in the death of one or more passengers. or the captain of a vessel fails to stop the boat to rescue a seaman who has fallen overboard and his omission results in the seaman's death; or the motorman of a street-car fails to keep a proper lookout and his omission causes the death of a person; or a person gives intoxicating liquor to a child, in a sufficient quantity, owing to its tender age, to cause its death; or a person runs over another with an automobile, or vehicle of any kind, and causes his death; or a druggist unintentionally gives another a poisonous drug which causes his death;10 or a parent fails to provide food for his infant child;11 or a husband to provide food and medicine for his sick and helpless wife.12 It also applies in any other case where a person owes a legal duty to care for a helpless person. And whether he is to receive compensation for his services or not is immaterial.13 5 State v. O'Brien, 32 N. J. L. 169; State v. Dorsey, 118 Ind. 167, 20 N. E. 777, 10 Am. St. 111. 6 United States v. Knowles, 4 Sawy. (U. S.) 517, Fed. Cas. No. 15540. 7 Commonwealth v. Metropolitan R. Co., 107 Mass. 236. 8 Rex v. Martin, 3 Car. & P. 211. 9 Belk v. People, 125 Ill. 584, 17 N. E. 744; White v. State, 84 Ala. 421, 4 So. 598; State v. Campbell, 82 Conn. 671, 74 Atl. 927, 135 Am. St. 293, 18 Ann. Cas. 236; Lee v. State, 1 Cold. (Tenn.) 62. 10 Reg. v. Markuss, 4 Fost. & F. 356; State v. Center, 35 Vt. 378; Rice v, State, 8 Mo. 561. 11 Reg. v. Conde, 10 Cox Cr. C. 547, Beale's Cases 424; Gibson v. Commonwealth, 106 Ky. 360, 50 S. W. 532, 90 Am. St. 230, 20 Ky. L. 1908; Stehr v. State, 92 Nebr. 755, 139 N. W. 676, Ann. Cas. 1914 A, 573, 45 L. R. A. (N. S.) 559; Reg. v. Downes, 13 Cox Cr. C. 111, Beale's Cases 195, Derby's Cases 97. See also Reg. v. Nicholls, 13 Cox Cr. C. 75, Beale's Case: 193. 12 State v. Smith, 65 Maine, 257; Reg. v. Plummer, 1 Car. & K. 600. See also Westrup v. Commonwealth, 123 Ky. 95, 93 S. W. 646, 6 L. R. A. (N. S.) 685n, 124 Am. St. 316. 13 Reg. v. Instan (1893), 1 Q. B. Div. 450, 17 Cox Cr. C. 602, Beale's Cases 198; Reg. v. Marriott, 8 Car. & P. 425. See also Reg. v. Downes, 13 Cox Cr. C. 111, Beale's Cases 195, Derby's Cases 97; Steph. Dig. Crim. L., art. 213. It is to be observed, however, that inability on the part of the accused constitutes a defense, provided he has reported the matter to the public authorities, where public aid to sick. or helpless paupers is provided by law.14 Moreover, if the neglected person could have saved himself from death the accused is not criminally liable. 15 A person, engaged in operating a mine, who through gross negligence causes the death of another, is guilty of manslaughter. Thus, where an engineer, in charge of a steamengine used to draw up miners from a coal pit, left his engine in charge of an ignorant boy, who was unable to stop it, as a result of which the skip was drawn over the pulley and one of the miners thrown down into the shaft and killed, the engineer was guilty of manslaughter.16 The ground bailiff of a mine, whose duty it is to regulate the ventilation of the mine, and direct where air-headings should be placed, who is guilty of gross negligence in omitting to perform his duty, thereby causing an explosion of fire-damp which produces death, is guilty of manslaughter.17 § 386. Homicide arising from omission to perform legal duty owing to religious scruples.-A good motive is no defense to a criminal charge. It follows, therefore, that a conscientious belief in the faith cure, or religious scruples against the use of drugs, is no excuse for omitting to perform a legal duty. Medical attendance and remedies are considered necessaries, both in England and in this country; and a person who owes a legal duty to another to provide him with such, and who is able to do so, is criminally responsible for 14 Reg. v. Mabbett, 5 Cox Cr. C. 339; Reg. v. Philpott, 6 Cox Cr. C. 140; Reg. v. Hogan, 2 Den. Cr. C. 277, 5 Cox Cr. C. 255. 15 Reg. v. Shepherd, Leigh & C. 147, 9 Cox Cr. C. 123. 16 Reg. v. Lowe, 3 Car. & K. 123, Beale's Cases 192, Derby's Cases 50. 17 Reg. v. Haines, 2 Car. & K. 368, Beale's Cases 170. 19 refusing because of conscientious religious scruples.18 There are cases, however, holding the contrary. The same principle is applicable where a person does not believe in the expediency of vaccination. His belief, in such case, will not exempt him from criminal liability for violating a statute which requires it to be done.20 § 387. Homicide arising from negligence less than gross. -As heretofore stated, to render a person liable for involuntary manslaughter he must be guilty of gross negligence. Where, however, his negligence falls short of being gross, the killing constitutes excusable homicide.21 18 State v. Chenoweth, 163 Ind. 94, 71 N. E. 197; Reg. v. Senior, 1 Q. B. Div. 283, 19 Cox Cr. C. 219; Reg. v. Downes, 13 Cox Cr. C. 111, Beale's Cases 195, Derby's Cases 97; Rex v. Brooks, 9 Brit. Col. 13; People v. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187, 98 Am. St. 666. See also Owens v. State, 6 Okla. Cr. 110, 116 Pac. 345. Ann. Cas. 1913 B, 1218n. 19 State v. Sanford 9 Maine 441, 59 Atl. 597; Justice v. State, 116 Ga. 605, 42 S. E. 1013, 59 L. R. A. 601. 20 Commonwealth v. Pear, 183 Mass. 242, 66 N. E. 719, 67 L. R. A. 935 (affd., 197 U. S. 11, 49 L. ed. 643, 25 Supp. Ct. 358). 21 4 Bl. Comm. 182; State v. Benham, 23 Iowa 154, 92 Am. Dec. 416; Pinder v. State, 27 Fla. 370, 8 So. 837, 26 Am. St. 75. § 390. Definition.-Mayhem consists in maliciously and wilfully causing an injury to some part of a person's body whereby he is rendered less able in fighting to defend himself or annoy his adversary. Hawkins defines it as "a hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary."1 Blackstone defines it as "the violently depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself or to annoy his adversary." This definition, however, is faulty, as a person may be guilty of mayhem in causing an injury to himself. Thus, a person who maims himself to avoid impressment as a soldier or sailor, 11 Hawk. P. C. (Curw. ed.), p. 107, § 1. See also 1 East P. C. 393; Reg. v. Hagan, 8 Car. & P. 167, 171; Commonwealth v. Newell, 7 Mass. 245; State v. Johnson, 58 Ohio St. 417, 51 N. E. 40, 65 Am. St. 769n; Foster v. People, 50 N. Y. 598, Derby's Cases 325. 24 Bl. Comm. 205. or to render himself more an object of pity for the purpose or obtaining alms, is guilty of the crime.3 § 391. Nature of the crime at common law. At the old common law, the part of the body injured, rather than the seriousness of the injury, determined the nature of the offense. The question was, did the injury impair the man's ability to fight or defend himself? "For," as said by Lord Coke, "the life and members of every subject are under the safeguard and protection of the law * to the end that they may serve the king and their country when occasion shall be offered." To cut off, disable or weaken, a man's hand, finger or foot; or to knock out an eye or front tooth; or to castrate him; or break his skull, constituted mayhem at the old common law. But to bite off a man's ear, or nose, was not mayhem; for, as said by Hawkins, "they do not weaken, but only disfigure him." It is to be observed, therefore, that, at the old common law, injuries which merely disfigured a person, no matter how seriously, did not constitute mayhem. It is also to be observed that to constitute an act of mayhem the injury inflicted must result in a permanent disability. As said by Blackstone, the party injured must be "forever disabled from making so good a defense against future external injuries as he otherwise might have done." § 392. Early English statutes.-The chief early English statutes on the subject of mayhem, and which form part of our common law, are the following: 5 Hen. IV, ch. 5; 37 Hen. VIII, ch. 6, and 22, 23 Charles II, ch. 1. 3 Wright's Case, Beale's Cases 145; 1 Hawk. P. C. 108; 1 Russ. Law of Crimes (9th Am. ed) 852. 4 Coke's Inst. 127a. 51 Hawk. P. C. 107. See also 1 East P. C. 393, 3 Bl. Comm. 121; 4 Bl. Comm. 205; Chick v. State, 7 63 Bl. Comm. 121. |