Lewis v. State , 72 Ga. 164 ( 1884 )

Hall, Justice.

1. “Heath ensuing in consequence of the wilful omission of a duty will be murder; death ensuing in .consequence of the negligent omission of a duty will be manslaughter.” In Rex vs. Hughes, Lord Campbell, delivering the opinion of the court of criminal appeal, said: “It has never been doubted that, if death is the direct consequence of the malicious omission to perform a duty, as of a mother to nourish her infant child, this is a case of murder. If the omission was not malicious, and arose from negligence only, it is a case of manslaughter.” Roscoe’s Cr. Ev., 723, and cases cited. Where a sick or weak person is exposed to cold, with an intent to destroy him, this may amount “ to wilful murder, under the rale that he who wilfully.and deliberately does any act which apparently endangers another’s life, and thereby occasions his death, shall, unless he clearly prove to the contrary, be adjudged to kill him of malice prepense." Ib., and citations. Cases have arisen under this principle, where apprentices and prisoners have died in- consequence of the want of sufficient food and necessaries, and where the question has been, whether the law would imply such malice in the master or jailer as is necessary to make the offence murder. A husband and wife were both indicted for the murder of a parish apprentice bound to the former. Both the prisoners had used the deceased in a most cruel and barbarous manner, and had not provided him with sufficient food and nourishment; but the surgeon who opened the body deposed that, in his opinion, the boy died from debility and want of proper food and nourishment, and not from the wounds he had received. Lawrence, J., upon this evidence, was of opinion that the case was defective as to the wife, as it was not her duty to provide the apprentice with food, she being the servant of the husband, and so directed the jury, who acquitted her, but the husband was found guilty and executed, Ib., 724 and citations.

“ Huggins, the warden of the Fleet, appointed Gibbons his deputy, and Gibbons had a servant, Barnes, whose duty it was to take care of the prisoners, and particularly of one Arne. Barnes put him into a newly-built room, over a common sewer, the walls of which were damp and unwholesome, and kept him there forty-four days without fire, chamber-pot, or other convenience. Barnes knew the state of the room, and for fifteen days, at least, before the death of Arne, Huggins knew its condition, having been once present, seen Arne, and turned away. By reason' of the duress of imprisonment, Arne sickened and died. During the time Gibbons was deputy, Huggins sometimes acted as warden. These facts appearing on a special verdict, the court were clearly of opinion that Barnes wafe guilty of murder. They were deliberate acts of cruelty and enormous violations of ’ duty reposed by the law in the ministers of justice, but they thought Huggins not guilty,” because he had only seen the deceased once during his confinement, and that, from this alone, it could not be inferred that he knew that his situation was occasioned by improper treatment or that he consented to its continuance. He knew nothing of the circumstances under which deceased was placed in the room against his consent, or the length of his confinement, or how long he had been without the decent necessaries of life. “It was also material that no application had been made to him, which, perhaps, might have altered the case.” Ib., 725.

Where the death ensues from incautious neglect, however culpable, rather than from any actual malice or artful disposition to injure, or obstinate perseverance in doing an act necessarily attended with danger, regardless of its consequences, “ the severity of the law,” says Mr. East. “ may admit of some relaxation, but the case must be strictly freed from the latter incidents.” 1 East’s P. C., 226 ; Roscoe’s Cr. Ev., 726. These citations have been made almost at random from a vast number of similar cases scattered through the elementary treatises on criminal law and the reports of the decisions upon the subject. The distinction so clearly pointed out by them is made by our own Code, §4327, which provides that where an involuntary killing shall happen in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, the offence shall be deemed and adjudged to be murder.

In the case at bar, this law was admirably illustrated in the able, clear and carefully prepared charge which judge 'Lawson gave the jury. Every phase of the case was presented ; nothing was omitted that should have béen presented, and nothing was presented that ought to have been left out; at least, nothing of which the prisoner could complain.

The only exception which the ingenuity and learning of able aiid zealous counsel could find to it was, that there was error in not “ qualifying it as to the animus; that, if the conduct of defendant did contribute to the death of the child, it was criminal, and she would be guilty of one or the other of the crimes mentioned,—murder, voluntary or involuntary manslaughter,” and “ if his. death resulted, either proximateiy or remotely, from hér conduct in the case, then she is guilty of some crime.” When taken in connection with the context, it will be readily seen that this exception is not well founded. The charge is full and explicit as to the animus required to constitute crime in the accused.

2. There was no error in rejecting the sayings of the defendant made during the continuance of the cruel treatment of the deceased, when offered by her to ac'counWor the scars and other marks of violence and hard usages which appeared upon his person. She could not be permitted thus to fabricate testimony in her own favor. Mitchell vs. The State, 71 Ga., 128.

3. This verdict was not only sustained, but, in our.opinion, required by the evidence. We cannot enter into its heart-sickening and revolting details, nor do we trust ourselves to characterize it by any general description, lest we might appear to be indulging in invective and denunciation, rather than temperate and measured reflections, indispensable to judicial fairness or calm deliberation. The jury, in recommending that she be imprisoned in the penitentiary for life, “ seasoned justice with mercy,” which, if not perverted and misapplied, was at least :£ strained to its utmost tension.” If they erred at all, they erred on the side of safety; perhaps in deference to her sex, and because they thought it was better that ninety -nine guilty persons should escape than that one innocent person should suffer. They Avere more lenient to her than she seems to have been to this dependent and helpless child.

Judgment affirmed.