the act in which the slayer was engaged should have been a lawful act. If he, at the time of the killing, was engaged in the commission of a collateral felony the killing was murder, and if he were at such time engaged in the perpetration of a collateral misdemeanor it was manslaughter in the first degree; and in this instance, although the slayer was not engaged in any indictable offence, but in a mere trespass or injury to private rights or property, or in an attempt to commit such injury, he is guilty of manslaughter in the third degree. At the common law this offence was manslaughter:1 as where a man whipped a horse on which another was riding, whereupon the horse sprang out and ran over a child and killed him.2 (c). If the owner of a mischievous animal, knowing its propensities, willfully suffer it to go at large, or shall keep it without ordinary care, and such animal, while so at large or not confined, shall kill any human being, who shall have taken all the precautions which the circumstances may permit to avoid such animal, such owner is guilty of manslaughter in the third degree.3 At the common law it was held that if a man have a wild or unruly beast, which he knows would hurt persons, and he lets it loose, either with a design that it would injure some person, or even to frighten people and make sport, and it kill a man, the man who let it loose would be guilty of homicide.1 (d) Any person navigating any boat or vessel for gain who shall willfully or negligently receive so many passengers, or such a quantity of other lading, that by means thereof such boat or vessel shall sink or overset, and thereby any human being shall be drowned or otherwise killed, is also guilty of manslaughter in the third degree." (e) If the captain or any other person having charge of any steamboat used for the conveyance of passengers, or if the engineer or other person having charge of the boiler of such boat, or of any other apparatus for the generation of steam, shall, from ignorance or gross neglect, or for the purpose of excelling any other boat in speed, create, or allow to be created, such an Fost., 258-259. 1 Hawk., ch. 29, § 3. 2 R. S., 662, § 14. • 1 Hale, 431. 2 R. S., 662, § 15. undue quantity of steam as to burst or break the boiler or other apparatus in which it shall be generated, or any apparatus, or machinery connected therewith, by which bursting or breaking any person shall be killed, is also guilty of manslaughter in the third degree.1 (f) If any physician while in a state of intoxication shall, without a design to effect death, administer any poison, drug or medicine, or do any other act to another person which shall produce 'the death of such other, he is guilty of manslaughter in the third degree.2 The essential ingredient of this grade of manslaughter is the intoxication of the physician. The cases where death occurs from the simple malpractice of the physician, unattended by intoxication, would seem more properly to fall within the fourth degree of manslaughter.. (g) Where the violent explosions of saltpetre or gunpowder at any fire within certain limits in the city of New York, where such saltpetre or gunpowder is stored contrary to the provisions of the statute, shall result in the death of any person or persons, the offender, upon conviction, is to be deemed guilty of manslaughter in the third degree.3 (h) Every agent, engineer, conductor, or other person in the employ of a railroad company or of persons, through whose wrongful act, neglect or default, the death of a person shall have been caused, as mentioned by the statutes, shall be liable to be indicted therefor, and, upon conviction, shall be punished as prescribed by the statute.* D. Manslaughter, Fourth Degree. The involuntary killing of another by any weapon, or by means neither cruel or unusual, in the heat of passion, in any cases other than such as are by the Revised Statutes declared to be excusable homicide, is manslaughter in the fourth degree.5 As before stated, excusable homicide by our statute excluded cases of killing where the death was effected either by a dangerous weapon or in a cruel or unusual manner, and in the subse 12 R. S., 662, § 16. 2 R. S., 662, § 17. • Laws of 1846, ch. 291, p. 387 § 19. Laws of 1849, ch. 256, § 2. 2 R. S., 662, § 18. quent definitions of manslaughter we had, first, a killing in the heat of passion in a cruel and unusual manner, but without a design to effect death; and then again we had another grade of manslaughter, where the killing was also in the heat of passion and without a design to effect death, but by a dangerous weapon, thus including in the two classes of cases thus provided for the two classes excepted from the definition of excusable homicide, and we have now a still lower grade of offence where, although the killing is still involuntary and in the heat of passion, yet it is by a weapon, but not a dangerous one, or else by means which are neither cruel or unusual. Also every other killing of a human being by the act, procurement or culpable negligence of another, where such killing is not justifiable or excusable, or is not declared by the statute to be murder or manslaughter in some other degree, is manslaughter in the fourth degree.1 The general doctrine which applies to all cases of accidents by negligence in common carriers of travellers, whether by land or by sea, is that if speed be used of such a nature as to prevent escape, or to destroy the capacity of the party employing it in case of a collision, or if there be a positive neglect of that care by which a collision could be avoided, the offending party, if death ensue, is guilty of manslaughter.2 If a person breaking an unruly horse ride him amongst a crowd of people, and death ensue from the viciousness of the animal, and it clearly appears to have been done heedlessly and incautiously only, and not with an intent to do mischief, the crime will be manslaughter,3 though it is said in such case it would be murder if the rider intended to divert himself with the fright of the crowd." A husband is bound to afford nurture and comfort to his wife, and if she dies from the want of it he is guilty of manslaughter.5 And the same general principle applies to the relations of parent and child and master and apprentice." 1 2 R. S., 662, § 19. Whar. on Hom., 101; U. S. v. Collyer, Blatch Rep. 1 East. P. C., 231. 1 Hawk. P. C., ch. 31, § 68. R. v. Pluimer, 1 C. & K., 602. • Whar. on Hom., 123, and cases cited. Judicial sentiment on the subject of malpractice, by medical attendants, has been characterized by much vaccilation. The general rules, as appears from an examination of the cases, is that if any person, whether he be a regular licensed medical man or not, professes to deal with the life and health of the people, he is bound to have competent skill to perform the task that he holds himself out to perform, and he is bound to treat his patients with care, attention and assiduity. And in one case the jury were instructed that if the prisoner had used a medical instrument with gross want of skill, or gross want of caution, and that the deceased had thereby lost her life, it would be their duty to find the prisoner guilty.3 Carelessness on the part of persons employed in their ordinary business avocations when resulting in death, is manslaughter.* The jury will be directed, however, to acquit, if reasonable care be shown. Thus, where the prisoner was indicted for manslaughter, in having, by negligence, in the manner of slinging a cask, caused the same to fall and kill two females, who were then passing along the causeway. It appeared that there were three modes of slinging casks customary in Liverpool: one by slings passed around each end of the casks, a second, by can hooks, and the third, in the manner in which the prisoner had slung the cask which caused the accident, namely, by a single rope round the centre of the cask. The cask was hoisted up to the fourth story of a warehouse, and on being pulled endwise toward the door, it slipped from the rope as soon as it touched the floor of the room. The judge, in the course of his charge, told the jury that the double slings are undoubtedly the safest mode; but if you think that the mode which the prisoner adopted was reasonably sufficient, you cannot convict him. Mere wantonness or sport which, however, results in death, makes the offender in like manner guilty; as where such death was occasioned by the throwing of large stones down a mine, and breaking the scaffolding. Where a man lays poison to kill rats, and another man takes it, and it kills him, if the poison were laid in such a manner and 1 Whar. on Hom., 131, et seq., and cases cited. R. v. Spiller, 5 C. & P., 333. Ferguson's Case, 1 Lew., 181. Fost., 262; 1 East., 262; R. v. Carr, 8 C. & P., 163. Rigmardon's Case, 1 Lew., 180. Fenton's Case, 1 Lew., 179. place as to be mistaken for food, it is perhaps manslaughter; if otherwise, mis-adventure only.1 XXV. INCEST. Persons within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who shall intermarry with each other, or shall commit adultery or fornication with each other, are guilty of a felony.2 The following are the marriages which are by statute declared to be incestuous and wholly void, viz.: Marriages between parents and children, including grand parents and grand children, of every degree, ascending and descending; and between brothers and sisters, of the half as well as the whole blood, and this provision extends to illegitimate as well as legitimate children and relatives.3 The statute is only applicable to cases in which the sexual intercouse is by mutual consent; where it is accomplished by force it is punishable only as a rape. XXVI. KIDNAPPING. This is an offence of a very serious nature. Its punishment at common law, however, was no more than fine and imprisonment; though, as has been remarked concerning it, the offence is of such primary magnitude that it might well have been substituted upon the roll of capital crimes in the place of many others which are there to be found. It is an aggravated species of false imprisonment, and all the ingredients in the definition of the lat ter are necessarily comprehended in the former.6 Where there is a forcible abduction, or stealing and carrying away of any person by sending him from his own country into some other, or to parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such, his captivity is properly called kidnapping; but in our statute, in addition to the above circumstances, the secret imprisonment 4 Black. Com., 219, note; Rex v. Grey, 7 Raym., 473; Comb., 10. 7 Hotchkiss St. L., p. 711, § 77. |