163 Ind. 94 | Ind. | 1904
Appellee was tried in the lower court before a jury upon an indictment for the commission of the crime of involuntary manslaughter. At the close of the evidence introduced by the State, the court ruled thereon that, as a matter of law, it was not sufficient to authorize a conviction of the defendant, and directed-the jury to return a verdict of not guilty, which was accordingly done. A judgment was rendered on the verdict, discharging the defendant. From this judgment the State appeals, and has assigned as errors that the court erred in holding that the indictment did not charge a public offense, and in directing a verdict of not guilty upon the evidence.
The indictment, among other things, charged that the appellee was the father of, and had the custody of one John D. Chenoweth, an infant child of the tender 'age of nine months, and that said infant on and from the 27th day of August, 1899, at the county of Clinton and State of Indiana, was sick, feeble, and in a helpless condition, and was in great need of the services of a physician and medical attention and treatment; that the appellee had sufficient means and was able to secure the services of a physician do attend to his said child and give it proper medical treatment in its then sick and feeble condition, but that he feloniously and wilfully neglected and refused to provide said child with medicine which was necessary for it in its sick condition, but permitted it to linger and languish from the said 27th day of August until the 10th day of September, 1899, on which day it then and1 there at the said county and State, by reason of the said mortal sickness, died, wherefore it is alleged that the defendant “feloniously did involutarily kill and slay” said John D. Chenoweth.
Counsel for appellee urge that this appeal on the part of the State can not be sustained for two reasons: (1) The indictment does not charge a public offense; (2) the evi
The indictment in question is loosely drafted, and may be said to be open, to objections; but the court did not direct a verdict upon the ground of the insufficiency of the pleading, but for the reason that it held that the evidence introduced upon the part of the State would not sustain a conviction. Under the circumstances, the sufficiency of the indictment can not be reviewed, as that question is not presented by the record.
The trial court, in making up the record in order to present for review in this appeal the question reserved by the State, states that there was evidence introduced which tended to prove, among others, the following facts: Appellee was the father of the deceased child, and had the custody thereof. The child was eight months old, and in July, 1899, it became sick. It 'had a cough — something in the nature of whooping cough. In fact, the defendant and his wife believed that the child was afflicted with whooping cough. It continued gradually to grow worse and lingered until September 10, 1899, when it died at its
The learned counsel for the State have, in their briefs, very ably discussed the question which they seek to present,
We regret that we are prevented by the condition of the record in this appeal from deciding the important public question which the State seeks to have reviewed, and thereby determine and settle in this State the law applicable to cases like the one at bar. It is certainly true that the conduct or acts of appellee in wholly refusing to secure the assist
An examination discloses that the contention of appellee’s counsel that the bill of exceptions containing the instruction given by the court whereby a verdict was directed in favor of appellee, and also the facts which the court stated there was evidence to establish, is not in the record must be sustained. Appellee was tried at the September term, 1899, of the Clinton Circuit Court, and on the thirty-eighth judicial day of that term judgment was rendered discharging him without day. Ro time appears to have been allowed the State by the court for filing beyond the term the-bill of exceptions in question, as provided by §1916 Burns 1901. The bill was not filed until the second judicial day of the
Although we can not, for the reasons stated, pass upon the merits of the question, it may not be improper, and perhaps will be useful, if we refer to some of the statutes and decisions pertaining to the question attempted to be presented in this appeal. In Reg. v. Wagstaffe (1868), 10 Cox C. C. 530, it was held, that “where from conscientious religious conviction that' God would heal the sick, and not from any intention to avoid the performance of their duty, the parents of a sick child refuse to call in medical assistance, though well able to do so, and the child consequently dies, it is not culpable homicide.” This case was decided in January, 1868, and in July of that year the first act in England upon the subject, so far as we are aware, was enacted. 31 and 32 Vict., chap. 122, §37. This act made it an offense for any parent wilfully to neglect to provide medical aid for his child in his custody and under the age of fourteen years, whereby the life of such child should be, or was likely to be seriously injured. In the case of Reg. v. Downes, supra, it was held to be manslaughter where the child died from such neglect.' In 1894 this act was amended by 57 and 58 Vict., chap. 41, so as to provide, among other things, that “if any person over the age of sixteen years who has the custody, charge, or care of any child under the age of sixteen years, wilfully * * * neglects * * * such child, * * * in a manner likely to cause such child unnecessary suffering, or injury to its health * * * that person shall be guilty of a misdemeanor.”
In Reg. v. Senior, supra, the defendant was charged and convicted of manslaughter of his infant child, of which he had the custody. He was a member of a sect called the
In Rex v. Brooks (1902), 9 Brit. Col. 13, a conviction of manslaughter growing out of the neglect to provide minor children with the necessaries of life was affirmed. The evidence in that case established that John Rogers belonged to a sect called “Catholic Christians in Zion,” or “Zionites.” One of the tenets of this sect is- that it is contrary to the teachings of the Bible, and therefore wrong, to have recourse to medical aid and drugs in case of sickness. As a consequence of this belief, the accused omitted to provide his children with medical attendance and 'appropriate medical remedies when they were sick with diphtheria. The children in question were both under the age of six years, and were members of their father’s family, and were wholly dependent upon him for support. He knew that they had
In the case of People v. Pierson (1903), 176 N. Y. 201, 68 N. E. 243, the defendant was indicted for violating a section of the penal code of the state of New York, which provides that “A person who wilfully omits, without lawful excuse, to perform a duty, by law imposed upon him, to furnish food, clothing, shelter, or medical attendance to a minor * * * or neglects, refuses or omits to comply with any provisions of this section, * * * is guilty of a misdemeanor.” In that case the defendant was charged under this statute with having omitted, without lawful excuse, to perform a duty imposed upon him by law, in failing to furnish medical attendance to his minor child, and in refusing to allow her to be attended by a regular physician, when she was sick with, and suffering from the disease of, pneumonia. The excuse offered by the father of the child for not calling a physician was that he believed in divine healing, which could be accomplished by prayer. He statéd that he belonged to the “Christian Catholic Church 'of Chicago”; that he did not believe in physicians, and that his religious faith led him to believe that the child would get well by means of prayer. He believed in diseases, but believed that
The question, as previously said, is one of public importance, and, if there is an absence of law in this State in respect to a case like this, the legislature should promptly deal with the matter by proper legislation.
For the reasons stated in regard to the record, the judgment must be affirmed, without considering the merits of the question.
Judgment affirmed.
Gillett, J., concurs in the result.