be manslaughter; or, if a person in command of a steamboat, by negligence or carelessness unintentionally run down a boat, &c., and the person in it is thereby drowned, he is guilty of manslaughter.2 In like manner, if a person, whether a medical man or not, profess to deal with the life or health of another, he is bound to use competent skill and sufficient attention; and, if he cause the death of the other through a gross want of either, he will be guilty of manslaughter.3 . . . . If a man, in building or repairing a house, throw a stone from it into the street or way, and it hit a person passing, and kill him,—if he did this in a street where many persons were passing, and without properly warning the persons below, he is guilty of murder; if, in a retired place, where no persons were likely to pass, he would not be liable to punishment. If a man, being on a horse which he knows to be used to kick, wilfully ride him amongst a crowd of persons, and the horse kick a man and kill him, the rider is guilty of murder, although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening the persons around him.5 But if a horse run away with his rider, so that he has 1 Rex v. Walker, 1 Car. & P. 320; Rex v. Mastin, 6 Car. & P. 396; Rex v. Grout, 6 Car. & P. 629; Rex v. Timmins, 7 Car. & P. 499; Reg. v. Swindall, 2 Car. & K. 230. * Rex v. Green, 7 Car. & P. 156; Rex v. Allen, 7 Car. & P. 153; Reg. v. Taylor, 9 Car. & P. 672. * Rex v. Spiller, 5 Car. & P. 333; Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Williamson, 3 Car. & P. 635; Rex v. Long, 4 Car. & P. 398, 423; Rex v. Webb, 1 Moody & R. 405, 2 Lewin, 196; Reg. v. Spilling, 2 Moody & R. 107. The Scotch law is the same. 1 Alison Crim. Law, 116. There are some American cases which seem to be a little more lenient to ignorance than these. Commonwealth v. Thompson, 6 Mass. 134; Rice v. The State, 8 Misso. 561. Said a learned English judge: "I call it acting wickedly, when a man is grossly ignorant, and yet affects to cure people, or when he is grossly inattentive to their safety." Parke, J., in Rex v. Long, 4 Car. &. P. 398, 410. See Vol. II. § 605. * 3 Inst. 70; Foster, 263. 5 1 Hawk. P. C. 7th ed. c. 31, § 68. no control over him, and the horse kill or injure a man, the rider is dispunishable." 1 § 230 a. The doctrine of negligence producing death is only one of the illustrations of the broader doctrine of carelessness. It pervades the criminal law in all its departments; applying to all offences where there is room for its application. § 231. Therefore the bare neglect of a legal duty, as of the owner of a river to scour it, whereby the neighboring lands are overflowed, may render the party indictable for a nuisance.2 In like manner, an officer of the law, who keeps a prisoner committed to his custody so negligently that the prisoner escapes, must answer for this neglect as a crime.3 And, on the same principle, a man is sometimes held criminally for the act of his servant; or rather for his own act in respect to his servant; for, as Bayley, J., observed, — “ If a person employ a servant to use alum, or any other ingredient the unrestrained use of which is noxious, and do not restrain him in the use of it, such person is answerable, if the servant use it to excess, because he did not apply the proper precaution against its misuse."4 On the same principle, if a man's servant throws dirt into the street, the master may be indicted for the nuisance.5 And Denman, C. J., once ruled, and the other judges concurred in pronouncing sentence on the conviction following, that the directors of a gas company are an 1 Gibbon v. Pepper, 2 Salk. 637, 1 Ld. Raym. 38. This doctrine of negligence producing death is discussed by Mr. Bennett in 1 Ben. & H. Lead. Cas. 42 et seq.; also, in our second volume, under the title of Homicide. Rex v. Wharton, 12 Mod. 510; post, § 235. 3 4 Bl. Com. 130; 1 Hale P. C. 600; 2 Hawk. P. C. Curw. Ed. p. 198, § 28, 31. Rex v. Dixon, 3 M. & S. 11, 14. One may be liable criminally for the acts of his agent, if he participates in them. Commonwealth v. Gillespie, 7 S. & R. 469, 477. 5 Turberville v. Stampe, 1 Ld. Raym. 264. swerable criminally for a nuisance, where the act is done by their superintendent and engineer, under a general authority to manage the works; being themselves personally ignorant of the particular plan adopted, which in fact is a departure from the originally understood method, while they have no reason to believe this original method has been discontinued.1 In these cases, the real thing punishable in the master is his own carelessness; 2 and, where this element of his own carelessness does not aid the prosecution, the rule is clearly established in the criminal law, that the principal is not answerable for the act of his servant or agent, as in civil jurisprudence.3 We shall return to this matter further on. If one has an ox he knows is wont to gore, and permits him to go at large, and the ox kills a man, the owner is indictable; though Mr. East tells us there is doubt what his precise offence is. "However, as it is agreed by all, such person is at least guilty of a very great misdemeanor."5 So it has been held, that one selling liquor, and permitting it to be drank in his store, is liable criminally for the disorderly conduct, about the store, of those to whom he makes the sales. And if a person sets fire to an outhouse, so near a dwelling-house as to endanger the dwelling, and the latter is burned, this act is deemed in law to be a burning of the latter.7 ત 1 Rex v. Medle, 6 Car. & P. 292. This learned judge observed: "It seems to me both common sense and law, that, if persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants." Ib. p. 299. 2 See Reg. v. Lowe, 3 Car. & K. 123, 4 Cox, C. C. 449, 7 Law Reporter, N. S., 375, and note, 1 Ben. & H. Lead. Cas. 49. 3 Miller v. Lockwood, 5 Harris, Pa. 248; The State v. Dawson, 2 Bay, 360; Hern v. Nichols, Holt, 462; Rex v. Huggins, 2 Stra. 882; United States v. Halberstadt, Gilpin, 262, 270; Hipp v. The State, 5 Blackf. 149; 1 East P. C. 331. * Post, § 235, 236. 5 1 East P. C. 265. The State v. Burchinal, 4 Harring. Del. 572. Gage v. Shelton, 3 Rich. 242. § 232. Again; if a man publishes a libel, the statute law of his State permitting him, when indicted for it, to show in his defence the truth of what he has published, - he cannot take advantage of his own negligence, and introduce evidence. of a floating rumor in the community, he was so incautious as to believe and act upon.1 § 233. While the general principle is, that carelessness, sufficient in degree, is to be regarded in the law as criminal, still it will not always stand instead of the positive or specific intent. There are offences which require a precise and absolute concurrence of the will to constitute them; and here, of course, general carelessness will not do. Thus probably the better opinion is, that perjury is not committed by any mere reckless swearing to what the witness would, if more cautious, learn to be false; but the oath must be wilfully corrupt.2 So clearly a charge of larceny, which requires an intent to steal, could not be founded on a mere careless taking away of another's goods.3 And there are in the law numerous other illustrations of the same sort. § 234. Then, again, the law regards carelessness as being, what it is in fact, less intensely criminal than an absolute intention to commit crime. Thus, as Blackstone observes, "officers who, after arrest, negligently permit a felon to escape, are punishable by fine; but voluntary escapes, by consent and connivance with the officer, are a much more serious offence;" the rule in the latter case being, that the guilt of the officer takes the same grade, as treason, felony, or misde 1 The State v. White, 7 Ired. 180. And see Graves v. The State, 9 Ala. 447; Mitchell v. The State, 7 Eng. 50; Butler v. McLellan, Ware, 219. 2 See 1 Hawk. P. C. Curw. Ed. p. 429, § 1, 2; United States v. Shellmire, Bald. 370, 378; The State v. Cockran, 1 Bailey, 50; United States v. Babcock, 4 McLean, 113. Contra, Commonwealth v. Cornish, 6 Binn. 249. See also Vol. II. § 881-883. 31 Hale P. C. 507. meanor, and merits the same punishment, with that of the party under detention. So in felonious homicide, the killing is sometimes either murder or manslaughter, according as the act producing the death was directly intentional, or careless.2 § 235. We shall have frequent occasion in these pages to allude to the maxim, that the law does not notice small things.3 This indeed is a branch of the doctrine, already discussed, that judicial tribunals do not take cognizance of all wrongs. It follows from this maxim, that there may be a degree of carelessness so inconsiderable that the law will not make any account of it as criminal. We may not find it easy, on principle, to show the distinction between the less and greater degrees; and, when we seek for it in authority, the line appears there to be angular, variable, and uncertain. Thus, not every degree of carelessness in a medical man will, if death ensue, render him liable for manslaughter; it must be gross; or, as more strongly expressed, the grossest ignorance or most criminal inattention. In respect to persons generally who cause death in pursuing their lawful business, the criterion is said to be, "to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct;"7 yet we may doubt, on the authorities, whether this expression is not a little too strong 1 4 Bl. Com. 130; 1 Hale P. C. 600; 2 Hawk. P. C. Curw. Ed. p. 196, 197, § 22, 30, 31. See Vol. II. c. 55. 2 Bl. Com. 192; Rex v. Hazel, 1 Leach, 4th ed. 368, 1 East P. C. 236. And see People v. Enoch, 13 Wend. 159, 174; Oliver v. The State, 17 Ala. 587; Commonwealth v. Keeper of the Prison, 2 Ashm. 227. 3 Post, § 320-324. * Ante, § 5, 6, 226. 5 Rex v. Long, 4 Car. & P. 398; Rex v. Van Butchell, 3 Car. & P. 629. Rex v. Williamson, 3 Car. & P. 635. And see, as to ignorance, ante, § 230, note. 1 East P. C. 262. And see, as to what is sufficient carelessness, Reg. v. Conrathy, 2 Crawf. & Dix C. C. 86; Rex v. Waters, 6 Car. & P. 328; Rex v. Conner, 7 Car. & P. 438; The State v. Hildreth, 9 Ired. 440; Matheson's case, 1 Swinton, 593. |