through ignorance of the quality of the medicine prescribed, or of the nature of the disease, or both, the patient die in consequence of the treatment, contrary to the expectation of the person prescribing, he is not guilty of murder or manslaughter; but if the party prescribing have so much knowledge of the fatal tendency of the prescription, that it may reasonably be presumed that he administered the medicine from an obstinate willful rashness, and not with an honest intention and expectation of effecting a cure, he is guilty of manslaughter at heart, though he might not have intended any bodily harm to the patient.

It is not lawful for a man to administer a medicine of the dangerous effects of which he has had fatal experience.1

2

Lord Coke, in his fourth Institute, says: "If one that is of the mystery of a physician takes upon him the cure of a man, and giveth him such medicine as he dieth thereof, without any felonious intent and against his will, it is no homicide." "But," he continues, "Briton saith that if one that is not of the mystery of a physician undertakes the cure of a man and he dieth of the potion or medicine, that is covert felony." But the soundness of this distinction between licensed and unlicensed physicians has been denied by very high authority upon the ground that physics and salves were in use before licensed physicians and surgeons existed. Blackstone coincides in opinion with Hale, and rejects the distinction between licensed and unlicensed physicians, and maintains the doctrine that if a physician or surgeon gives his patient a potion or plaster to cure him, which, contrary to his expectation, kills him, that is neither murder nor manslaughter, but misadventure. The distinction between licensed and unlicensed physicians can have no existence in this State, as there are no licensed physicians or surgeons. Although a physician can not be indicted for murder or manslaughter, if a patient dies under his prescriptions where his intentions were honest, yet it has been held that mala praxis is a great misdemeanor and an offense at common law, whether it be for curiosity or experiment, or by neglect. The form of the indictment may be found in 3 Chitty's Criminal Law," from which it may be gathered what constitutes the ingredients of that offense. The form there given, which is only an example, is substantially, that a midwife intending to deceive and impose upon others, under pretense that she was well skilled in the art of midwifery, caused herself to be employed as a midwife, and did so unlawfully, wickedly, ignorantly, rashly, injuriously, unskillfully, improperly and contrary to good practice in her art, deliver a pregnant woman, that she died. This may seem contrary to what has been before said relative to the legality of one prescribing for another with his own consent; but however this may be, the law seems to be well settled, as has been above stated. There is no pretense that the defendant, Rice, acted from any other than honest motives. The chief witness against him, and he from whom we would most naturally look for the imputation of impure motives, if any existed, expressly declared that he believed that Rice's intentions were good, and that he wished to cure his wife. Nor is there any evidence that the defendant had any knowledge or information of the fatal tendency of his prescriptions; so far from anything of this kind, the evidence leaves it doubtful whether his practice was unskillful or not. It seems he was a practitioner under the botanic

system, and exercised his profession with as much skill and success, if not more, than most who had adopted it. The instruction, then, should have been given, and the motion in arrest sustained. The other judges concurring, the judgment of the court below is reversed.

In State v. Schulz,1 the defendant was indicted for murder in the second degree, committed, as was alleged, upon one Mary Rayer, whilst pretending to cure her of some disease. He was convicted of manslaughter, fined $100, and sentenced to the penitentiary for one year.

DAY, J., in reversing the conviction in the Supreme Court delivered the following opinion of the court: The only testimony which bears directly upon the circumstances of the death of Mary Rayer, and the defendant's connection with it, is that of the deceased's husband, and is as follows: "Mary died on the 26th of May last; was taken sick two weeks before she died. Called in Dr. Kinthan. Went to get Dr. Schulz on 23d of May. Schulz said she was pretty badly off; used his instrument all over her body. At about 12 o'clock on Tuesday he gave her something to loosen her bowels from the same vial he was using on her body; gave her eight drops; called it some kind of croton oil. She got worse. Went for Dr. Schulz to tell him. He gave me some drops, and told me to give her fourteen drops. I did not give her fourteen drops; I thought it was too much. Schulz came out that night and stayed until nearly two o'clock. On Wednesday morning I told him not to call again. He answered that it would be better for him to go and see her. Mary died on Wednesday night." A post mortem examination was made. The examining physicians testify that they found no traces of poison. The defendant on his own behalf testified as follows: "Am a Baunscheidist, and practice medicine according to the books of Baunscheidt. Use an instrument and oleum Baunscheidtii in my practice. Was called on to treat Mrs. Mary Rayer. I treated Mrs. Rayer according to my system, with instrument and oleum Baunscheidtii. On Tuesday I gave her four drops of the oleum internally. She was getting better under my treatment. On Wednesday morning Mr. Rayer came to my house, and told me I need not call that morning. I told him she must have assistance, because her symptoms were very dangerous. He said that he had no other physician, and that he would come back to me. Do not know what the oleum Baunscheditii is made of. It is a secret of the inventor. I could have helped her, I think, if my instruction had been followed, and if I had been allowed to go on with my treatment." The defendant introduced twenty-three witnesses, who testified that they employed defendant as a physician; that he treated them with his instrument and his oleum Baunscheidtii, and administered the oil internally, and that they got better. The abstract contains no evidence of any former bad results. The court instructed the jury as follows: "(12.) An express intent to take life is necessary to constitute the crime of murder under the statute law of this State; and if one holds himself out as practicing physician, or a specialist in the treatment of diseases, and through the gross ignorance of the medicine he uses, and its composition, and its reasonable effects upon the human system, administers an irritant or corrosive poison in such quantities as would ordinarily and reasonably produce death, and death ensues therefrom, he would be guilty of the crime of murder. In such case the law presumes malice, and ignorance would be no excuse; nor would the fact, if such existed, that the intention was to cure. The gross

1 13 Cent. L. J. 188 (Iowa, 1881).

ignorance in such cases creates the criminal intention. (13.) A party, whether he be a physician or a specialist, has no right to hold himself out to the public as competent to treat diseases, unless he knows what the medicine is he uses, and its reasonable effect upon the human system; and to do so, and administer internally poisonous medicines, in sufficient quantities to ordinarily produce death, and death is produced thereby, he would be guilty of murder; and if the defendant in this case, through gross ignorance of the medicine used, or its reasonable effect upon the deceased, as she was at the time, caused her death by an overdose of poisonous medicine, he would be guilty as charged; but if he was not grossly ignorant of the medicine he used, if any, and its reasonable effect upon the system, and administered it for an honest purpose, but made a mistake, he would not be guilty of the crime charged against him, and should be acquitted." The defendant asked the court to instruct as follows: "To constitute manslaughter, the killing must have been the consequence of some unlawful act, and if the prisoner acted with an honest intention and expectation of curing the deceased by his treatment, although death, unexpected by him, was the consequence, he was not guilty of manslaughter, and you must acquit him." In our opinion the court erred in the instructions given, and in refusing to give the one asked. In 2 Bishop's Criminal Law 1 the law upon this subject is declared as follows: "From the relationship of physician and patient the death of the latter not unfrequently arises. On this subject the doctrine seems to have been held that whenever one undertakes to cure another of disease, or to perform on him a surgical operation, he renders himself thereby liable to the criminal law if he does not carry to his duty some degree of skill, though what degree may not be clear; consequently, if the patient dies through his ill-treatment, he is indictable for manslaughter. On the other hand, a more humane doctrine is laid down, that since it is lawful and commendable for one to cure another, if he undertakes this office in good faith, and adopts the treatment he deems best, he is not liable to be adjudged a felon, though the treatment should be erroneous, and in the eyes of those who assume to know all about this subject, which, in truth, is understood by no mortal, grossly wrong; and though he is a person called, by those who deem themselves wise, grossly ignorant of medicine and surgery. The former doctrine seems to be the English one, and so in England a person, whether a licensed medical practitioner or not, who undertakes to deal with the life or health of people, is bound to have competent skill, or suffer criminally for the defect. Now, if a man thinks he has competent skill and makes no misrepresentation to his patients concerning the amount or kind of medical education actually received by himself, he seems in reason to stand on exactly the foundation occupied by every person who honestly undertakes medical practice after full advantages, so far as concerns his state of mind, and it is the mind to which we look in questions of legal guilt. Any person undertaking a cure, but being grossly careless and thus producing death, is, for a different reason, liable to a charge of manslaughter, whether he is a licensed practitioner or not." The case of Commonwealth v. Thompson,2 is a very interesting and instructive one upon this question. From the testimony in that case it appears that the defendant was a grossly ignorant quack. He had three remedies which he called coffee, well-my-gristle and ramcats. He persisted in administering emetics to his patient until he died, to all appearances, from the effects of his treatment. In this case it was held that

1 (4th ed). sec. 695.

26 Mass. 134.

"if one assuming the character of a physician, through ignorance, administer medicine to his patient, with an honest intention and expectation of a cure, but which causes the death of the patient, he is not guilty of felonious homicide." The case of Rice v. State,1is much like the preceding. The defendant in that case was a botanical physician, and administered lobelia, from the effects of which the patient died. It was held that "if a person assume to act as a physician, however ignorant of medical science, and prescribe with an honest intention of curing the patient, but through ignorance of the quality of the medicines prescribed, or the nature of the disease, or both, the patient die in consequence of the treatment, contrary to the expectation of the person prescribing, he is not guilty of murder or manslaughter. But if the party prescribing have so much knowledge of the fatal tendency of the prescription, that it may be reasonably presumed that he administered the medicine from an obstinate, willful rashness, and not with an honest intention and expectation of effecting a cure, he is guilty of manslaughter, at least, though he might not have intended any bodily harm." These cases seem to us to announce a correct rule. The interests of society will be subserved by holding a physician civilly liable in damages for the consequences of his ignorance, without imposing upon him the criminal liability when he acts with good motives and honest intentions. Reversed.

$146. Medical Attendant in Asylum. — In R. v. Finney,2 the prisoner was indicted for the manslaughter of Thomas Watkins. The prisoner was an attendant at a lunatic asylum. Being in charge of a lunatic who was bathing he turned on the hot water into the bath and thereby scalded him to death. The facts appeared to be truly set forth in the statement of the prisoner made before the committing magistrate, as follows: "I had bathed Watkins, and had loosed the bath out. I intended putting in a clean bath, and asked Williams if he would get out. At this time my attention was drawn to the next bath by the new attendant; he was asking me a question and my attention was taken from the bath where Watkins was. I put my hand down to turn water on in the bath where Thomas Watkins was. I did not intend to turn the hot water, and I made a mistake in the tap. I did not know what I had done until I heard Thomas Watkins shout out, and I did not find my mistake out till I saw the steam from the water. There is one time you can not get water in the bath. When they are drawing water at the other bath, and at other times it shoots out like a water gun when the other baths are not in use."

(It was proved that the lunatic had such possession of his faculties as would enable him to understand what was said to him and to get out of the bath.)

S. Young. The death resulted from accident. There was no such culpable negligence on the part of the prisoner as will support this indictment. A culpable mistake, and some degree of culpable negligence, causing death, will not support a charge of manslaughter, unless the negligence be so gross as to be reckless."

LUSH, J., to the jury. To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. If you accept the prisoner's own statement, you find no such amount of negligence as would come within this definition. It is not every little trip or mistake that will make a man so liable. It was the duty of the attendant not

18 Mo. 561.

2 12 Cox, 625 (1874).

3 R. v. Noakes, 4 F. & F. 920, cited in Archbold's Cr. Pl. (17th ed.) 640.

to let water into the bath while the patient was therein. According to the prisoner's own account, he did not believe that he was letting the hot water in while the deceased remained there, the lunatic was, we have heard, a man capable of getting out by himself and of understanding what was said to him. He was told to get out. A new attendant who had come on this day, was at an adjoining bath and he took off the prisoner's attention. (His Lordship, then read the statement.) Now, if the prisoner seeing that the man was in the bath, had knowingly turned on the tap and turned on the hot instead of the cold water, I should have said there was gross negligence, for he ought to have looked to see, but from his own account he had told the deceased to get out and thought he had got out. If you think that indicates gross carelessness, you should find the prisoner guilty of manslaughter; but if you think it inadvertence not amounting to culpability, or what is properly termed an accident, then the prisoner is not liable.

Verdict, not guilty.

§ 147. - Mistake of Chemist in Delivering Medicine. — In R. v. Noakes, 1 the prisoner was indicted for the manslaughter of one Samuel Boys. The prisoner was a chemist and druggist, and the deceased dealt with him for drugs, and had been accustomed for many years to send to him for aconite which is a deadly poison-as a linament. The prisoner was in the habit of using bottles of a particular make and color to contain poison; but on this occasion the deceased had sent his own bottles. He had been ordered to take thirty drops of henbane, and also to use aconite as a linament, and he had sent two bottles to the prisoner, one for the aconite and the other for the henbane. The bottle for the henbane (both bottles being of the ordinary kind) had on it a label bearing that word, and also in smaller letters, "30 drops at a time," which for aconite would be a deadly dose taken internally. The prisoner himself filled the bottles, and through some mistake put the aconite into the henbane bottle. The deceased took a dose of it, and it proved almost instantly fatal, with symptoms of poisoning by aconite. ERLE, C. J., strongly put it to the jury that they ought not to call upon the prisoner for his defence; and that the case was not sufficiently strong to warrant them in finding the prisoner guilty on a charge of felony. They could not, he said, convict on such a charge, unless there was such a degree of complete negligence as the law meant by the word felonious. Now, no doubt, there ought to be due care and caution in the dispensing of deadly drugs; but this was the case of a chemist put out of his ordinary course by the customer sending bottles of his own. And though, no doubt, there was negligence in not observing the label on the bottle, on the other hand, it was the case of a customer who had for years been sending for aconite, and only rarely for henbane. Without saying that there might not be evidence of negligence in a civil action, he did not think that there was sufficient to support a conviction in a criminal case.

Verdict, not guilty

§ 149. Accident in Highway-Driver of Conveyance. If the driver of a conveyance use reasonable care and diligence, and an accident happen through some chance which he could not foresee or avoid he is not criminally liable.2 In R. v. Mastin, A. and B. were riding very fast along a highway, as if racing.

14 F. & F. 921 (1866).

2 R. v. Murray, 5 Cox, 509 (1852).

3 6 C. & P. 393 (1834).