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was clearly no evidence which ought to have been left to the jury of an intent to defraud the creditors generally.

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ROWLANDS,

J. WILLIAMS.

1882.

STEPHEN, J.-I am of the same opinion. On the first point it WILLIAMS, AND seems to me clear that the 3rd sub-sect. of sect. 13 does apply, not merely to bankrupts and liquidating debtors, but to every person whatever who, with intent to defraud his creditors, conceals or removes his property. As to the second objection, I Debtors Act, agree that we ought to quash this conviction on the special ground that the facts, as stated in the case, are not such as to enable us to say that the conviction was right. The case does not even say that Rowlands has any other creditor than the one mentioned.

MATHEW, J.—I am of the same opinion. It seems to me that the chairman decided as law what ought to have been left to the jury.

ČAVE, J.-I am of the same opinion.

1869-Intent to defraud creditors.

Conviction quashed.

CROWN CASES RESERVED.

Saturday, March 25, 1882.

(Before Lord COLERIDGE, C.J., GROVE, STEPHEN, MATHEW, and CAVE, JJ.)

REG. v. MORBY. (a)

Manslaughter-Infant-Neglect of parent to supply medical aid-
Evidence.

Where a parent neglects to supply medical aid for his child who is
suffering from malignant disease, and the infant dies, in order to
convict the parent of the crime of manslaughter it must be proved
affirmatively that the death was caused by such neglect, and if
the medical evidence on behalf of the prosecution only goes to the
extent that the life probably might have been prolonged by calling
in medical aid, it is not sufficient to support a conviction.

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If death is accelerated by a parent's wilfully neglecting to provide
medical aid in such a case the parent is guilty of manslaughter.
ASE reserved for the opinion of this Court by Sir H.
Hawkins.

CASE

The prisoner was convicted before me at the last session of the Central Criminal Court, of the manslaughter of his son, Abraham

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

REG.

MORBY.

1882.

Morby, a child under the age of fourteen, who lived with him, and was in his custody at Woolwich.

The prisoner had ample means and opportunity to provide adequate food, clothing, medical aid, and lodging for his child, Manslaughter and he did provide all these things, except medical aid; this he, -Parental under the circumstances hereinafter stated, wilfully neglected and neglect. omitted to provide, because, being one of the "Peculiar People,” he did not believe in medical aid, but trusted in prayer and anointment alone (see Epistle of St. James, c. 5, v. 14).

The deceased child, who was eight years old, was, on the 27th Dec. last, known by the prisoner to be suffering from confluent small-pox. Of that disease it died on the 8th Jan.

The jury found that it was reasonable and proper that the prisoner should have called in and provided medical aid for it, but that he wilfully neglected and omitted so to do.

No medical man saw the deceased during life; but Dr. Sharpe, who made a post mortem examination of the body, stated that death was undoubtedly due to small-pox; that small-pox is a disease requiring medical advice and skill, great attention, and great care, and, if not attended to, is calculated to spread.

This question was put to Dr. Sharpe: "In your opinion, do you think the life of the deceased might have been probably prolonged if medical skill had been called in?" to which he answered thus: "Probably; but I would rather put it in this way that the chances of the boy's life would have been increased by having medical advice.”

The prisoner's counsel admitted that he could not contend that the prisoner was not guilty of a breach of the statutory duty imposed on him by 31 & 32 Vict. c. 122, s. 37, but he submitted that the death was not caused by that breach of duty. I held that, if death was accelerated thereby, it would be sufficient. Upon this the prisoner's counsel urged that there was no proof that death was so accelerated. Thereupon Dr. Sharpe was recalled, and the following questions were put to him, to which he gave the answers subjoined:

Q-In your judgment, if medical advice and assistance had been called in at any stage of this disease, might the death have been averted altogether?

A.-I can only answer that by saying that it might have been. Ours is not a positive science. It might have been averted if medical aid had been called in at any earlier stage. I am unable to say whether it probably would. I might say probably as to whether life might have been prolonged. I cannot say that death would probably have been averted. I think it probable that life might have been prolonged. I can only say probably might, because I did not see the case while living. I am unable to say that life would probably have been prolonged, because I did not see the case during life. Had I done so, I might have been able to answer the question.

The prisoner's counsel still insisted there was no proof that

death was caused or accelerated by the prisoner's breach of duty.

I thought it best to submit the evidence to the jury, and to reserve the point, if necessary.

I accordingly asked the jury whether the life of the child would, in their judgment, have been prolonged if medical aid had been called in when the prisoner became aware of the fact that deceased was suffering from small-pox?

To this question they answered that it would.

I then told them that if they so found, and that the death of the child, though it could not be certainly averted altogether, was nevertheless accelerated by the wilful neglect of the prisoner to provide such medical aid when it was reasonable and proper and his duty to provide it-he having the means and opportunity to do so he was guilty of manslaughter.

On this direction the jury found him guilty.

I reserve for the opinion of the Court of Criminal Appeal these two questions:

1st. Whether there was any evidence that the life of the child would have been prolonged for any period of time, however short, if the prisoner had called in and provided medical aidor in other words, that death was accelerated by his breach of duty ?

If there was, I am satisfied with the finding of the jury.

2nd. Whether, assuming the prisoner to have accelerated the death of the child by his breach of duty in wilfully neglecting to provide for it medical aid as aforesaid, he was properly convicted of manslaughter?

If either of these questions is answered in the negative the conviction is to be quashed.

If both are answered in the affirmative it is to be affirmed. The case not being one demanding punishment, I have released the prisoner on his own recognisances to appear for judgment if he should be required to do so.

See 31 & 32 Vict. c. 122, s. 37; Reg. v. Downes (L. Rep. 12 Q. B. Div. 25, s. c. 45 L. J.; 13 Cox's C. C. 111.

March 20, 1882.

H. HAWKINS.

D. Kingsford for the prisoner.-There was no evidence in support of the charge of manslaughter which the judge ought to have left to the jury, and he ought to have directed an acquittal. It was necessary for the prosecution to show that the non-supply of medical assistance by the prisoner was the direct and proximate cause of the death of the boy or of the acceleration of his death. The case of Rex v. Stockdale (2 Lewin C. C. 220) was then cited.

Poland (Mead with him) for the prosecution. The verdict may be supported by taking into account the jury's own personal knowledge in small-pox cases, in addition to the evidence of the doctor, and that they might reasonably have come to the conclusion that the life would have thereby been prolonged. Then,

REG.

v.

MORBY.

1882.

Manslaughter - Parental

neglect.

REG

1.

MORBY.

1882.

as to the second question. [Lord COLERIDGE.-The Court is satisfied that the learned judge's direction was right upon the second question.)

Lord COLERIDGE, C.J.-We are all clearly of opinion that the Manslaughter conviction cannot be supported. The jury may have thought -Parental that, as there had been a neglect of his duty by the parent, it neglect. was right to mark their sense of it by their verdict. Nothing could be more cautious than the answers given by the medical witness to the questions put to him. It was not enough to sustain the charge of manslaughter to show that the parent had neglected to use all reasonable means of saving the life of his child; it was necessary to show that what the parent neglected to do had the effect of shortening the child's life. The utmost that the doctor would say, giving his evidence under a strong responsibility, in answer to the question, "In your judgment, if medical advice and assistance had been called in at any stage of this disease, might the death have been averted altogether?” was, "I cannot say that death would probably have been averted. I think it probable that life might have been prolonged. I can only say probably might, because I did not see the case during life; had I done so I might have been able to answer the question." That evidence is far too vague to allow this conviction to stand when all that the skilled witness could say was that probably the life of the boy might have been prolonged if medical assistance had been called in.

GROVE, J.-I am of the same opinion. The jury, by their verdict, say what the medical witness expressly declined to say, that is, that the boy's life would have been prolonged by calling in medical assistance. The prosecution was bound to give affirmative evidence that the death was caused by the neglect of the prisoner to call in medical assistance.

STEPHEN, J.-I am of the same opinion. This matter might be made absolutely plain if the evidence were to go a little more into detail. Suppose the medical witness had been asked whether the administration of such-and-such medicines which had not been administered would have been of service in prolonging the boy's life, and he had answered that "probably they might have been, but that he could not undertake to say so, not having seen the case." Would any one say that the neglect to administer such medicines would make the father guilty of manslaughter? It is probable that the prisoner was guilty of an offence under the statute in not providing medical assistance, but it does not follow that he was guilty of manslaughter, which requires it to be shown that the result of the neglect was to cause death, whereas here it was left in doubt; and I have always understood that to warrant a conviction the minds of the jury must be free from any reasonable doubt.

MATHEW and CAVE, JJ. concurred.

Conviction quashed.

CHANCERY DIVISION.

March 7 and 8, 1882.

(Before KAY, J.)

WILLIAMS v. WILLIAMS. (a)

Property in a corpse-Fraudulently obtaining a licence to remove a corpse from a burial ground-Rights of executors-Cremation. By a codicil to his will A. directed that within three days after his death, or as soon as conveniently might be, his body should be given to W. to be dealt with by her in such manner as he had directed to be done in a private letter to her, and that any costs or expenses that might be incurred by W. in carrying out and performing the instructions contained in the said letter should be paid and discharged by the executors to his will on production of account and vouchers within three months after his decease. The private letter referred to contained directions for the cremation of the body. The executors refused to deliver up the body to W., and had it buried, two days after his death, in the unconsecrated part of Brompton Cemetery. W. obtained a licence from the Secretary of State for the removal of the body on a representation that she desired to remove it into consecrated ground. She then had it conveyed to Italy, and cremated, and the ashes brought back and buried in England. She then brought an action to recover from the testator's estate the expenses incurred in the cremation of his body. Held, that, there being no property in a corpse, the direction in the testator's codicil for the delivery of the body to W. was wholly void. That the use of the licence to remove the body for the purpose of re-burial, to remove it for the purposes of cremation, is an illegal act. That the way in which the licence was obtained and the act done were fraudulent, and no claim for expenses for an act so done could be permitted in a court of equity. Semble, cremation in England is per se illegal.

HENRY CROOKENDEN, by his will dated the 6th day of

December, 1868, appointed executors, and gave his residuary real and personal estate to his two sons.

He made another codicil to his will, dated the 8th day of April, 1875, in the following terms:

I direct that within three days after my death, or as soon as conveniently may be, my body shall be given to my friend Miss Eliza Williams [the plaintiff in this action], to be dealt with by her in such manner as I have directed to be done in a private letter to her.

(a) Reported by J. R. BROOKE, Esq., Barrister-at-Law.

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