SOLICITOR: For prosecution: W. Farnfield.

 

JUDGES: Lord Coleridge, C.J., Bramwell and Pollock, BB., Mellor and Grove, JJ.

 

DATE: 1875 Nov. 18.

 

 

Manslaughter – Infant Child – Neglect to provide Medical Aid – Bonâ fide Belief that Medical Aid unnecessary and wrong – 31 & 32 Vict. c. 122, s. 37.

 

By 31 & 32 Vict. c. 122, s. 37, “When any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, being in his custody, under the age of fourteen years, whereby the health of such child shall have been, or shall be likely to be, seriously injured, he shall be guilty of an offence punishable on summary conviction.”

 

Upon the trial of an indictment for manslaughter it was proved that the prisoner was the father and had the custody of an infant child. The child was ill and wasting for eight or nine months from chronic inflammation of the lungs and pleura, and then died. The prisoner belonged to a sect who never call in medical advice, but call in the elders of their church to pray over the sick person. This course was pursued with the prisoner's child. The prisoner, however, who had no medical skill himself, consulted the person called in to pray over the child, who also had no medical skill, and they thought the child was suffering from teething, and gave it articles of diet which they thought suitable for a child so suffering. The prisoner had sufficient means to procure skilled advice, which was easily obtainable. The jury found on evidence, which, it was to be taken, was sufficient to warrant their findings: first, that the prisoner neglected to procure medical aid for the child when it as in fact reasonable so to do, and when he had the ability; secondly, that the death was caused by that neglect; thirdly, that he bonâ fide, though erroneously, believed that medical aid was not required for the child; fourthly, that he bonâ fide believed that it was wrong to call in medical aid. The learned judge thereupon directed a verdict of guilty to be entered:–

 

Held, without expressing any opinion as to how the case would have stood at Common Law apart from the above statute, that that statute imposed a positive duty to provide adequate medical aid when necessary, and that that duty having been wilfully neglected by the prisoner, and death having ensued from that neglect, the prisoner was properly convicted of manslaughter.

 

CASE stated by Blackburn, J.

 

The prisoner was indicted at the Central Criminal Court for the manslaughter of Charles Downes.

 

It appeared on the trial by the evidence that Charles Downes was an infant who, at the time of his death, was a little more than two years old. The child had been ill and wasting away for eight or nine months before its death. The prisoner, who resided at Woolwich, was the father of the deceased, and had during the whole of this time the custody of the child. [*26]

 

The prisoner was one of a sect who call themselves the Peculiar People. During the whole period of the child's illness he did not procure any skilled advice as to the treatment of the child, but left it to the charge of women who belonged to his sect, and called in at intervals George Hurry, an engine driver, who prayed over the child and anointed it with oil.

 

The reason of this course of conduct was explained by George Hurry, who was called as a witness. He stated that the Peculiar People never call in medical advice or give medicines in case of sickness. They had religious objections to doing so. They called in the elders of the church, who prayed over the sick person, anointing him with oil in the name of the Lord. This he said they did in literal compliance with the directions in the 14th and 15th verses of the 5th chapter of the Epistle of St. James, and in hope that the cure would follow.

 

This course was pursued with regard to the deceased infant during its illness. The prisoner consulted the witness Hurry as to what was the matter with the child, and as to what should be given to it. They thought it was suffering from teething, and he advised the parents to give it port wine, eggs, arrowroot, and other articles of diet which he thought suitable for a child suffering from such complaint, all of which were supplied accordingly. There was no evidence that this treatment was mischievous, and though this was probably not logically consistent with the doctrines of his sect as described by him, the learned judge saw no reason to doubt that it was all done in perfect sincerity.

 

He was asked by the counsel for the prosecution whether if one of their sect met with an accident, such as a broken bone, their principles would prevent their calling in a surgeon to set it, and he answered that he thought they probably would call in a surgeon in such a case, but it had never yet arisen. He was asked whether they trusted to nature in cases of childbirth. He said they did not call in midwives, which would be against their principles, but that several sisters of their persuasion were as skilful as any midwives, and that they assisted the women in labour.

 

He was further asked whether he had not himself, on the trial of Hurry, before Mr. Justice Byles, promised that in future [*27] medical advice should be called in when necessary. He explained that in that case the disease was infectious, and that he understood the judge to say that the law forbade them to endanger the lives of others, and as it was one of their principles to obey the law, he had given a pledge that they would call in medical advice where the disease was infectious, which pledge they had kept.

 

The learned judge here interposed, and asked him whether he would now give a similar pledge in cases where the sick person was a helpless infant, taking the law from him to be that though an adult, who could judge for himself, might refrain from calling in skilled advice without transgressing any law, those who had the charge of a helpless infant were bound to procure it where it was necessary. If he would give such a pledge the learned judge said he had no doubt the prosecutors would be perfectly satisfied, and give no further evidence. He would not, however, do more than promise that he would bring the point before the next assembly of his church. The prosecution, therefore, proceeded. The case added that though all this might shew that these Peculiar People were not logically consistent in their tenets and practice, the learned judge saw no reason to doubt that they were sincere.

 

It was admitted on the part of the prosecution that the child was kindly treated, kept clean, and furnished with sufficient food, and nursed kindly by the mother and the women of the sect.

 

Evidence was then given that the prisoner had sufficient means to procure skilled advice, which was easily to be obtained at Woolwich. That neither he nor the elder had any competent skill, the disease of which the child died having nothing whatever to do with teething, but being chronic inflammation of the lungs and pleura, which was of long standing, and was a disease which might have been cured at any time if competent advice had been obtained, and probably, though not certainly, would have been so cured if the advice had been called in in the early stages of the complaint.

 

The prisoner, in his own defence, said that he sincerely believed that by abstaining from calling in medical aid he gave the child the best chance of recovery, as if he shewed a want of faith he thought he could not rely on the promise which he thought was given. The prisoner had no counsel. [*28]

 

The attention of the learned judge being called to the decisions of Byles, J., in Reg. v. Hurry (1), and Pigott, B., in Reg. v. Hines (2), which seemed to him contradictory, he expressed his intention to raise the question for the opinion of this Court. He did not reserve any question on the sufficiency of the evidence to prove the cause of the death of the child, or any of the questions of fact, that being a matter which he thought he was bound to decide on his own responsibility. And, accordingly, the case only stated the evidence in so far as it was necessary to make the direction to the jury and the questions put to them intelligible. But taking it that there was sufficient evidence to warrant the findings in fact of the jury, the learned judge reserved everything else.

 

The learned judge told the jury that the law casts on the father, who has the custody of a helpless infant, a duty to provide according to his ability all that is reasonably necessary for the child, including, if the child is so ill as to require it, the advice of persons reasonably believed to have competent medical skill, and that if death ensues from the neglect of this duty it is manslaughter in the father neglecting the duty. He told them that he did not, as at present advised, think it any defence that the prisoner sincerely believed that he ought not to provide such advice, nor that he believed that he was doing the best for the child, if he had not, in fact, competent skill and knowledge himself. After explaining this more fully, he asked the jury four questions, which, to prevent any risk of mistake, were reduced to writing, and handed to them. They answered all in the affirmative. The following is a copy of the writing handed to the jury, and their answers:–

 

“Did the prisoner neglect to procure medical aid for the helpless infant when it was in fact reasonable so to do, and he had the ability? – Yes.

 

“Was the death caused by that neglect? – Yes.

 

“Unless both of these are proved, he is not guilty. If both proved, find him guilty, but then say further:–

 

(1) 76 Central Criminal Court Sessions Paper, 63.

 

(2) 80 Central Criminal Court Sessions Paper, 309. [*29]

 

“Did the prisoner bonâ fide, though erroneously, believe that medical advice was not required for the child? – Yes.

 

“Or bonâ fide believe that it was wrong to call in medical aid? – Yes.”

 

The learned judge thereupon directed the verdict of guilty to be entered, and admitted the prisoner to bail.

 

The question for the opinion of this Court was whether the conviction so obtained on this direction and those findings should stand or be set aside.

 

No counsel appeared for the prisoner.

 

Straight, for the prosecution. The authorities are not in harmony as to whether this conviction could be sustained at Common Law. The ruling of Byles, J., in Reg. v. Hurry (1) is clearly in favour of it, while those of Willes, J., in Reg. v. Wagstaffe (2), and Pigott, B. in Reg. v. Hines (3), tend the other way. But 31 & 32 Vict. c. 122, s. 37(4) now imposes upon a parent a positive statutory duty to procure medical aid for his child, and death having been found to have ensued from the wilful neglect of that duty, it is manslaughter.

 

LORD COLERIDGE, C.J. Speaking for myself alone, I may say that had it not been for the statute to which we have been referred, I should have entertained great doubt upon this case; for, apart from the argument founded upon the statute, I think the observations in the cases cited before Willes, J., and Pigott, B., are deserving of the greatest consideration. But it is not necessary that I should express any opinion upon the question, for I assent to the argument founded upon the statute. The statute

 

(1) 76 Central Criminal Court Sessions Paper, 63.

 

(2) 10 Cox Cr. C. 530.

 

(3) 80 Central Criminal Court Sessions Paper, 309.

 

(4) By 31 & 32 Vict. c. 122, s. 37, “When any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, being in his custody, under the age of fourteen years, whereby the health of such child shall have been or shall be likely to be seriously injured, he shall be guilty of an offence punishable on summary conviction, and being convicted thereof before any two justices shall be liable to be imprisoned for any period not exceeding six months, with or without hard labour …” [*30]

 

makes it an offence punishable summarily wilfully to neglect to provide adequate medical aid for a child. By wilfully neglecting, I understand an intentional and deliberate abstaining from providing the medical aid, knowing it to be obtainable. In the present case the prisoner, from motives with which I have nothing to do, did wilfully neglect to provide it. If he had been proceeded against summarily under the statute he would clearly have been liable. To cause death by culpable neglect is manslaughter, and the neglect on the part of the prisoner which caused death was a wilful disobedience to the law, a wilful neglect of the duty imposed by statute. It was, therefore, culpable neglect. On that short and distinct ground I think the conviction must be affirmed.

 

BRAMWELL, B. I am of the same opinion. I agree with my Lord Coleridge as to the difficulty which would have existed had it not been for the statute. But the statute imposes an absolute duty upon parents, whatever their conscientious scruples may be. The prisoner, therefore, wilfully, – not maliciously, but intentionally, disobeyed the law, and death ensued in consequence. It is, therefore, manslaughter.

 

MELLOR, J. I am of the same opinion, and upon the same grounds.

 

GROVE, J. , and POLLOCK, B. , concurred.

 

Conviction affirmed.