Manslaughter-Omission of Trustees of Road to Repair - Accident. - Trustees of a road are not criminally punishable as for manslaughter for neglecting to repair a public road whereby a traveler is killed.

A coroner's inquest alleged that the defendants were trustees of a road under an act of Parliament; that it was their duty to contract for the due reparation of the said road; that they feloniously did neglect and omit to contract for the repair of the same, whereby it became very miry, ruinous, deep, broken, and in great decay; and that a cart, which the deceased was driving along the road, fell into a hole in the road, and by reason thereof the deceased was thrown out, and sustained the injuries of which he died.

Charnock showed cause. This case is not distinguishable from those of persons who have the charge of machinery at mines, of signals, or locomotives on railways, and the like; and there are many precedents of indictments for manslaughter in such cases where death has been occasioned by a neglect of duty on the part of the persons so intrusted.1 Here a public duty was cast upon the trustees, and they were authorized to raise money by rates for the purpose; and if their neglect of duty has caused the death of another, they are guilty of manslaughter. Hayes, contra, was not called upon.

LORD CAMPBELL, C. J. The cases cited show a personal duty, the neglect of which has directly caused death; and no doubt, when that is the case, a conviction of manslaughter is right. But how do those apply to trustees of a highway? How can it be said that their omission to raise a rate, or to contract for the reparation of the road directly causes the death? If so, the surveyors, or the inhabitants of the parish would be equally guilty of manslaughter, for the law casts upon them the duty of keeping the roads in repair. To uphold this inquisition would be to extend the criminal law in a most alarming manner, for which there is no principle or precedent.

PATTESON, J. This is really too extravagant.

WIGHTMAN, J., concurred.

ERLE, J. In all the cases of indictment for manslaughter, when the death has been occasioned by omission to discharge a duty, it will

1 R. v. Barret, 2 Car. & K. 343; R. v. Haines, Ib. 368; R. v. Gregory, 5 B. & Ad. 555. 1 DEFENCES.

53

be found that the duty was one connected with life, so that the ordinary consequence of neglecting it would be death. Such are the cases of machinery at mines, of engine drivers, or the omission to supply food to helpless infants.

Inquisition quashed.

ABORTION-OMISSION TO PREVENT-SUPPLYING DANGEROUS DRUG. R. v. FRETWELL.

[9 Cox, 152.]

In the English Court of Criminal Appeal, 1862.

The Deceased Woman Became pregnant by the prisoner, and died from the effects of corrosive sublimate taken by her for the purpose of producing abortion. The prisoner knowingly procured it for the deceased, at her instigation, and under the influence of threats of self-destruction if the means of producing abortion were not supplied to her. The jury negatived the fact of the prisoner having administered it, or caused it to be taken by her. Held, that the prisoner was not guilty of murder as an accessory before the fact.

CASE reserved for the opinion of this Court by COCKBURN, C. J.

Francis Fretwell was indicted and tried before me, at the last assizes for the County of Nottingham, for the willful murder of Elizabeth Bradley. The deceased had died from the effects of corrosive sublimate taken for the purpose of producing abortion. The poison had been procured for her by the prisoner with full knowledge of the purpose to which it was to be applied; but there was ground for believing that the poisoner in procuring the poison had acted at the instigation of the deceased, and under the influence of threats by her of self-destruction if the means of producing abortion were not supplied to her.

She was a married woman, living in service separately from her husband, and had become pregnant by the prisoner. She had endeavored to purchase corrosive sublimate herself, but the druggists to whom she had applied having refused to furnish it to her, she had urged the prisoner to procure it. The prisoner was not present when the poison was

taken.

The facts in question occurred in the month of July, 1861, anterior to the coming into operation of the 24 and 25 Victoria.1

The jury, upon questions specially put to them by me upon the evidence, expressly negatived the fact of the prisoner having administered the poison to the deceased, or caused it to be taken by her. They found

1 ch. 94.

specially that the prisoner procured the poison, and delivered it to the deceased with a knowledge of the purpose to which she intended to apply it, and that he was, therefore, accessory before the fact to her taking poison for the purpose of producing abortion.

Upon this finding I directed the jury to find a verdict of willful murder against the prisoner, reserving for the consideration and decision of the Court of Criminal Appeal whether such verdict was right in point of law.

In giving such directions I acted in deference to the authority of the case of Regina v. Russell,1 but it appearing to me doubtful how far the ruling of the judges in that case, that if poison be taken by a woman to produce abortion, and death ensues, the woman is felo de se, could be upheld; and still more so how far a man, accessory to the misdemeanor of a woman in taking poison for the purpose of producing abortion, can properly be held to be accessory to the self-murder of the woman, if contrary to the intention of the parties, death should be the consequence, I have reserved these points for the consideration of the

court.

A further question arises as to the admissibility of the depositions of the deceased, upon which the case against the prisoner mainly depended. The evidence having been taken on a charge against the prisoner of having administered, or caused to be taken, poison, in order to procure abortion, it was objected that the depositions were not admissible on the present charge as being substantially different from the one in which the evidence had been taken.

I was disposed to think, the transactions being the same, the evidence was admissible, although, in consequence of the death of the woman having supervened, the charge had assumed a different shape and character. I, however, reserved this question also for the consideration of the court.

A. E. COCKBURN

No counsel appeared to argue on either side in this case. The following is an abstract of the case of Rex v. Russell, cited above: "Russell was tried on an indictment which charged Sarah Wormesley with murdering herself with arsenic, and Russell with inciting her to commit the said murder. It appeared that Wormesley, who was about four months advanced in pregnancy, but not quick with child, died from taking arsenic, which she had received from Russell, for the purpose of producing a miscarriage, and that she knowingly took it with intent to procure a miscarriage in the absence of Russell. It was objected that there was no evidence to prove that she was felo de se; that the 9 George IV.,2 did not apply to a woman administering poison to herself; and that, assuming her to have taken arsenic knowingly, and

1 1 Moo. C. C. 356.

2 ch. 31, sec. 13.

with intent to procure a miscarriage, she was not guilty of any offense; and, consequently, if there were no principal there could be no accessory. Secondly, that the 7 George IV.1 did not apply to the case of a principal who was felo de se. Upon a case reserved, it was held that she was felo de se; that Russell was an accessory before the fact, but that he could not be tried as an accessory under the 7 George IV.,2 as he could not have been tried at all before that statute, which was to be considered as extending to those persons only who before the statute were triable either with or after the principal, and not to make those triable who before never could have been tried."

ERLE, C. J. The prisoner was convicted of murder, and the question is, whether upon the facts, he was properly convicted. The deceased, Elizabeth Bradley, was pregnant, and took a dose of sublimate for the purpose of producing abortion. The sublimate had been procured for her by the prisoner, with the full knowledge of the purpose for which it was to be applied. The prisoner in procuring the poison had acted at the instigation of the deceased, and under the influence of threats of self-destruction if the means to procure abortion were not supplied to Then the case sets out the motives which induced the woman to

her.

be so desirous of preventing her state being known. The jury negatived the fact of the prisoner having administered the poison to the deceased, or caused it to be taken by her; but said that he had delivered it to her with the knowledge of the purpose to which she intended to apply it, and so they were directed that he was a principal in the murder. Cockburn, C. J., reserved the case, holding the party to be guilty of murder by reason of the decision in the case of Rex v. Russell, but the facts of the present case appear to me to differ materially from the facts in that case, where the prisoner, finding the woman to be pregnant, procured arsenic for the purpose of procuring abortion, and himself administered arsenic to her, she taking it without a knowl edge of what it was, but taking it for the purpose of procuring abortion, and it caused her death. The judges held that it was a dangerous misdemeanor in her to take a drug for the purpose of procuring abortion, but a statute had recently passed to meet such a case. It had been held to be a dangerous misdemeanor to take a drug, and if in the perpetration of a dangerous misdemeanor death ensued, the party was guilty of murder for that death, and the woman had been held by a majority of the judges to have been guilty of murder felo de se, and Russell was an accessory to the murder by administering the arsenic with intent to procure abortion. Now, in the present case there appears to me a very marked distinction between the conduct of the prisoner

1 ch. 64, sec. 9.

2 ch. 64, sec. 9.

31 Moo. C. C. 356.

Fretwell and the conduct of the prisoner Russell. In Russell's Case the prisoner administered the poison. In the present case the prisoner was unwilling that the deceased should take the poison; it was at her instigation and under the threat of self-destruction that he procured it and supplied it to her; but it was found that he did not administer it to her or cause her to take it. It would be consistent with the facts of the case that he hoped she would change her mind; and it might well be that the prisoner hoped and expected that she would not resort to it. There is a material distinction between the two cases. The court do not think it necessary to lay down the law whether the person taking it would be guilty of felo de se. I am the more fortified in this decision by looking at the late statute 24 and 25 Victoria,1 which contains some important provisions, and has defined the crime both of the woman taking the poison and the party procuring it and causing her to take it. The late statute has made the party who procures the drug guilty of a misdemeanor, but made it a totally different kind of crime to the administering. In my opinion the prisoner was not guilty of murder, and the conviction must be reversed.

MARTIN, B., thought the conduct of the prisoner was too remote to make him guilty of murder.

CHANNELL, B., concurred in the judgment as given by ERLE, C. J. BLACKBURN, J., also concurred. According to the finding of the jury the prisoner did not cause the poison to be administered, and was not a party to it in such a way as to make it amount to murder. KEATING, J., was of the same opinion.

Conviction reversed.

NOTES.

§ 273. Omissions not Indictable where no Duty. - Where there is no duty imposed upon a person by law or by contract to do a certain act or acts, his omission to do such act, though it result in loss of life, limb, or property, is not criminally punishable. And "when a public law imposes a public duty upon a single person or a number of persons, the omission to perform the duty is indictable, but if it is not an absolute duty, but a conditional one, dependent upon the honest exercise of the judgment of the body to whom it is intrusted whether it is to be performed or not, the omission to perform it, per se, is not an indictable offense." 2

§ 274. Brother not Obliged to Provide for Brother. Therefore one is not indictable who omits or refuses to provide a helpless brother with food or warmth whereby he becomes ill or even dies.3

1 ch. 100, secs. 58, 59.

3 R. v. Smith, 2 C. & P. 449 (1826).

2 State v. Williams, 12 Ired. (L.) 172 (1851).