[*695

with rashness will, in my opinion, be guilty of manslaughter. With respect to 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 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."(b)

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. Upon an indictment for manslaughter, by causing the death of a child by putting a plaster made of corrosive and dangerous ingredients upon its head, it appeared that the child for eighteen months had been afflicted with scald head, and was taken to the prisoner, who applied two plasters successively all over its head. Two surgeons proved that there was a general sloughing of the scalp, which caused the death, and in their opinion this might have been produced by the plasters; there was no evidence to show of what the plasters were composed. Bolland, B., "The law, as I am bound to lay it down (and I believe I lay it down as it has been agreed upon by the judges; for cases of this kind have occurred of late more frequently than in former times) is this: if any person, whether he be a regular or licensed medical man or not, professes to deal with the life or health of his Majesty's subjects, he is bound to have competent skill to perform the task that he holds *himself out to perform, and he is bound to treat his patients with care, attention, and assiduity."(c)

[*696 The prisoner, a surgeon and man-midwife, was charged with manslaughter upon an indictment, which he alleged that he undertook the care and charge of B. K. as

(b) Rex v. St. John Long, 4 C. & P. 423 (19 E. C. L. R.), 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.

(c) Rex v. Spiller, 5 C. & P. 333 (24 E. C. L. R.), coram, Bolland, B., and Bosanquet, See also Lanphier v. Phipos, 8 C. & P. 475 (34 E. C. L. R.), 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."

a man-midwife, and to do everything needful for her during and after the time of her delivery, and that after B K. was delivered he neglected to take proper care of and to render her proper assistance, by means whereof she died. Tindal, C. J., said to the jury, "You are to say whether, in the execution of that duty which the prisoner had undertaken to perform, he is proved to have shown such a gross want of care, or such a gross and culpable want of skill, as any person undertaking such a charge ought not to be guilty of; and that the death of the person named in the indictment was caused thereby."(d)

If a medical man, though lawfully qualified to act as such, cause the death of a person by the grossly unskilful or grossly incautious use of a dangerous instrument, he is guilty of manslaughter. Upon an indictment for manslaughter in causing the death of a woman by using a lever in delivering her of a child, it appeared that the prisoner had for nearly thirty years carried on the business of an apothecary and man-midwife, and that he was qualified by law to carry on that profession; his practice had been very considerable, and (amongst others) he had attended the deceased herself on the birth of all her children. On the occasion in question, he made use of a metal instrument, known in midwifery by the name of a vectis, or lever, inflicting thereby such grievous injuries on the person of the deceased, as to cause her death within three hours; and it was proved by the evidence of medical men, first, that the instrument used was a dangerous one, and that at that period of the labor it was very improper to use it at all; and secondly, that it must have been used in a very improper way, and in an entirely wrong direction. There was no evidence on either side as to whether the prisoner had or had not ever made use of such an instrument on former occasions. Coleridge, J., told the jury, that the questions for them to decide were, whether the instrument had in this instance caused the death of the deceased, and whether it had been used by the prisoner with due and proper skill and caution, or with gross want of skill, or gross want of attention. No man was justified in making use of an instrument, in itself a dangerous one, unless he did so with a proper degree of skill and caution. If the jury thought that in this instance the prisoner had used the instrument with gross want *of skill, or *697] gross want of caution, and that the deceased had thereby lost her life, it would be their duty to find the prisoner guilty.(e)

If a person brings a competent knowledge, and on a particular occasion makes an accidental mistake, he is not answerable; but if a person not acquainted with the medical art administers a dangerous remedy to a person laboring under a serious disease, proper medical assistance being at the time procurable, and death ensues from such administering, it is manslaughter. So if such person administers medicine, of the nature of which he is ignorant, and such medicine causes death. The prisoner was indicted for manslaugter in causing the death of R. R., by administering to him a large quantity of Morison's pills; the deceased, being ill of small-pox, had sent for the prisoner, who was a publican and agent for the sale of the pills, and under his advice had taken large quantities of them; his strength gradually wasted under their influence, and on the morning of his death, while in a state of collapse, the prisoner had, of his own accord, administered to him twenty pills. The prisoner had treated the deceased with great kindness during his illness, and on a former occasion the deceased had recovered from a dangerous illness while under the prisoner's treatment. Several medical men gave it as their opinion that medicine of the violent character, of which the pills were composed, could not be administered to a person in the state in which the deceased was, without accelerating his death. 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 license. 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; but if,

(d) Ferguson's case, 1 Lew. 181. Quære, whether this be not the same case as that mentioned in Rex v. St. John Long, 4 C. & P. 404, 405 (19 E. C. L. R.), see ante, p. 691. If so, the prisoner was a blacksmith, drunk, and wholly ignorant of the proper steps to be taken; no evidence is stated in Lewin.

(e) Rex v. Spilling, 2 M. & Rob. 107.

where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to administer a violent and dangerous remedy to one laboring under discase, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter."(ƒ)

[*698

Where the prisoner, a herb doctor, gave a woman a bottle of lobelia inflata, and desired her to give two teaspoonfuls of the infusion three times a day to a child whom he examined, and she accordingly gave the child some doses of the infusion for several days, and then ceased, as she thought it got better; but the child died three weeks after it was seen by the prisoner, and more than a week after the last dose had been administered, and it was proved that the child had died of overdoses of lobelia, which is an acro-narcotic poison, and is occasionally used by regular practitioners; 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. All that the prisoner ought to be held *responsible for was, what took place in the first week after he saw the child. The prisoner had not seen the child for three weeks before its death. The charge against the prisoner is, not that he carelessly allowed the woman to be in possession of a dangerous medicine, but that he caused the death of the child by administering the medicine; but in the evidence it appeared that the child got better while the medicine was being given to it. If the prisoner had been a medical man, I should have recommended you to take the most favorable view of his conduct; for it would be most fatal to the efficiency of the medical profession if none could administer medicine without a halter round his neck; and although I cannot speak of a person in the prisoner's position in language as strong, still he ought not to be responsible unless it has been proved with reasonable certainty that he caused the death by the careless administration of the drug."(g)

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 tumor, and all the tissues were destroyed, as if some powerful caustic had been applied, and the general symptoms showed 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 tumor; 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 the remedies he had done.(h)

On an indictment for manslaughter it appeared that the prisoner, a medical man, lived with his mother, and she being ill, he got a drachm of prussic acid, which filled one fourth of an ounce bottle. After she came in from a walk he gave her some of the prussic acid; she went upstairs, and, whilst taking off her bonnet, died. The prisoner said he had given her four drops, but it appeared that the bottle had lost much more. The cork however was broken, and the bottle was loose in his pocket. Very obscure evidence was given as to the relative strengths of different (f) Rex v. Webb, 1 M. & Rob. 405; 2 Lew. 196. The very learned Chief Baron added, "If I entertained the least doubt of this position, I might fortify it by referring to the opinion of Lord Ellenborough, in Rex v. Williamson." Supra, p. 689.

(g) Reg. v. Crick, 1 F. & F. 519.

(h) Reg. v. Crook, 1 F. & F. 521.

preparations of prussic acid, as to the mode of measuring drops, as to the quantities *699] contained in drops, and as to the quantity likely to kiil; but the cork being held partly in would much affect the *quantity of a drop, and the state of a a person's body might vary the effect of a few drops of the poison. Cockburn, C. J., told the jury that "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. But do the facts here show such culpable negligence on the part of the prisoner? If the prisoner had given the deceased all that was missed from the bottle, it would be so, for the quantity would be so large that it must have been the grossest negligence. But the cork was found broken and half out of the bottle, so that it is impossible to say how much of the poison might not have escaped; or again, the cork being half gone, the liquid might have dropped faster than the prisoner supposed, and if so it would not be such culpable negligence as would make him criminally responsible."(i)

The prisoner was indicted for manslaughter, and was an herb doctor, and had found the deceased ill of a cold from standing in a market, and volunteered to prescribe for her, and put into a small bottle of pale brandy about an ounce of meadow saffron seeds, known medically as colchicum seeds, first bruising them, and directing the deceased's daughter to place the bottle before the fire for two hours, and then shake it up and give her mother a tablespoonful. The daughter gave her mother a tablespoonful on Monday, and she became ill and sick shortly after, and continued at short intervals vomiting and retching till she died exhausted on Wednesday. She died from gastritis, or inflammation of the stomach, which the medical men attributed to the over-dose of colchicum seeds. Two grains of colchicum seeds, in the form of tincture, was a dose; a teaspoonful of the mixture would contain eighteen grains, and a tablespoonful contained eighty grains. This was a highly poisonous and fatal dose. The heart of the deceased showed slight symptoms of fatty degeneration, and the administering colchicum to a person so diseased was malpractice, as it tended to depress and weaken the heart's action, and render it less able to keep up the circulation. Willes, J., "Every person who dealt with the health of others was dealing with their lives, and every person who so dealt was bound to use reasonable care, and not to be grossly ignorant. Gross negligence might be of two kinds in one sense, where a man, for instance, went hunting and neglected his patient, who died in consequence. Another sort of gross negligence consisted in rashness, where a person was not sufficiently skilled in dealing with dangerous medicines, which should be carefully used, of the properties of which he was ignorant, or how to administer a proper dose. A person who with ignorant rashness, and without skill in his profession, used such a dangerous medicine, acted with gross negligence. It was not, however, every slip that a man might make that rendered him liable to a criminal investigation. It must be a substantial thing. If a man knew that he was using medicines beyond his knowledge, and was meddling with things above his reach, that was culpable rashness. Negligence might consist in using medicines in the use of which care was required, and of the properties of which the person using them was ignorant. A person who so took a leap in the dark in the administration of medicines was guilty of gross negligence. If a man was wounded, and another applied to his wound something which was of a dangerous nature and ought not to be applied, and which led to fatal results, then the person who applied this remedy would be answerable, and not the person who inflicted the wound, because a new cause had supervened. But if the person who dressed the wound applied a proper remedy, then, if a fatal result ensued, he who inflicted the wound remained liable. He left it to the jury to say whether the deceased had died from natural causes, or from the supervening cause of the medicine prescribed for her by the prisoner, he being an irregular and apparently unskilled practitioner. If from the latter cause, had the prisoner prescribed this medicine, which was the cause of death, rashly in the sense he had explained."()

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 man

(i) Reg. v. Bull, 2 F. & F. 201.

(i) Reg. v. Markuss, 4 F. & F. 356.

slaughter 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 Rex v. Williamson,(k) was relied upon. Maule, J., refused to allow the witnesses to be examined, saying, "In Rex v. Williamson the witnesses were asked generally causâ scientia. Neither on the one hand nor the other can other cases be gone into. The attention of the jury must be confined to the present case." And in summing up the very 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 was guilty of culpable homicide; and the question for the jury was, whether the deceased had 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) 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 the provisions of a recent statute.(n)

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 *may. The prisoner was indicted for the murder of a child under ten, and it appeared that he had had connection [*700 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)

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

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 a 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 (k) Supra, p. 689.

(2) Reg. v. Whitehead, 3 C. & K. 202.

(m) 1 Hale 432. See Reg. v. Greenwood, infra, p. 700.

(n) 6 Geo. 4, c. 78, s. 17. Ante, p. 165, et seq.

(0) Rex v. Ladd, 1 Leach 96; 1 East P. 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) Reg. 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.

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

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