owner or a superintendent or employe in a mine, charged with the duty of ventilating the mine, or of attending the engine for drawing up the miners, fails to properly perform his duty, and thereby causes the death of a miner. If his neglect was due to failure to exercise reasonable diligence, he is guilty of manslaughter.*

407

(d) Neglect of Children and Other Dependent Persons.-The doctrine under consideration has repeatedly been applied in case of the death of a child or other helpless person, caused by the neglect of those charged

by his leaving the boat in the charge of a person who was incompetent. Reg. v. Lowe, 3 Car. & K. 123, 4 Cox, C. C. 449.

Failure of the officers of a vessel, or of an employe on a street car, to keep a lookout, will render them guilty of manslaughter if death is caused thereby. Reg. v. Lowe, supra; Reg. v. Spence, 1 Cox, C. C. 352; Com. v. Metropolitan R. Co., 107 Mass. 236.

407 Reg. v. Haines, 2 Car. & K. 368, Beale's Cas. 170: Reg. v. Lowe, 3 Car. & K. 123, Beale's Cas. 192.

Failure of employe in a mine to plank up a shaft, when he is charged with this duty, will render him guilty of manslaughter if death is caused thereby. Reg. v. Hughes, 7 Cox, C. C.

with his custody and care. It is well settled that if a parent, being able, fails through culpable negligence to provide food, shelter, medical attendance and other necessaries for his dependent child, and thereby causes the child's death, he is guilty of manslaughter at least. 408 If the omission is willful, he is guilty of murder.409 The same principle applies if a husband, by such neglect, causes the death of a sick and helpless wife,410 or in any other case in which a person has undertaken, whether for a compensation or not, to attend and care for one who is helpless.*11

408 Reg. v. Conde, 10 Cox, C. C. 547, Beale's Cas. 424; Reg. v. Downes, 13 Cox, C. C. 111, Beale's Cas. 195. See Rex v. Friend, Russ. & R. 20, Beale's Cas. 190.

Omission to call in a physician from religious and conscientious scruples is elsewhere considered. See ante, § 65.

409 Ante, § 247.

410 Reg. v. Plummer, 1 Car. & K. 600; State v. Smith, 65 Me. 257.

411 Reg. v. Instan [1893] 1 Q. B. 450, Beale's Cas. 198; Reg. v. Nicholls, 13 Cox, C. C. 75, Beale's Cas. 193.

"Every person under a legal duty, whether by contract or by law, or by the act of taking charge, wrongfully or otherwise, of another person, to provide the necessaries of life for such other

Inability to provide the necessary food, medical attendance, etc., is a sufficient excuse. 412 But such a case must be reported to the public authorities, if there are poor laws providing for public aid to sick or helpless paupers.413

or

There is no liability if the person neglected, whether wife, child, servant, stranger, is able to help himself, and avoid the consequences of the neglect.414

(e) There must be a Duty to Act.To render one responsible for a homicide because of mere nonfeasance, he must have omitted some legal duty which he owed to deceased. Failure to perform acts of mercy

person, is criminally responsible for the neglect of that duty, if the person to whom the duty is owing is, from age, health, insanity, or any other cause, unable to withdraw himself from the control of the person from whom it is due, but not otherwise." Steph. Dig. Crim. Law, art. 213.

412 Reg. v. Hogan, 2 Den. C. C. 277, 5 Cox, C. C. 255; Reg. v. Philpott, 6 Cox, C. C. 140.

413 Reg. v. Mabbett, 5 Cox, C. C. 339.

414 Rex v. Friend, Russ. & R. 20; Reg. v. Shepherd, Leigh & C. 147, 9 Cox, C. C. 123; Reg. v. Waters, 2 Car. & K. 864, 1 Den. C. C. 356; Reg. v. Smith, Leigh & C. 607, 10 Cox, C. C. 82.

or mere moral obligations is not enough.415 For a stranger to neglect to give warning so as to prevent a collision between railroad trains, or to prevent a man from taking poison, or for him to fail to rescue a drowning person or feed a starving child, would not render him guilty of manslaughter, for he is only under a moral obligation to interfere in such cases, and the law does not undertake to punish for failure to perform moral obligations. There must have been a legal duty, and it must have been owing to the deceased.416

415 1 Whart. Crim. Law, §§ 329, 330; Connaughty v. State, 1 Wis. 159; Burrell v. State, 18 Tex. 713.

416 In Reg. v. Smith, 11 Cox, C. C. 210, Beale's Cas. 192, the accused was employed by the owner of a tramway, which crossed a public highway, to warn travelers on the highway of the approach of trucks on the tramway, but the owner of the tramway was under no legal duty to warn travelers. Under these circumstances, it was held that the accused owed no duty to the travelers, and that his failure to give warning, whereby the death of a traveler was caused, did not make him guilty of manslaughter. If a statute had imposed a duty to give warning, it would have been otherwise.

Failure to provide food or medical attendance for a starving or sick and helpless person

Knowledge of Facts Giving Rise to Duty. It is also necessary, in cases of this character, that the accused shall have known of the facts making it his duty to act, for a man cannot be said to neglect to perform a duty unless he knows of the condition of things which requires performance at his hands.+17 In some cases, however, it may be a part of his duty to inform himself of the facts so that a failure to do so through culpable negligence would render him responsible.

or child does not render one guilty of homicide, if he is under no legal duty to do so. Thus, in Rex v. Smith, 2 Car. & P. 449, it was held that a person was not responsible for allowing his idiot brother to die of want, though living in the same house, where it did not appear that he had undertaken to support him. See, also, Reg. v. Pelham, 8 Q. B. Div. 959; Reg. v. Shepherd, Leigh & C. 147, 9 Cox, C. C. 123; Reg. v. Saunders, 7 Car. & P. 277.

This principle does not apply where a person has specially undertaken to supply the wants of a helpless person, or has put him beyond the reach of relief from others; and it makes no difference that there is no relationship between the parties. Reg. v. Smith, Leigh & C. 607, 10 Cox, C. C 82.

417 State v. Smith, 65 Me. 257.