty-three years old). B's life is shortened by such neglect. A is criminally responsible if B was in such an enfeebled state of body and mind as to be helpless and unable to take care of herself, or was under the dominion and restraint of A, and unable to withdraw herself from A's control; otherwise not.

(2.) 2 B, a girl of eighteen, comes from service to the house of her mother, A, and is there confined of a bastard child. A does not provide a midwife, in consequence of which B dies. A is not criminally responsible for this omission.

3

(3.) A persuades B, an aged and infirm woman, to live in his house, and causes her death by neglecting to supply her properly with food and fire, she being incapable of providing for herself from age and infirmity. A is criminally responsible for his neglect.

4 ARTICLE 270.

DELEGATION OF DUTY DEFINED IN ARTICLE 269.

If a person delegates the discharge of the duty mentioned in the last Article to his wife or to a servant, and supplies such wife or servant with the means of discharging the duties so delegated, it is the legal duty of such wife or servant to discharge such duties, and it is the legal duty of the man who delegates them to use ordinary care to see that they are properly discharged.

5

Illustration.

A, the sister of B's deceased wife, acts as B's housekeeper, and neglects to give to B's infant child food duly provided by B, and so causes its death. A is criminally responsible for this neglect. If B knew of A's neglect, and permitted her to continue it, he also is responsible, but not otherwise.

1 [R. v. Charlotte Smith, L. & C. 607.

2 R. v. Shepherd, L. & C. 147.

3 R. v. Marriott, 8 C. & P. 425.]

4 S. D. Art. 214.

5 [R. v. Bubb, 4 Cox, C. C. 457, 1 Russ. Cr. 657; R. v. Hook, 4 Cox, 457; 1 Russ. Cr. 658.]

1 ARTICLE 271.

WHEN DIRECT PERFORMANCE OF DUTY IMPOSSIBLE.

2 [It is the legal duty of a person who is unable to provide for any person necessaries which he is legally bound to provide for him to make application to the proper authorities for parochial relief in cases in which such authorities are legally bound to furnish such relief.

4

3 ARTICLE 272.

DUTY OF CARE IN DOING DANGEROUS ACTS.

It is the legal duty of every one who does any act which without ordinary precautions is, or may be, dangerous to human life, to employ those precautions in doing it.

5

Illustrations.

(1.) It is the duty of persons having charge of dangerous things, animals or machinery, to take care of them.

3

(2.) Workmen are employed to throw snow off the roof of a house. It is their duty to see whether people are passing, and to give warning before they throw it down.

5

6

(3.) It is the duty of people riding, driving, or sailing, to be careful. (4.) A turns out a vicious horse to graze on a common on which people are likely to pass. It is his duty to take proper precautions against its injuring passers-by.

7

(5.) A, B, and C went to practice with a rifle which carried a mile. A

1S. D. Art. 215.

2 [R. v. Mabbett, 5 Cox. C. C. 339; 1 Russ. Cr. 658.]

3 S. D. Art. 216.

4 [How far can it be said to be a legal duty to abstain from doing such acts wantonly even with precautions? Suppose a man, merely for his own amusement or from caprice, took a dangerous wild beast into a public street, using all proper precautions, and suppose the wild beast not withstanding broke loose and killed some one, would this be manslaughter? I know of no authority on the subject. See Draft Code, s. 162.

5 Cases collected in Wharton on Homicide, §§ 87-93, 99, 125, 107-24; and see 1 Russ. Cr. 822-4.

R. v. Dant, L. & C. 567.

7 R. v. Salmon & Others, L. R. 6 Q. B. D. 79. My judgment was nearly in the terms of Article 272, and the other judgments were to the same effect.]

[handed a board to B, who in C's presence fixed it in a tree, and they all fired at it at a distance of 100 yards, taking no precautions to prevent mischief to persons in the neighborhood. One of the shots killed a boy in a tree about 200 yards behind the target. All were held guilty of manslaughter.

1 ARTICLE 273.

DUTY OF PERSONS DOING ACTS REQUIRING SPECIAL SKILL OR KNOWLEDGE.

2 It is the legal duty of every person who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act of a dangerous character, and which requires special knowledge, skill, attention, or caution, to employ in doing it a common amount of such knowledge, skill, attention and caution.]

1 S. D. Art. 217.

2 [R. v. St. John Long, 4 C. & P. 404. (Per Garrow, B.) As to caution see R. v. St. John Long, 2nd case, 4 C. & P. 440; see other cases collected in 1 Russ. Cr. (5th ed.) -664-73. Draft Code, s. 162.]

CHAPTER XXIV.

HOMICIDE.

1 ARTICLE 274.

HOMICIDE DEFINED-WHEN A CHILD BECOMES A HUMAN

BEING.

2

[HOMICIDE is the killing of a human being by a human

being.

5

4

3 A child becomes a human being within the meaning of this definition, when it has completely proceeded in a living state from the body of its mother, whether it has or has not breathed, and whether the navel string has or has not been divided, and the killing of such a child is homicide, whether it is killed by injuries inflicted before, during, or after birth.

6

7 A living child in its mother's womb, or a child in the act of birth, even though such child may have breathed, is not a human being within the meaning of this definition, and the killing of such a child is not homicide.

9

8 ARTICLE 275.

KILLING DEFINED.

Killing is causing the death of a person by an act or

1 S. D. Art. 218.

2 [Draft Code, ss. 165, 166,

3 R. v. Poulton, 5 C. & P. 329.

4 R. v. Brain, 6 C. & P. 349.

5 R. v. Trilloe, Car. & Mar. 650.

Authorities collected, 1 Russ. Cr. (5th ed). 646.

7 R. v. Enoch, 5 C. & P. 539, and see note to the case; R. v. Wright, 9 C. & P. 754 ; R. v. Sellis, 7 C. & P. 850.]

8 S. D. Art. 219.

[See Draft Code, ss. 167-173. Dr. Wharton's work on Homicide contains an interesting and elaborate chapter (ch. xii. §§ 358-389), entitled "Casual Connection," into which some]

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