great coat.

The window of the room was bricked up and the floor of it in a filthy state; and though the weather was extremely cold, there was no appearance that there had been any fire in the room. From this place he was conveyed to the Stafford Lunatic Asylum, where his limbs were found to be in a contracted state, so that he could not stand or move about.

Campbell, for the defendants. I submit that this indictment is not supported. There is no actual assault proved. It should be observed, that the indictment in the case of Rex v. Ridley, did not charge any thing like an assault, but only a malicious non-feasance, and a positive exposure to the inclemency of the weather, contrary to the defendant's duty. But here, the assault which is charged is not proved, and all the rest of the indictment is mere matter of non-feasance. The present indictment states, that the idiot was in the care, custody, and control of the defendants. Now, a child is in the care of its parents, and that raises a duty to provide for it; but the relation of brother and brother, does not raise any such duty, and for this purpose the parties were absolute strangers. How can George Smith be said to be under the care, custody, or control of either of the defendants? An idiot may be as helpless as a child of tender years; but George Smith was more than twenty-one years of age; and there is nothing to show that there was a duty raised in any other to take care of him. The indictment alleges, that they kept him in a dark, unwholesome room, and neglected and refused to administer to him sufficient meat, drink, etc., for his support and did keep him without proper air, etc. All this is non-feasance, and there is not the slightest evidence of malfeasance, and certainly no evidence of an assault. There may be evidence that he was properly taken care of. If he had been found a lunatic, and the defendants had been his committee, that would raise a duty in them to take care of him. But if a person is alleged to be an idiot, it may be the duty of his nearest relations to take care of him; but that would be what the moralists call a duty of imperfect obligation. To support any of the counts except the last, it must be shown that either by contract or by law there was a duty in the defendants to maintain and take care of their brother. If they did not maintain their brother could any action be brought against them? Certainly not. Now, can there be a case of any breach of duty, where no action is maintainable. The duty can only arise by contract or by act of law. The former there is no pretense for, and as to the latter, he was not their child, nor were they his committee.

Whateley, on the same side. To support this indictment, it is not sufficient that there should be a moral obligation in the defendants to maintain this unfortunate person, but there must be a legal one, such 1 DEFENCES.

48

as arises from the relation of parent and child, or husband and wife, master and servant.

or

Taunton, for the prosecution. This indictment states that George Smith is an idiot, and was under the care, custody and control of the defendants. Now that is a question of fact; and if so must be left to the jury. This prosecution is not founded on the case of Rex v. Ridley, but on the common law. In the case of Rex v. Ridley, LAWRENCE, J., held the indictment bad, for want of the allegation that the servant was of tender years. Now, here it is alleged, that the party was an idiot; and an idiot is as much in the care and protection of others, as a child of tender years. With respect to the indictment not being supportable, because it charges only acts of omission, has Mr. Campbell forgotten the case of Charles Squires, who was tried for murder, caused by omitting to give an apprentice food. He was found guilty, and executed for that omission. It is said, in this case, there was no legal obligation on the defendants. I submit that there was; and unfortunate would be the situation of such wretched beings if there were not. A brother may not be bound to take care of a brother, if the father be living; but if two brothers and a sister have received as an inmate, another brother who is an idiot, and have, in point of fact, that brother under their care and control, though this was in the first instance voluntary, the law throws on them the necessity of taking proper care of him. The facts here show, that this idiot was in the care, custody and control of the defendants, because he was secured in a room in their house, which he could not get out of; and it is in evidence, that two of the defendants said, they had him locked up there. This was a positive act, and more than an act of omission. It proved literally, that he was in their custody and control. If having him in that room fastened up, is not having him in their control, it is hard to say what would be. This is like the case of a voluntary bailee. He would not be compellable to take charge of the goods at all, but if he did become a bailee, he would be liable, if they were lost through his neglect. We do not indict them for neglecting to maintain him, but we charge, that they have had him in their custody, and have not treated him properly.

Russell, on the same side. The indictment states, that George Smith was in the care, custody, and control of the defendants. The question, therefore, is, whether that is proved. It appears that he was helpless, and secured in a room, and when persons wanted to see him, they looked for the key of his room. If a man can not take care of himself, he must be in the care of some one. Now, in whose care was this person? In the care of those in whose house he was locked up. Mr. Campbell has said, that there is no legal obligation between brother and brother. Suppose a father to die and leave two sons, one thirty years

old and the other two; and if, by the neglect of the elder, the younger died while residing in his house, would he not be answerable for murder? Indeed, if it were not so, any one on whom the care of a lunatic or infant brother devolved, might get his money improperly, and then starve him to death with impunity. The seventh, eighth, and ninth, counts, at all events, are proved. They are for assaults; and to constitute an assault, it is not necessary that there should be a striking. That was held in the case of Rex v. Nichol and Rex v. Rosinski, which were cases of indecent conduct towards females;1 and the case of Rex v. Ridley, was more like the present, as a part of the charge there was for depriving the party of proper warmth.

Campbell. Ridley's Case was not for depriving the party of warmth but was for a mal-feasance in exposing her to cold.

Taunton. From the whole context it appears, that the exposure in that case was not by an act done, but only by omission.

Russell. I shall further contend, that if a person is fastened up in a room, that is, in law, an assault.

Campbell, in reply. The question is, whether there was a legal obligation on the defendants; for mere non-feasance is only indictable when there is a liability and a neglect of duty. In malfeasance, a positive act is done. Mr. Justice Lawrence made the distinction in the broadest way, in the case of Rex v. Ridley. In that case there was non-feasance and malfeasance, and the learned judge expressly distinguishes between the two. The defendants are said to have had George Smith in their care, custody and control; now there is no evidence that they were his committees, or that they were under any legal liability to maintain him. And further, how does it at all appear, that they had any right to prevent his going away? If the people at the lunatic asylum had persuaded George Smith to leave the house, the defendants could have brought no action against them for getting him away. So far from that, could not the defendants have carried him to the workhouse? Nay, if they had been hard-hearted enough they might have

1 In the case of Rex v. Nichol, Russ. & Ry. C. C. 130, the prisoner was indicted for an assault; he was a schoolmaster, and took indecent liberties with a female scholar, of the age of thirteen, without her consent, though she did not resist; and the twelve judges held, that this was sufficient to support a count for a common assault. The case of Rex v. Rosinski, Ry. & M. C. C. 19, was that of a person who pretended to cure all disorders; and being consulted by a female, he took off all her clothes (she being unwilling that he should do so), under

pretense of curing her of fits; and the twelve judges held that this was an assault.

2 It is worthy of remark, that the statute, 43 Eliz. ch. 2, which enacts that the father, grandfather, mother, grandmother, and children of a poor person being of sufficient ability, shall maintain such poor person, under penalty of 20s, for every month they shall fail to do so, does not extend to one brother maintaining another. So that, if a man were in a work-house, his brother would not be compelled to contribute any. thing towards his support, however able to do so.

insisted on his going there.2 In the present case there is nothing like an assault proved. The cases of Nichol and Rosinski were both cases of an act done; but here there is not the slightest evidence of any act done by the defendants; and mere non-feasance can only become a crime where there is a breach of a legal duty.

BURROUGH, J. I am clearly of opinion, that, on the facts proved, there is no assault and no imprisonment in the eye of the law, and all the rest of the charge is non-feasance. In the case of Squires and his wife for starving the apprentice, the husband was convicted, because it was his duty to maintain the apprentice, and the wife was acquitted, because there was no such obligation on her. I expected to have found in the will of the father, that the defendants were bound if they took the father's property, to maintain this brother; but, under the will, they are only bound to pay him £50 a year, and not bound to maintain him. William Smith appears to have been the owner of the house, and Thomas and Sarah were mere inmates of it, as their idiot brother might be; as to these latter, there could clearly be no legal obligation on them, and how can I tell the jury that either of the defendants had such a care of this unfortunate man as to make them criminally liable for omitting to attend to him. There is strong proof that there was some negligence; but my point is, that omission, without a duty, will not create an indictable offense. There is a deficiency of proof of the allegation of care, custody and control, which must be taken to be legal care, custody and control. Whether an indictment might be so framed as to suit this case, I do not know; but on this indictment, I am clearly of opinion that the defendants must be acquitted.

Verdict, not guilty.

OMISSION-NEGLECT TO PROVIDE MEDICAL ASSISTANCE FOR DAUGHTER.

R. v. SHEPHERD.

[9 Cox, 123.]

In the English Court of Criminal Appeal, January, 1862.

Neglect to Provide Medical Assistance for Daughter-Omission-No Crime.The prisoner's unmarried daughter, aged eighteen, having for some time previously gone out to service, and occasionally returned to live with her mother and stepfather, at such times working at glove making in order to earn her living, was confined with child at her stepfather's house, and the prisoner, her mother, purposely neglected to procure a midwife or other proper person to attend her daughter when she was taken in labor, and by reason thereof she died in child-birth. Held, that the prisoner was not guilty of a crime.

Case stated for the opinion of the court by WILLIAMS, J.

The prisoner was indicted for the murder of her daughter, Mary Ann Ashton, and tried before me at the gaol delivery for the County of Devon, in December last.

The case for the prosecution was, that the prisoner, having great illwill towards the deceased, had purposely neglected to procure a midwife, or other proper person, to attend her daughter when she was taken in labor; and that, by reason thereof, she died in child-birth. She was about eighteen years of age and unmarried.

The prisoner, nearly four years before the trial, had married a second husband, who was not the father of the deceased. After the marriage, the deceased lived with her stepfather and her mother for some time, and then went out to service, occasionally returning to live with them when she was out of place, and at such times working at glove making in order to earn her subsistence. About the beginning of the harvest before her death (which took place on October 26, 1861) she came back from service to her stepfather's house, and continued to reside with her mother and her stepfather and their family till she died, except that she was absent staying with an aunt near Bridgewater for about six weeks, whence she returned to her stepfathers's on Tuesday, and continued there till the following Saturday, when she died.

At the close of the case for the prosecution it was objected by the counsel for the prisoner that she was under no legal duty or obligation to procure, or try to procure, the attendance of a midwife for her daughter, and therefore that she was not criminally responsible for neglecting to do so.

I told the jury to consider whether it was established by the evidence that the death of Mary Ann Ashton was attributable to the prisoner's neglect to use ordinary diligence in procuring the assistance of a midwife, or other proper attendant, and if it was not so established to acquit the prisoner. But if it was so established, then to consider, secondly, whether by so neglecting, she intended to bring about the death of her daughter, and if so, I told the jury to convict her of murder; but if not, of manslaughter.

The jury convicted her of manslaughter, but I respited the judgment in order to obtain the opinion of this court whether the objection to the conviction was well founded.

EDW. VAUGHAN WILLIAMS.

H. T. Cole, for the prisoner. The conviction can not be sustained. There was no legal obligation on the prisoner to procure, or attempt to procure, a midwife for her daughter. [WILLIAMS, J. The view adopted by the jury must be taken to be that, if the deceased had had the assistance of a midwife of ordinary skill, her life would have been