running an automobile at a certain speed, may be lawful and proper on a country road while grossly negligent on a city street. 85

§ 376. Homicide arising from shooting at a target.—A homicide which arises from shooting at a target may be excusable or felonious. Its nature depends upon the circumstances attending the act. If, under the circumstances, proper precautions have not been taken and shooting at the target constitutes gross negligence, the unintended homicide resulting therefrom constitutes manslaughter. Thus, where several persons engage in shooting at a target, and the bullets cross several highways and go in the direction of a habitation, as a result of which a boy in his father's garden is unintentionally killed, the homicide is involuntary manslaughter. Moreover, since all engage in the common pursuit all are criminally liable.86

§ 377. Homicide arising from snapping a revolver at another merely to frighten.-A person who snaps a loaded revolver at another, honestly believing that it is not loaded, or, if possessing knowledge that it is loaded but honestly believing that it will not go off, and intending merely to frighten the other party, shoots and kills him, is guilty of gross negligence and liable for manslaughter.87 Where one carelessly fires a pistol at the ground and the bullet glancing kills a bystander, he is not guilty of manslaughter unless the death was a natural and probable consequence of his act.88

85 Belk v. People, 125 Ill. 584, 17 N. E. 744; Crum v. State, 64 Miss. 1, 1 So. 1, 60 Am. Rep. 44; White v. State, 84 Ala. 421, 4 So. 598.

96 Reg. v. Salmon, 14 Cox Cr. C. 494, Beale's Cases 189.

87 State v. Hardie, 47 Iowa 647, 29 Am. Rep. 496. See also State

v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Vines, 93 N. Car. 493, 53 Am. Rep. 466; Sparks v. Commonwealth, 3 Bush (Ky.) 111, 96 Am. Dec. 196.

88 Dixon v. State, 104 Miss. 410, 61 So. 423, 45 L. R. A. (N. S.) 219.

In such case, the following instruction correctly states the law: "If the defendant used a dangerous and deadly weapon, in a careless and reckless manner, by reason of which instrument so used he killed the deceased, then he is guilty of manslaughter, although no harm was in fact intended."89

§ 378. Homicide arising from turning a vicious animal where it may injure someone.-If a person has knowledge that a certain animal is vicious and dangerous, and turns it out where there is danger that it may injure some one, and it attacks and kills a person, he is guilty of manslaughter.90

§ 379. Homicide arising from negligent operation of automobile.—Where one wilfully drives an automobile in a public street at a speed or in a manner expressly forbidden by statute, and thereby causes the death of another, or with reckless disregard for the safety of others so negligently drives his automobile in a public street as to cause another's death, he is guilty of manslaughter.91 This principle was also applied in a case where a passenger was thrown out by reckless driving and killed.92

§ 380. Homicide arising from treatment or operation by physician or surgeon.-When a physician or surgeon, in treating a patient or performing an operation upon him, causes his death by gross negligence he is guilty of manslaughter. Consent of the patient is no defense. Thus, where a practicing physician, on being called to attend a sick

89 State v. Hardie, 47 Iowa 647, 29 Am. Rep. 496. But where one did not know a gun was loaded and merely intended to punch another with it and the gun was accidentally discharged, there is no presumption of an intent to kill. Delk v. State, 135 Ga. 312, 69 S. E. 541, Ann. Cas. 1912 A, 105.

90 Reg. v. Dant, 10 Cox Cr. C.

91 State v. Campbell, 82 Conn. 671, 74 Atl. 927, 135 Am. St. 293, 18 Ann. Cas. 237; Commonwealth v. Horsfall, 213 Mass. 232, 100 N. E. 362, Ann. Cas. 1914 A, 682.

92 State v. Block, 87 Conn. 573, 89 Atl. 167, 49 L. R. A. (N. S.) 913; State v. McIver, 175 N. Car. 761, 94 S. E. 682.

woman prescribed that her clothes should be kept saturated with kerosene, as a result of which treatment she died, he was guilty of manslaughter.93

It has been held, however, that when a licensed physician, or even a person who assumes the character of a physician whether licensed or not, through ignorance administers medicine which causes the death of the patient, with an honest intention and expectation of a cure, he is not guilty of felonious homicide. Such was the view of Lord Hale.94 But, as said by Justice Holmes, "Lord Hale himself admitted that other persons might make themselves liable by wreckless conduct. We doubt if he meant to deny that a physician might do so, as well as any one else. He has not been so understood in later times."95 And many modern English cases are in harmony with Justice Holmes' view.96

§ 381. Treatment or operation by physician-Bishop's view. "From the relationship of physician and patient the death of the latter not unfrequently arises. On this subject the doctrine seemed 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 this 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

93 Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264.

941 Hale P. C. 429; Commonwealth v. Thompson, 6 Mass. 134, 3 Wheeler Cr. Cases 312; State v. Schultz, 55 Iowa 628, 8 N. W. 469, 39 Am. Rep. 187.

95 Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264.

96 Reg. v. Whitehead, 3 Car. & K. 202; Reg. v. Markuss, 4 Fost. & F. 356; Reg. v. Spilling, 2 M. & Rob. 107; Reg. v. Chamberlain, 10 Cox Cr. C. 486; Reg. v. Macleod, 12 Cox Cr. C. 534.

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.97

§ 382. Homicide arising from nonfeasance.-A homicide which arises from a mere nonfeasance may constitute murder, manslaughter or excusable homicide. The nature of the killing depends upon the circumstances attending the particular case.

§ 383. The duty omitted must be a legal one.-To render a person criminally liable for a homicide which arose from nonfeasance, the proof must show that he neglected to perform a legal duty which he owed to the deceased. Omission to perform a merely moral duty is not criminal. Thus, where a mother omitted to procure the aid of a midwife for her emancipated daughter during child-birth, in consequence of

972 Bish. New Crim. L. (8th ed.), § 664; Feige v. State, 128 Ark. 465, 194 S. W. 865.

which neglect the daughter died, the mother was not criminally liable because the duty she omitted to perform was not a legal one.98

§ 384. Homicide arising from wilful omission to perform legal duty constitutes murder.-When a person owes to another a legal duty, and is wilfully and inexcusably negligent in failing to perform that duty, as a natural consequence of which the person to whom he owes the duty is killed, the homicide is murder. Parents are under a legal obligation to provide food, shelter and medical attendance for their children, and if they wilfully neglect so to do, and their children die as a result, the parents are guilty of murder.99 The same principle is applicable to a switchman in the employ of a railroad company. If he wilfully omits to adjust a switch, thereby causing a collision of trains which results in the death of one or more passengers, he is guilty of murder.1

§ 385. Homicide arising from gross negligence.-When death is caused by gross negligence the homicide is manslaughter. The principle involved has been recognized in a great variety of cases, including the following: Where, through gross negligence, a person discharges a revolver and kills another; or a physician in treating a patient causes his death; or a switchman causes a collision of trains resulting

98 Reg. v. Shepherd, 1 Leigh & C. 147, 9 Cox Cr. C. 123.

99 Reg. v. Conde, 10 Cox Cr. C. 547, Beale's Cases 424. See also Lewis v. State, 72 Ga. 164, 53 Am. Rep. 835; Territory v. Manton, 7 Mont. 162, 14 Pac. 637, 8 Mont. 95, 19 Pac. 387.

1 State v. O'Brien, 32 N. J. L. 169. See also State v. Dorsey, 118 Ind. 167, 20 N. E. 777, 10 Am. St. 111.

21 Whart. Crim. L. (11th ed.), § 444. See also 124 Am. St. 322.

3 State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Vines, 93 N. Car. 493, 53 Am. Rep: 466; State v. Vance, 17 Iowa 138; Reg. v. Campbell, 11 Cox Cr. C. 323; State v. Hardie, 47 Iowa 647, 29 Am. Rep. 496.

4 Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264, State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5; Reg. v. Chamberlain, 10 Cox Cr. C. 486.