less bicycling, or carelessness in the use of automobiles and other conveyances.

(c) Careless Handling of Deadly Weapons, Poisons, and Other Agencies.-A man may also be guilty of manslaughter because of carelessness in the handling of a deadly weapon. It is perfectly lawful to shoot at a mark in the absence of statutory prohibition; yet, if a man negligently takes such a position that the bullets must go in the direction of a habitation, he will be guilty of manslaughter if they happen to kill a person. And the same is true in any other case of culpable negligence in handling a deadly weapon.397 The principle also ap

396

396 Reg. v. Salmon, 14 Cox, C. C. 494, Beale's Cas. 189.

397 In State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496, the accused, for the purpose of frightening a woman, snapped a pistol at her, and it went off, and killed her. The weapon had been in the house for five years, and unsuccessful attempts had repeatedly been made to fire it off, and it was clear from the evidence that the accused did not. think it would go off. He was convicted of manslaughter, however, and the conviction was sustained on the ground that he was guilty of gross negligence. See, also, Rampton's Case, Kelyng, 41; People v. Fuller, 2 Park. Cr. R. (N. Y.) 16;

plies to negligence in handling poisons and other dangerous drugs.398 A building contractor is guilty of manslaughter if, by using poor and defective materials, he constructs a building in such a manner as to render it dangerous, and it collapses because of such negligence on his part, and causes a death.399

(d) Negligence of Physicians and Surgeons. If a physician or surgeon honestly

Reg. v. Campbell, 11 Cox, C. C. 323; Reg. v. Jones, 12 Cox, C. C. 628; Sparks v. Com., 3 Bush (Ky.) 111, 96 Am. Dec. 196; People v. Steubenvoll, 62 Mich. 329; State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Roane, 2 Dev. (N. C.) 58; State v. Vines, 93 N. C. 493, 53 Am. Rep. 466; Robertson v. State, 2 Lea (Tenn.) 239, 31 Am. Rep. 602; State v. Vance, 17 Iowa, 138; People v. Fuller, 2 Park. Cr. R. (N. Y.) 16.

398 Reg. v. Crook, 1 Fost. & F. 521; Reg. v. Markuss, 4 Fost. & F. 356; Reg. v. Gaylor, Dears. & B. C. C. 288, 7 Cox, C. C. 253; Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561; State v. Center, 35 Vt. 378.

A person causing the death of a child by giving it spirituous liquors in a quantity unfit for its tender age is guilty of manslaughter. Rex v. Martin, 3 Car. & P. 211.

399 People v. Buddensieck, 103 N. Y. 487, 57 Am. Rep. 766.

and in good faith performs an operation, or administers a drug, and the patient dies therefrom, he is not guilty of manslaughter, merely because he made a mistake, or did not have sufficient skill.400 But if the death was due to gross negligence, inattention, or ignorance, he is guilty.401 By the weight of authority, the same rules apply to one who assumes to act as a physician or surgeon without being regularly licensed. 402

400 1 Hale, P. C. 428; 4 Bl. Comm. 197; Reg. v. Chamberlain, 10 Cox, C. C. 486, Beale's Cas. 187; Reg. v. Spencer, 10 Cox, C. C. 525; Rex v. Williamson, 3 Car. & P. 635; Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Long, 4 Car. & P. 398; Reg. v. Macleod, 12 Cox, C. C. 534; Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561; post, § 274. 401 Rex v. Long, 4 Car. & P. 423; Rex v. Spiller, 5 Car. & P. 333; Reg. v. Chamberlain, 10 Cox, C. C. 486, Beale's Cas. 187; Reg. v. Macleod, 12 Cox, C. C. 534; Reg. v. Spilling, 2 Mood. & R. 107; Reg. v. Spencer, 10 Cox, C. C. 525; State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264. See, also, Rex. v. Senior, 1 Mood. C. C. 346; Reg. v. Markuss, 4 Fost. & F. 356; Reg. v. Crook, 1 Fost. & F. 521.

402 1 Hale, P. C. 429; Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Long, 4 Car. & P. 398, 423; Reg. v. Chamberlain, 10 Cox, C. C. 486, Beale's Cas. 187. And see the cases cited in the notes preceding.

265. Nonfeasance.

(a) In General.-The unintentional killing of another by omission to perform a legal duty owing to him, under circumstances showing inexcusable negligence, or failure to exercise reasonable diligence, is manslaughter.403 mere nonfeasance, or omission to perform a duty, is murder or manslaughter, depends upon whether the omission was willful or not. If it was not willful, but due to gross negligence, the homicide is manslaughter; but if it was willful, and the natural consequence was to cause death, the homicide is murder.404 Whether such a homicide is manslaughter or excusable homicide depends upon whether the omission was due to gross negligence. If the negligence was not gross

Whether a homicide by

403 Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170; Reg. v. Lowe, 3 Car. & K. 123, Beale's Cas. 192; Reg. v. Hughes, 7 Cox, C. C. 301.

The captain of a vessel is guilty of manslaughter, at least, if he negligently fails to stop the vessel, and lower a boat, so as to rescue a seaman who has fallen overboard. U. S. v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15.540.

404 Ante, § 247.

under the circumstances, the homicide is excusable.405

(b) Negligence of Persons in Charge of Railroad Trains, Machinery, Appliances, etc.-The above principle has repeatedly been applied to persons in charge of railroad trains and steamboats, and other persons charged with duties in connection therewith, or with other kinds of machinery and appliances. In the case of a collision between railroad trains, and the death of a passenger or employe of the company caused by the negligence of the engineer or of a switchman or train dispatcher, if his omission was willful, and, a fortiori, if he actually intended the collision, he is guilty of murder. If the omission was not due to gross negligence or inattention, the homicide is excusable as an accident. If it was due to gross negligence or inattention, it is manslaughter. 406

(c) Negligence in Connection with Mines. -The same principle applies when a mine

405 Post. § 274.

406 State v. O'Brien. 32 N. J. Law. 169: Reg. v. Pargeter. 3 Cox. C. C. 191.

A person in charge of a steamboat was held guilty of manslaughter where death was caused