(c) Careless Handling of Deadly Weapons, Poisons, and Other Agencies.-A man may also be guilty of manslaughter because of carelessness in the handling of a deadly weapon. It is perfectly lawful to shoot at a mark in the absence of statutory prohibition; yet, if a man negligently takes such a position that the bullets must go in the direction of a habitation, he will be guilty of manslaughter if they happen to kill a person. And the same is true in any other case of culpable negligence in handling a deadly weapon.397 The principle also applies to negligence in handling poisons and other dangerous drugs.398

396

no common law crimes in that state, and no statute had declared gross negligence a crime, a homicide committed by negligently riding a man down with a bicycle could not be manslaughter under a statute punishing homicide in the commission of an "unlawful act." Johnson v. State, 66 Ohio St. 59, 63 N. E. 607, 90 Am. St. Rep. 564. In this case the court failed to take into consideration the fact that many acts are "unlawful" that are not crimes, either at the common law or under statutes. See 90 Am. St. Rep. 571, note.

396 Reg. v. Salmon, 14 Cox, C. C. 494, Beale's Cas. 189; Reg. v. Hutchinson, 9 Cox, C. C. 555.

397 In State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496, the accused, for the purpose of frightening a woman, snapped a pistol at her, and it went off, and killed her. The weapon had been in the house for five years, and unsuccessful attempts had repeatedly been made to fire it off, and it was clear from the evidence that the accused did not think it would go off. He was convicted of manslaughter, however, and the conviction was sustained on the ground that he was guilty of gross negligence. See, also, Rampton's Case, J. Kelyng, 41; People v. Fuller, 2 Park. Cr. R. (N. Y.) 16; Reg. v. Campbell, 11 Cox, C. C. 323; Reg. v. Jones, 12 Cox, C. C. 628; Sparks v. Com., 3 Bush (Ky.) 111, 96 Am. Dec. 196; People v. Stubenvoll, 62 Mich. 329, 28 N. W. 883; State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Roane, 2 Dev. (N. C.) 58; State v. Vines, 93 N. C. 493, 53 Am. Rep. 466; Robertson v. State, 2 Lea (Tenn.) 239, 31 Am. Rep. 602; State v. Vance, 17 Iowa, 138; People v. Fuller, 2 Park. Cr. R. (N. Y.) 16.

398 Reg. v. Crook, 1 Fost. & F. 521; Reg. v. Markuss, 4 Fost. & F. 356; Reg. v. Gaylor, Dears. & B. C. C. 288, 7 Cox, C. C. 253; Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561; State v. Center, 35 Vt. 378.

A person causing the death of a child by giving it spirituous liquors in a quantity unfit for its tender age is guilty of manslaughter. Rex v. Martin, 3 Car. & P. 211.

A building contractor is guilty of manslaughter if, by using poor and defective materials, he constructs a building in such a manner as to render it dangerous, and it collapses because of such negligence on his part, and causes a death.399

(d) Negligence of Physicians and Surgeons.—If a physician or surgeon honestly and in good faith performs an operation, or administers a drug, and the patient dies therefrom, he is not guilty of manslaughter, merely because he made a mistake, or did not have sufficient skill.400 But if the death was due to gross negligence, inattention, or ignorance, he is guilty.401 By the weight of authority, the same rules apply to one who assumes to act as a physician or surgeon without being regularly licensed. 402 265. Nonfeasance.

(a) In General.-The unintentional killing of another by omission to perform a legal duty owing to him, under circumstances showing inexcusable negligence, or failure to exercise reasonable diligence, is manslaughter.403 Whether a homicide

399 People v. Buddensieck, 103 N. Y. 487, 9 N. E. 44, 57 Am. Rep. 766. 400 1 Hale, P. C. 428; 4 Bl. Comm. 197; Reg. v. Chamberlain, 10 Cox, C. C. 486, Beale's Cas. 187; Reg. v. Spencer, 10 Cox, C. C. 525; Rex v. Williamson, 3 Car. & P. 635; Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Long, 4 Car. & P. 398; Reg. v. Macleod, 12 Cox, C. C. 534, Mikell's Cas. 220; Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561; post, § 274.

401 Rex v. Long, 4 Car. & P. 423; Rex v. Spiller, 5 Car. & P. 333; Reg. v. Chamberlain, 10 Cox, C. C. 486, Beale's Cas. 187; Reg. v. Macleod, 12 Cox, C. C. 534, Mikell's Cas. 220; Reg. v. Spilling, 2 Mood. & R. 107; Reg. v. Spencer, 10 Cox, C. C. 525; State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264. See, also, Rex v. Senior, 1 Mood. C. C. 346; Reg. v. Markuss, 4 Fost. & F. 356; Reg. v. Crook, 1 Fost. & F. 521; Mirror of Justices (Sel. Soc.) c. 15, Mikell's Cas. 215.

4021 Hale, P. C. 429; Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Long, 4 Car. & P. 398, 423; Reg. v. Chamberlain, 10 Cox, C. C. 486, Beale's Cas. 187. And see the cases cited in the notes preceding.

403 Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170; Reg. v. Lowe, 3 Car. & K. 123, Beale's Cas. 192; Reg. v. Hughes, 7 Cox, C. C. 301.

The captain of a vessel is guilty of manslaughter, at least, if he neg

by mere nonfeasance, or omission to perform a duty, is murder or manslaughter, depends upon whether the omission was willful or not. If it was not willful, but due to gross negligence, the homicide is manslaughter; but if it was willful, and the natural consequence was to cause death, the homicide is murder. 404 Whether such a homicide is manslaughter or excusable homicide depends upon whether the omission was due to gross negligence. If the negligence was not gross under the circumstances, the homicide is excusable. 405

(b)Negligence of Persons in Charge of Railroad Trains, Machinery, Appliances, etc.—The above principle has repeatedly been applied to persons in charge of railroad trains and steamboats, and other persons charged with duties in connection therewith, or with other kinds of machinery and appliances. In the case of a collision between railroad trains, and the death of a passenger or employe of the company caused by the negligence of the engineer or of a switchman or train dispatcher, if his omission was willful, and, a fortiori, if he actually intended the collision, he is guilty of murder. If the omission was not due to gross negligence or inattention, the homicide is excusable as an accident. If it was due to gross negligence or inattention, it is manslaughter.406

ligently fails to stop the vessel, and lower a boat, so as to rescue a seaman who has fallen overboard. U. S. v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540.

406 State v. O'Brien, 32 N. J. Law, 169, Mikell's Cas. 218; Reg. v. Pargeter, 3 Cox, C. C. 191; State v. Dorsey, 118 Ind. 167, 20 N. E. 777, 10 Am. St. Rep. 111.

A person in charge of a steamboat was held guilty of manslaughter where death was caused by his leaving the boat in the charge of a person who was incompetent. Reg. v. Lowe, 3 Car. & K. 123, 4 Cox, C. C. 449. But there must, in such case, be some act done by the captain to make him liable; mere omission to act is not enough. Rex v. Green, 7 Car. & P. 156; Rex v. Allen, 7 Car. & P. 153.

Failure of the officers of a vessel, or of an employe on a street car, to

(c) Negligence in Connection with Mines.-The same principle applies when a mine owner or a superintendent or employe in a mine, charged with the duty of ventilating the mine, or of attending the engine for drawing up the miners, fails to properly perform his duty, and thereby causes the death of a miner. If his neglect was due to failure to exercise reasonable diligence, he is guilty of manslaughter."

407

(d) Neglect of Children and other Dependent Persons.— The doctrine under consideration has repeatedly been applied in case of the death of a child or other helpless person, caused by the neglect of those charged with his custody and care. It is well settled that if a parent, being able, fails through culpable negligence to provide food, shelter, medical attendance and other necessaries for his dependent child, and thereby causes the child's death, he is guilty of manslaughter at least.408 If the omission is willful, he is guilty of murder. 409 The same principle applies if a husband, by such neglect, causes the death of a sick and helpless wife,410 or in any other case in which a person has undertaken, whether for a compensation or not, to attend and care for one who is helpless.411

keep a lookout, will render them guilty of manslaughter if death is caused thereby. Reg. v. Lowe, supra; Reg. v. Spence, 1 Cox, C. C. 352; Com. v. Metropolitan R. Co., 107 Mass. 236.

407 Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170; Reg. v. Lowe, 3 Car. & K. 123, Beale's Cas. 192.

Failure of employe in a mine to plank up a shaft, when he is charged with this duty, will render him guilty of manslaughter if death is caused thereby. Reg. v. Hughes, 7 Cox, C. C. 301.

408 Reg. v. Conde, 10 Cox, C. C. 547, Beale's Cas. 424; Reg. v. Downes, 13 Cox, C. C. 111, Beale's Cas. 195; Reg. v. Senior, 19 Cox, C. C. 219, Mikell's Cas. 143; Gibson v. Com., 106 Ky. 360, 50 S. W. 532, 90 Am. St. Rep. 230. See Rex v. Friend, Russ. & R. 20, Beale's Cas. 190.

Omission to call in a physician from religious and conscientious scruples is elsewhere considered. See ante, § 65.

409 Ante, § 247.

410 Reg. v. Plummer, 1 Car. & K. 600; State v. Smith, 65 Me. 257.

411 Reg. v. Instan [1893] 1 Q. B. 450, 17 Cox, C. C. 602, Beale's Cas.

Inability to provide the necessary food, medical attendance, etc., is a sufficient excuse.412 But such a case must be reported to the public authorities, if there are poor laws providing for public aid to sick or helpless paupers.413

There is no liability if the person neglected, whether wife, child, servant, or stranger, is able to help himself, and avoid the consequences of the neglect.414

(e) There must be a Duty to Act.—To render one responsible for a homicide because of mere nonfeasance, he must have omitted some legal duty which he owed to deceased. Failure to perform acts of mercy or mere moral obligations is not enough.415 For a stranger to neglect to give warning so as to prevent a collision between railroad trains, or to prevent a man from taking poison, or for him to fail to rescue a drowning person or feed a starving child, would not render him guilty of manslaughter, for he is only under a moral obligation to interfere in such cases, and the law does not undertake to punish for failure to perform moral obligations. There must have been a legal duty, and it must have been owing to the deceased.416

198; Reg. v. Nicholls, 13 Cox, C. C. 75, Beale's Cas. 193; Reg. v. Marriott, 8 Car. & P. 425, Mikell's Cas. 229.

"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 for the neglect of that duty, 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." Steph. Dig. Crim. Law, art. 213.

412 Reg. v. Hogan, 2 Den. C. C. 277, 5 Cox, C. C. 255; Reg. v. Philpott, 6 Cox, C. C. 140.

413 Reg. v. Mabbett, 5 Cox, C. C. 339.

414 Rex v. Friend, Russ. & R. 20; Reg. v. Shepherd, Leigh & C. 147, 9 Cox, C. C. 123, Mikell's Cas. 223; Reg. v. Waters, 2 Car. & K. 864, 1 Den. C. C. 356; Reg. v. Smith, Leigh & C. 607, 10 Cox, C. C. 82.

4151 Whart. Crim. Law, §§ 329, 330; Connaughty v. State, 1 Wis. 159; Burrell v. State, 18 Tex. 713.

416 In Reg. v. Smith, 11 Cox, C. C. 210, Beale's Cas. 192, the accused