apposite to the case before us. Suppose, during the progress of the riot, in which it is alleged the prisoner was engaged, and while the soldiers and others in possession of the armory, were in the act of repelling the attack of the mob in the street, by firing upon it with the cannon which was used on the occasion, that it had burst by reason of some secret defect, and killed several of those who were in its immediate vicinity; or, that a soldier while handling his musket had by accident inflicted a mortal wound on himself; it would hardly be contended that in either of these cases the whole body of rioters could be held legally responsible for criminal homicide, by reason of the lives that were thus destroyed. And yet there is no real distinction between the cases supposed and that of the prisoner at the bar, if the rule insisted on by the attorney-general is a sound one. The taking of human life, under the circumstances supposed, in a certain sense was the result of the unlawful acts of the mob- that is, it would not have occurred, but for the riot which furnished the cause and occasion of the musket or

cannon.

Indeed, it seems to us that in every aspect the doctrine contended for, if followed to its legitimate and logical conclusion, would lead to extraordinary consequences. It would render everybody who participated in a transaction, whether acting in concert or in opposition, whether united in a common design or arrayed on opposite sides in a contest or affray in which each contending party was striving to defeat the purposes of the other, if all acted without legal justification, responsible for every criminal act which was done by any person during the progress of the affair in which they were all engaged. Nor, in applying the principle in question to a case like the one before us, can we see any good reason why the soldiers who defended the armory and resisted the mob, if it should turn out that they acted without sufficient legal authority to justify their acts, might not be held guilty of manslaughter for homicides committed by the rioters, if the latter are to be held responsible for deaths caused by the acts of the soldiers. But the rules of law do not give any countenance to such a doctrine. The real distinction is between acts which a man does either actually or constructively, by himself or his agents or confederates, and those which are done by others acting not in concert with him or to effect a common object, but without his knowledge or assent, either express or implied. For the former the law holds him strictly responsible, and for all their necessary and natural consequences, which he is rightfully deemed to have contemplated and intended. For the latter he is not liable, because they are not done by himself or by those with whom he is associated, and no design to commit them or intent to bring about

the results which flow from them can be reasonably imputed to him. So the rule of law was manifestly understood by the framers of the clause contained in the Revised Statutes,1 re-enacted in General Statutes,2 which provides that if any officer, magistrate or other person acting in the suppression of an unlawful assembly, tumult or riot is killed or wounded, all persons taking part in such violation of law shall be answerable therefor. This was clearly not intended as a limitation of the liability at common law, but only as declaratory of the rule as it then existed and was understood.

The case of the Philadelphia rioters, cited by the Attorney-General from the Appendix to Wharton's Law of Homicide,3 is obscurely and imperfectly reported. If it can be supported at all as a true exposition of law, it can only be upon the ground that both parties or sides had a common object in view, namely, a breach of the peace, and that both went out by an agreement, or mutual understanding to engage in an affray or riot. If such was the fact, then, as in the case of a duel, although to accomplish the common purpose they took opposite sides, still they might all well have been deemed to have confederated together in an unlawful enterprise, and thus to have become responsible, on the principle already stated, for a criminal act done in pursuance of the common design by any one of their confederates, with whichever side he may have acted in the affray.

It may properly be added that we can see no foundation in any aspect of the case for the distinction suggested by the Attorney-General as to the degree of homicide of which the defendant would be guilty, in the event the jury should find that the deceased was killed by a shot fired by the soldiers in the armory, and not by the mob. If the doctrine contended for is correct, there can be no valid reason for holding the defendant guilty of manslaughter only. If he, as one of the riotous conspirators, is liable at all for acts done by the soldiers and others cooperating with them, his guilt must be in the same degree as if a homicide was committed by one of the rioters with whom he was acting in concert. If it was his act at all, then it was committed by him or his confederates while engaged in an unlawful enterprise, and according to well settled principles, it would be murder and not manslaughter. for the reason already given, it can not be regarded as an act for which he is in law responsible. If the homicide was the result of a shot fired by the soldiers or other persons in the armory, acting together in defence against the riotous assembly, the defendant can not be held guilty of either murder or manslaughter. The jury will accordingly be in

But

structed that, unless they are satisfied beyond a reasonable doubt that, the deceased was killed by means of a gun or other deadly weapon in' the hands of the prisoner, or of one of the rioters with whom he was associated and acting, he is entitled to an acquittal.

The jury acquitted the prisoner.

ACCIDENT-MISTAKE OF PHYSICIAN CAUSING DEATH-RESPONSIBILITY.

COMMONWEALTH V. THOMPSON.

[6 Mass. 134.]

In the Supreme Judicial Court of Massachusetts, November Term, 1809.

One who Administers Medicine to Another ignorantly, but honestly intending to cure him, which causes his death, is not guilty of murder.

At the beginning of the term the prisoner, Thompson, was indicted for the willful murder of Ezra Lovett, Jr., by giving him a poison called lobelia on the ninth day of January last, of which he died on the next day. On the twentieth of December, at an adjournment of this term, the prisoner was tried for this offense, before the Chief Justice and the Judges SEWALL and PARKER.

On the trial it appeared in evidence that the prisoner some time in the preceding December came into Beverly, where the deceased then lived, announced himself as a physician, and professed an ability to cure all fevers, whether black, grey, green or yellow, declaring that the country was much imposed upon by physicians, who were all wrong, if he was right. He possessed several drugs which he used as medicines and to which he gave singular names. One he called coffee, another well-my-gristle, and a third ram-cats. He had several patients in Beverly and in Salem previous to Monday, the second day of January, when the deceased, having been for several days confined to his house by a cold, requested that the prisoner might be sent for as a physician. He accordingly came and ordered a large fire to be kindled to heat the room. He then placed the feet of the deceased, with his shoes off, and wrapped him in a thick blanket, covering his head. In this situation he gave him a powder in water, which immediately puked him. Three minutes after he repeated the dose, which in about two minutes operated violently. He again repeated the dose, which in a short time operated with more violence. These doses were all given within the space of half an hour, the patient in the meantime drinking copiously

of a warm decoction, called by the prisoner his coffee. The deceased, after puking, in which he brought up phlegm, but no food, was ordered to a warm bed, where he lay in a profuse sweat all night. Tuesday morning the deceased left his bed and appeared to be comfortable, complaining only of debility; and in the afternoon he was visited by the prisoner, who administered two more of his emetic powders in succession, which puked the deceased, who, during the operation, drank of the prisoner's coffee, and complained of much distress. On Wednesday morning the prisoner came, and after causing the face and hands of the deceased to be washed with rum, ordered him to walk in the air, which he did for about fifteen minutes. In the afternoon the prisoner gave him two more of his emetic powders with draughts of his coffee. On Thursday the deceased appeared to be comfortable, but complained of great debility. In the afternoon the prisoner caused him to be again sweated, by placing him with another patient over an iron pan with vinegar heated by hot stones put into the vinegar, covering them at the same time with blankets. On Friday and Saturday the prisoner did not visit the deceased, who appeared to be comfortable, although complaining of increased debility. On Sunday morning the debility increasing, the prisoner was sent for, and came in the afternoon, when he administered another of his emetic powders with his coffee, which puked the deceased, causing him much distress. On Monday he appeared comfortable, but with increasing weakness, until the evening, when the prisoner visited him and administered another of his emetic powders, and in about twenty minutes repeated the dose. This last dose did not operate. The prisoner then administered pearlash mixed with water, and afterwards repeated his emetic potions. The deceased appeared to be in great distress, and said he was dying. The prisoner then asked him how far the medicine had gone down. The deceased, laying his hand on his breast, answered "here," on which the prisoner observed that the medicine would soon get down and unscrew his naval, meaning, as was supposed by the hearers, that it would operate as a cathartic. Between nine and ten o'clock in the evening, the deceased lost his reason and was seized with convulsion fits, two men being required to hold him in bed. After he was thus seized with convulsions the prisoner got down his throat one or two doses more of his emetic powders, and remarked to the father of the deceased that his son had got the hyps like the devil, but that his medicines would fetch him down, meaning, as the witness understood, would compose him. The next morning the regular physicians of the town were sent for, but the patient was so completely exhausted that no relief could be given. The convulsions and the loss of reason continued, with some intervals, until Tuesday evening, when the deceased expired.

From the evidence it appeared that the coffee administered was a decoction of marsh-rosemary mixed with the bark of bayberry bush which was not supposed to have injured the deceased. But the powder which the prisoner said he chiefly relied upon in his practice, and which was the emetic so often administered by him to the deceased was the pulverized plant trivially called Indian tobacco. A Dr. French, of Salisbury, testified that this plant with this name, was well known in his part of the country, where it was indigenous, for its emetic qualities; and that it was gathered and preserved by some families to be used as an emetic, for which the roots as well as the stalks and leaves were administered; and that four grains of the powder was a powerful puke. But a more minute description of this plant was given by the Rev. Dr. Cutler. He testified that it was the lobelia inflata of Linnæus; that many years ago on a botanical ramble he discovered it growing in a field not far from his house in Hamilton; that not having Linnæus then in his possession he supposed it to be a nondescript species of the lobelia; that by chewing a leaf of it he was puked two or three times; that he afterwards repeated the experiment with the same effect; that he inquired of his neighbor on whose ground the plant was found, for its trivial name. He did not know of any, but was apprized of its emetic quality and informed the doctor that the chewing of one of the capsules operated as an emetic and that the chewing more would prove cathartic. In a paper soon after communicated by the doctor to the American Academy, he mentioned the plant with the name of the lobelia medica. He did not know of its being applied to any medical use until the last September when, being severely afflicted with the asthma, Doctor Drury of Marblehead, informed him that a tincture of it had been found beneficial in asthmatic complaints. Dr. C. then made for himself a tincture by filling a common porter bottle with the plant, pouring upon it as much spirit as the bottle would hold, and keeping the bottle in a sand heat for three or four days. Of this tincture he took a tablespoonful which produced no nausea, and had a slight purgent taste. In ten minutes after he repeated the potion which produced some nausea and appeared to stimulate the whole internal surface of the stomach. In ten minutes he again repeated the potion which puked him two or three times and excited in his extremities a strong sensation like irritation; but he was relieved from a paroxysm of the asthma which had not since returned. He had since mentioned this tincture to some physicians and has understood from them that some patients have been violently puked by a teaspoonful of it; but whether this difference of effect arose from the state of the patient or from the manner of preparing the tincture, he did not know.

The solicitor-general also stated that before the deceased had applied