Cowley v. People — 8 Abb. N. Cas. 1

Majority

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COWLEY v. PEOPLE.

N. Y. Supreme Court, First Department; General Term,

May, 1880.

Headnote

Indictment.—Pleading.—Cruelty to Children.—Evidence.— Experts.—Photographs.—Appeal.—Cross-Examination.—Names.—Variance.—Intent.

Where the offense charged in an indictment is one which is accomplished by several acts at separate times, it may.be stated to have been done on one day named.^[4]

Thus in an indictment., under the act to prevent and punish wrongs to children (L. 1876, p. 95, c. 122, § 4), for endangering the health of a child by a series of omissions to provide proper food and sustenance and medical attendance during a considerable period of time,—Held, that it was proper to charge in the indictment that the offense was committed upon a particular day, after the consequences of the neglect were developed.

In a prosecution under that act, the testimony of experts is proper as-to the physical condition of the child, as well as evidence as to the food supplied, and its general mode of life as directed by the accused.

Testimony as to the resulting condition of the child is not inadmissible merely because witness first saw him some days after he had been taken from the charge of the accused.

Photographs of. the child, taken within a reasonable time after his removal from the charge of the accused, are admissible to show his physical condition at or about the time of his removal, although taken for the purpose.

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The admission of testimony for the prosecution, which, abstractly considered, was objectionable at the time of its introduction, is not ground for reversal, if, by evidence afterward given on further defense, it became important as rebutting testimony; and if, by reason of other evidence, it could, not have worked to the prejudice of the accused.

The defense having introduced evidence of the general good condition of children under care of the accused, other than the one named in the indictment, the people have a right to give evidence in rebuttal on the same point.

In such a prosecution, cross examination of the accused, as to his wife’s means and property, and his own private independent business relations having no immediate connection with the offense charged, —Held, not beyond the limits' of cross-examination.

An indictment is not affected by variance or misnomer in the name of a person other than the accused mentioned therein, if either of the two names by which the person is designated is one by which he is commonly known.^[4]

The law imposes upon one receiving a child into his custody the duty of furnishing such reasonable, proper food, clothing, care and medical attendance as is reasonably necessary and proper to prevent his life from being injured; and if he willfully neglect to do so, and the life of the child be thereby endangered, or his health injured, he is guilty of a violation of the statute to prevent and punish wrongs to children.

If he does not have the means necessary to provide reasonably proper sustenance and medical' care, it is his duty to apply to the proper public authorities for the necessary assistance,, and-if he willfully neglects so to do, to the injury of the child, he is liable to punishment.^[3]

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Proper performance of a duty imposed by law is not dispensed with simply because the person thinks that in doing it in an unauthorized manner, or after his own fashion, he has done the best under the circumstances in his judgment. The question is whether he has been guilty of willful neglect, irrespective of motive or intent to commit a crime.^[4]

When one, accused of a crime, is proven to have done the act charged, , the burden is upon him to satisfy the jury that he did it honestly and without any intention to commit a crime.

Error to the court of general sessions.

The plaintiff in error, Edward Cowley, was indicted in the court of general sessions of the city and county of New York, for a violation of section 4 of chapter * 122 of Laws of 1876, entitled: “An act to prevent and punish wrongs to children.” The indictment contained five counts, but only the first two were submitted to the jury.

The evidence on the part of the prosecution established, that the child was received into the Shepherd’s Fold, an institution for the care of children, under the management of the defendant, in January, 1878, being then in good health and condition ; that on December 26, 1879, the child was taken by the wife of the prisoner, wrapped in a blanket, to Saint Luke’s Hospital, at which time it was in a horribly emaciated condition—the result, as testified to by the physicians who examined it, of starvation. Further evidence was given, showing that the child was fed with improper and insufficient food, that it received no proper care of any kind, and no sufficient medical treatment when ill.

The testimony on the part of the defense was

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• directed to show that the child was properly cared for, and that its emaciated condition was the result of disease, for which the prisoner was not responsible. .

The trial of the case occupied several days.

Recorder Smytii charged the jury as follows :

“ Gentlemen of the Jury: The statute under which this indictment is. found provides that ‘Whoever having the care or custody of any child shall willfully cause or permit the life of such child to be endangered, or the health of such child to be injured, or who shall willfully cause or permit such child to be placed in such a situation that its life may be endangered, or its health shall be likely to be injured, shall be guilty of a misdemeanor.’ The indictment in this case, or that part of the indictment to which your attention is directed, and upon which you have to act, is contained in the first two counts. The first count charges that this defendant, on the 26th of December, in the year 1879, did neglect to provide Louis Kulkusky, otherwise called Louis Victor, of which child he then and there had the care and custody, and who was then in his custody, and was an infant of tender age, to wit, of the age of five years, and to give and administer unto the said child, proper, wholesome and sufficient food, meat, drink, warmth, clothing, bed-covering and means of cleanliness, and did therein and thereby willfully cause and permit the health of said child to be injured against the form of the statute. The second count is substantially like the first, with the exception that it charges that the child Louis Victor was sick and ailing, and that the defendant willfully neglected to provide him with, and to give and administer unto such child, due, proper and sufficient medicine and medical attendance and care while he was so sick, diseased and ailing; and did willfully cause and permit the health of said child to be inj ured. Those are the two counts of this indictment upon which this

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prisoner is to be tried, and upon which your verdict is to be founded.

“ And, gentlemen, before proceeding to charge you with reference to the law which is to govern in this case, it is proper for me to say that this case is to be determined solely upon the testimony of the witnesses that appeared here before you upon the stand. You are not to permit yourselves to be influenced in the slightest degree, either for or against this prisoner, by any other matter or thing than what appears in the evidence given before you upon the trial of this case ; in other words, your minds are not in any respect to be influenced by anything that may have been published, or by anything that may have been said, or by any conversation that you may have heard, in respect to this case. You are to pass upon the guilt or innocence of this prisoner upon the evidence, and upon that alone ; to go beyond that and permit yourselves to be influenced in any way, except by the evidence, would be a violation of your oaths, and would be an act of great injustice, not only to the prisoner, but to the people or the State of New York. Gentlemen, before you can convict the prisoner under either count of the indictment which I have read to you, the prosecution, represented here by the district attorney, must establish, by competent evidence, to your entire satisfaction, beyond a reasonable doubt,—the legal meaning of which I will hereafter call your attention to—that the prisoner had the care or custody of Louis Victor, and that he willfully caused or permitted his health to be injured in the way specified in this indictment. It appears here, gentlemen, and it is not probably dis-. puted, but, however, I leave it to you as a question of fact to determine, that the defendant, for some time prior to the 26th day of December last, was the active manager or representative of the institution called and known as the “ Shepherd’s Fold.” The object of that

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institution, as described in the certificate of its incorporation, to which your attention was called yesterday, was “the receiving and adopting children and youth of both sexes, between the ages of twelve months and fifteen years, who are orphans, half-orphans, or otherwise friendless; these to keep, support and educate, apprentice and place out to service, trades and schools. Also to receive such children of poor clergymen for training and education who may be deemed eligible and who shall be approved by the trustees of the Shepherd’s Fold. And to receive other children and youths for education and training, to such extent as in the judgment of the trustees may be expedient.” It further appears, that on January 23, 1878, the defendant received the boy called Louis Victor from his father, and that he thereupon undertook the care and custody of this child, and that such care and custody continued from January 23,1878, down to December 26, 1879, when the child was taken to St. Luke’s Hospital. It also appears by the evidence of the witnesses Fisk and Massie-, that at the time this child was delivered, or immediately before he was delivered to the defendant, he appeared to be in a perfect state of health— very plump, lively, happy and stout. The defendant also testifies as to the condition of the child at that time. My recollection is that he read from his book of admissions, ‘that the child had a fair complexion, and that he was a promising child, health average, and that he had not the usual sicknesses which children of his age are usually liable to.’ On December 26, 1879, this child was delivered by the defendant’s wife to the authorities of St. Luke’s Hospital, and was received Into that institution by Dr. Ridlon, the physician in charge. Dr. Ridlon, in his testimony, which you will recollect, describes his condition on December 26,1879, when he received him, as follows: ‘ He was very much emaciated about the head and arms and body ;

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he was simply skin and bones ; there was no signs of any fat or muscular development. About the thighs, legs and feet there was a great deal of oedema, that is, the tissue between the skin and the muscles was filled with water, so that if you pressed upon it with your finger it leaves an impress which would appear as if you pressed into putty, and which disappears in a very little time. It is one of the symptoms of great emaciation. He was very pale ; on the tarsus of his left foot there was an ulcer as large as a quarter dollar, which was dry and of a dark reddish brown color. There was a small bed-sore over the left hip bone, and two or three small abrasions along the spinal column where the hips stuck out. He was very stupid ; he made, during the time I was examining him in the office in the presence of Mrs. Cowley, no cry, or noise whatever, and after he was taken to the ward he continually cried for food, especially for meat, when any one was near him. He was pale, not of a waxy white hue, but simply dark, pale, bloodless hue. He said nothing beyond calling for food. He did not have indications of having any one of the four constitutional diseases given in the books, and in the opinion of this witness this condition was simply and wholly due to improper food, and want of a sufficient quantity of food—starvation, in other words.’

“Now, gentlemen, if the testimony of Dr. Hidlon is true, and you believe it as to the condition of this child when he was received into St. Luke’s Hospital, on the 26th of December, 1879, from this defendant or his wife, the first question for you to determine will be by what means was this condition of Louis Victor on that day as described by Dr. Hidlon caused, and by whom was it caused? Was it caused by the administration of innutritions or insufficient food, or want of reasonable and proper medical attendance and care, or was it caused by both ? You have heard the evidence,

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gentlemen of the jury, of the witnesses who have been produced on the part of the prosecution, you have also heard the evidence of the defendant, his wife, and the other witnesses produced by him in respect to the care bestowed by the defendant on this boy, the nature and quantity of the food that was administered to him, the medical attendance that was bestowed upon him, and the account of his condition from the time that he entered that-institution in January, 1878, down to and including the 26th of December, 1879, and it is for you to determine, upon all the evidence in this case, first, as to whether or not the quantity and quality of tile food administered by the defendant to the boy Louis' Victor was sufficient, whether it was good nutritious food, whether it was such food as was fit for him in the condition in which he was described by all the witnesses in this case who have mentioned his condition, and whether this food such as was given to him, caused or procured, or brought about the result described by the witnesses ; and secondly, whether this defendant furnished this child with the necessary medical attendance which his bodily ailings, if you find he had any ailings, required that he should have had, and it is for you to say whether it was sufficient or not.

“ On these questions, gentlemen, you alone are the judges. You alone are to find upon the evidence in in this case, whether the food that was administered to that child was of such a kind and of such a quality, as was necessary and proper for him to receive in the condition in which he was from the time he entered that home, down to and including the 26th of December, 1879. You also have a right in this connection to take into consideration, and to consider the testimony of the medical experts who were examined in this case. I am not going to repeat to you the testimony of any .of these witnesses, because, gentlemen of the jury, you

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have listened to it with patience and attention. It has been fully gone into by the counsel on both sides yesterday, and from the manner in which I saw you watch the different witnesses as they presented themselves upon the stand, it is undoubtedly fresh in your minds and in your recollection. You must take all the testimony into consideration, and give it just such weight as you think it is entitled to, under all the circumstances of this case, for the purposes of enabling you to come to a proper conclusion as to the guilt or innocence of the defendant. I will call your attention merely to one fact, which appears in the testimony of Dr. Hawes, in respect to the amount of medical attendance that was given to this child between July or August, 1879, and October, 1879. It appears in his testimony, if I recollect right, but you recollect better than I do, that the child was brought to him suffering in July or August, 1879; that he prescribed for him on that occasion certain medicines which he described, and that, in addition to the medicine, he prescribed nutritious food and out-door exercise or air. He did not see the child again until he was called to see him in October following ; and one of the questions for you to determine, will be whether that child, between July and October, 18*9, had or had not a sufficient amount of medical care and attention in his then condition, whatever that condition may be as you may find it from the evidence.

“It further appears, gentlemen, in this case, however, I leave it to you to say whether it does or not— my impression is that it appears in this case that from October, 1879, down to the 26th of December, 1879, this child had no medical care or attendance whatever; that is, that he had no attention given to him by any physician. Medicines it appears were administered to-him during that time, and it is a question for you tc determine whether between those two periods, Octo

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ber, 1879, and the 26th ol December, 1879, the condition of that child required medical care and attention and medical skill. Those are all questions, gentlemen, for you to decide and to determine upon all the evidence in this case. It is claimed on the part of the prosecution that the food furnished was insufficient in quantity, and that it was unfit in quality for this child in its then condition, and that the injuries, if you find there were any injuries sustained, were induced by reason of or caused by this insufficient-, innutritions and improper food. It is also claimed on the part of the prosecution that the medical care which was given to this child, and to which I have already called your attention, was insufficient, and that, by reason of insufficient medical care and attention, the health of this child was impaired. Those are questions for you, as I have already stated, to be determined upon the evidence in the case. It is for you to say whether the food was of was not sufficient for this child in its then condition, and whether or not he had sufficient and proper medical care and attention. The defendant claims, however, on the other hand, that during all the time that he had the care and custody of this child, that he furnished him with sufficient food, in both quality and quantity; that after he became sick some time in the summer, or in the early fall of 1879, that he gave him in addition to the food, which was provided for the other children, and of which he seems to have partaken, certain other food of a character which the defendant believed to be nutritious, and fit for the child in his then condition; in other words, both the defendant and his wife claim that they did all that they possibly could do to pre/serve and protect the life and health of this child, while he was in his custody. You have a right, gentlemen, to take the testimony of the defendant, of his wife, and of the other witnesses which he produced for the purpose of

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enabling you to arrive at the conclusion, as to whether or not the statements made by them or the statements made by the witnesses for the prosecution are to be relied upon, because in many instances the testimony on the part of the prosecution, is directly contradictory of that introduced on the part of the defense. This is a question for you to determine. You are also to take into consideration the testimony offered by the prosecution, and the testimony offered by the defendant; to examine it, and you are to determine which of those witnesses has told the truth, and which of those witnesses have described the true state of affairs, as they existed in that place between January, 1878, and December, 1879. You have also, gentlemen, a right to take into consideration in arriving at the amount of credit to be given to these witnesses on both sides, the manner in which they gave their testimony and the situation in which they were placed. You have a right to take into consideration, in the case of those children, their youth ; and all the surrounding facts and circumstances as they have been developed here before you, by the witnesses, to enable yon to arrive at what the exact truth is in this case, and upon these particular questions.

“Now, gentlemen, 1 do not deem it necessary to go at any greater length into the facts than I have already done, because I have neither the inclination to deal with facts, nor have I the legal right to deal with them, except so far as it may be necessary to call your attention to the propositions of law which I intend to lay down for the purpose of guiding you in your deliberations. I have no desire, nor is it my duty to say anything which would have a tendency to influence your mind one way or the other, either for or against this prisoner, or for or against any witness or set of witnesses. Those are matters of which you art the sole judges, and upon you devolves the responsi

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bility of passing upon those questions, and determining them according to the law and your own conscience.

“I charge you, gentlemen, as matter of law :

.“First. That if defendant received Louis Victor into his care and custody, the law imposed upon him the duty of furnishing such reasonable, proper food, clothing, care and medical attendance as was reasonably necessary and proper to prevent his life being endangered or his health being injured, and that, if he willfully, that is intentionally, neglected to do so, and the life of the child was thereby endangered, or his health injured, he is guilty of the offense charged in the two first counts of the indictment. It is for you to say, gentlemen, upon all the facts and all the evidence in this case whether this defendant has or has not complied with the requirement of the law as I have laid it down for your guidance. I charge you further—

“Second. That if the defendant, during the time he had the care and custody of Louis Victor, did not have the means necessary to provide reasonably proper medical.care and attention, food and nourishment to said child, so as to prevent his life being endangered, or his health being injured, it was his duty to apply to the proper public authorities for such public assistance and relief in the premises as was necessary to prevent the life of said child being endangered, or his health injured, and if the prisoner willfully neglected s'o to do, and the child’s life was thereby endangered, or his health injured, he is guilty of the offense charged in this indictment.

“ Now, gentlemen, for the purpose of showing you how far and to what extent the liability of this defendant goes, I call jour attention to a case decided in England in 1875, under a statute which is substantially like the statute under which this, indictment was

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found. In this case, to which I refer, the prisoner was indicted for the manslaughter of Charles Downs ; an infant who, at the time of its death, was a little more than two years old. The child had been ill and wasting away for eight or nine months before his death, and the prisoner had the care and custody of it. The judge instructed the jury that the law cast on the father, who has the custody of a helpless infant, a duty to provide according to his ability what was reasonably necessary for the child, including, if the child was so ill as to require it, the advice of persons reasonably believed to have competent medical skill, and that if death ensued from the neglect of this duty it was manslaughter in the father so neglecting his duty. He also instructed the jury, that he did not think it any defense that the prisoner sincerely believed that he ought not to have provided such advice, nor that he believed that he was doing the best for the child, if he had not in fact the competent skill and knowledge himself, and he submitted the following questions to the jury :

“ 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 %

“ Was the death caused by that neglect ?

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

“Did the prisoner bona fide, though erroneously, believe that medical advice was not required for the child ?

“ Or bona fide believe that it was wrong to call in medical aid ?

“The jury found in the affirmative on each question, and on that verdict, where the jury found that the defendant ‘ bona fide believed ’ that he did everything that was necessary and within his means for his

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child, except to provide medical attention, and that he believed that he should not do it, that he had a conscientious belief against calling in medical advice, yet upon that state of facts so found in his favor, the court directed a verdict to be entered against him, convicting him of manslaughter. The case then went up for the consideration of the full bench, and the chief justice in, delivering the opinion of the court, after referring to the statute, says: ‘ It makes it an offense punishable summarily, -willfully to neglect to provide adequate medical aid for the child. By willful neglect, I understand an intentional and deliberate abstaining from providing the medical aid, knowing it to be obtainable. In the present case '«he prisoner, from motives with which I have nothing to do, did willfully neglect to provide for 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 who caused death, was a willful disobedience of the law, a willful neglect the duty imposed by the statute. It was, therefore, culpable neglect. On that short and distinct ground, I think the conviction must be affirmed.’ I charge you further, that it is a cardinal doctrine of the criminal law, founded on natural justice, that it is the intention with which an act is done or omitted to be done, that constitutes its criminality; the intent and the act must concur to constitute a crime. Yet every sane person must be presumed to intend that which is the ordinary and natural consequence of his own act.

“Fourth. If, therefore, you find upon all the evidence in this case that the defendant did knowing!y, that is intentionally, do what the statute prohibited him from doing, or that he knowingly, that is intentionally, omitted to do that which the law required he should.do, the act itself being unlawful, the law im

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plies a criminal intention on his part to do that which the law says he shall not do, or to omit to do that which the law says he shall do.

“Now, gentlemen, you must satisfy yourselves first, that this defendant omitted to do what the law required he should do, if he did omit to do it, that is, to provide this child reasonable and proper food and medical attendance, and that he did it knowingly. On that point you have a right to take into consideration the defendant’s own testimony on the question of intent. He says, gentlemen, that he did all that he could do, all that he believed it was necessary to be done under the circumstances ; but that will not excuse him, that of itself is not sufficient to excuse this defendant. If he saw this child wasting away day after day for want of food, if he saw its health being impaired day after day, and hour after hour without calling in medical attendance to relieve it from its pains, its sickness, and its distress, and this result was brought about by reason of his neglect to do so, then, gentlemen, the simple fact that he thought he was doing the best that he could do under the circumstances, will be no excuse whatever for his not having complied with the requirements of the law.

“Fifth. The intent must be proved to your satisfaction, as all other material allegations in the indictment. And this proof may be either by direct or indirect evidence, tending to establish the fact, or by inference of law, to be deduced from other facts proved in the case. Intent is frequently a matter of inference and evidence of external or visible acts and conduct which seems to indicate more or less forcibly the particular intention. These are all matters exclusively for your consideration. The question of intent is a question of fact, as I have already stated, to be proved by direct evidence, or to be deduced from all the evidence in this case ; and it is for you to determine from the

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evidence what that intent was. If you are satisfied he willfully omitted to do what the law required him to do, the omission to do so, being in itself illegal, then the burthen rests upon him to satisfy you that he acted honestly, and without any intent to commit a crime. Now, gentlemen, after you have examined all the evidence in this case, and all the surrounding circumstances, and, after having given to it a careful, cool and deliberate examination, you have any reasonable doubt as to the guilt or innocence of this prisoner, that doubt belongs to him, and it will be your duty to acquit. The defendant is entitled to the benefit of any reasonable doubt arising upon the evidence in the case ; and it is incumbent upon the prosecution to bring home guilt to the accused to the satisfaction of the minds of the jury. ‘ The doubt, to the benefit of which the accused is entitled, should be such as rational, thinking, sensible men may fairly and reasonably entertain, not the doubt of a vacillating mind that has not the moral courage to decide, but shelters itself in a vain and idle skepticism; in other words, the doubt to which he is entitled must be such a doubt which men may honestly and conscientiously entertain, and nothing else.’ Now, gentlemen, there is a presumption of law to which this defendant is entitled, that is, he is presumed to be innocent. That presumption lasts until you render your verdict, if you do render a verdict against him, and he is entitled to all the benefits of that presumption. He is not to be tried by prejudice, by public clamor, by anything else except by the legal evidence given in this court, and according to the rules of law as I have laid them down for your guidance. He is also entitled to have you take into consideration, with all the other evidence in the case, any evidence that he may have offered in respect to his good character. You are to consider that as all other evidence in this case. You are to -examine it;

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you are to give him any advantage that arises from the fact, if it is a fact, that he has established good character to yonr satisfaction.

“ Now, gentlemen, I think that I have said all that is necessary for me to say to call your attention to this case, with this exception, that it is an important case. It is an important one to the prisoner; it is an important case to the people of this State. In my judgment the developments made upon the trial of this case will do a great deal of good whatever the result may be. It will be the means of calling the attention of the public who support institutions of this character, to the manner in which they are conducted, and will in-ti nee them to look into the management of them to see whether the moneys bestowed for the purposes of charity, and for benefiting those who are unable to help themselves, are honestly or dishonestly applied. We are-all so much engaged, that while we are perfectly willing to be called upon to give, there are very few of us that devote a moment for the purpose of ascertaining whether what we do give is properly or improperly disposed of. It is important to the prisoner. He is a man occupying the position of a clergyman ; but in that respect, gentlemen, he differs from no other man who is brought here. It makes him no better, it makes him no worse. He is liable to be proceeded against like any other man, who is charged with the commission of an offense, and he must be tried exactly the same way as any other person, and that without any regard whatever to his character as a clergyman. If he is guilty of this offense, then he must be convicted ; if he is innocent, then it will be your duty to say so, and that duty is to be performed, independent of the fact whether he is or is not a clergyman. There are two or three other matters that have been brought into this case, gentlemen, with which you have nothing whatever to do.

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This prosecution is conducted by the properly constituted. public officer of this county. He is responsible for the manner in which he conducts it, and upon him the responsibility rests, and therefore you have nothing to do with anything that was done by the Society for the Prevention of Cruelty to Children. It has no bearing whatever upon this case, and it must not be permitted by you to enter into your consideration, in enabling you to cpme to a conclusion about this case.

“And so, gentlemen, as to another matter which was commented upon yesterday. It was stated that there were twenty-five indictments found against this defendant; with this you have nothing whatever to do ; it has nothing to do with the question of this defendant’s guilt or innocence of this charge, whether there is one or fifty indictments against him is a matter of no importance, and so also as to the fact that he was arrested, and that he was shackled after he was indicted. If he was shackled, those are matters that you have no concern whatever with, and you must not. permit them for one moment to influence you one way or the other in coming to a conclusion in this case.

‘ ‘ The. case is with you. ’ ’

There was a general verdict of guilty, and the prisoner was sentenced to the Penitentiary for one year and to pay a fine of $250.

Other material facts sufficiently appear in the following opinion.

Charles W. Broolce and Ciarle Bell, for plaintiff in error.

The indictment in neither of the counts in question charges the commission of an affirmative act, but declares the offense it attempts to charge as a neglect to do any act necessary to preserve life or health. To do an act comprehends an affirmative, aggressive and positive motion; to neglect to do an

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act comprehends precisely the opposite condition. If the statute declares that a man shall be punished for doing the things he ought not to have done, and there be no alternative provision, surely he does not come within thé proscription or meaning of the statute by leaving the things undone which he ought to. have done. The statute, being entirely penal in its character, must be strictly construed, and cannot be extended by implication (Andrews v. United States, 2 Story, 203 ; Strinson v. Pond, 2 Curt. C. Ct. 502; United States v. Ten Cases of Shawls, 2 Paine, 162 ; Ferris v. Atwill, 1 Blatchf. 151 ; United States v. Wilson, Baldw. 79; The Harriet, 1 Story C. Ct. 251; United States v. Ragsdale, Hemp. 497; Chase v. New York Central R. R. Co., 26 N. Y. 523 ; Strong v. Stebbins, 5 Cow. 211 ; Palmer v. Conley, 4 Den. 375 ). It must be construed in accordance with the necessary implication of its language (Green v. Wood, 7 Q. B. 178; Rex v. Stoke Damarel, 7 B. & C. 569; Lamond v. Eiffe, 3 Q. B. 910; Waller v. Harris, 20 Wend. 561 , 562; Blanchard v. Sprague, 3 Sumn. 279 ; Everett v. Mills, 4 Scott N. C. 531; United States v. Sharp, Pet. C. Ct. 118). A casus omissus can in no case be supplied by a court of law, for that would be to make laws (1 T. R. 52; R. v. Barham, 8 B. & C. 104; Notley v. Buck, Id. 164; Story Confl. of L. 17). An offender who is protected by the letter of a penal statute cannot be deprived of its benefit on the ground that his case is within its spirit (United States v. Ragsdale, supra; Bacon's Maxims, 51, 58, 59; Fletcher v. Lord Sondes, 3 Bing. 580; Foster, 424; 2 Hawkins, c. 25, § 110). “Where a particular statute is relied on in an indictment, the words of the act must be conformed to in the indictment” (Updegraff v. Commonwealth, 6 S. & R. 5). “Where the language of the statute is descriptive of the nature of the offense, it is necessary to specify it in the particular words

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of such statute” (State v. Stedman, 7 Porter, 495; Bell v. State, 5 Engl. [Ark. ] 536; United States v. Dickey, 1 Morris, 412 ; Camp. v. State, 3 Kelly, 417; State v. Absence, 4 Porter, 397; State v. Eldridge, 7 Eng. 608; State v. Mitchell, 6 Mo. 147 ; Howell v. Commonwealth, 6 Gralt. 664; Hamilton v. Commonwealth, 3 Penn. 142 ; Commonwealth v. Tuck, 20 Pick. 356 ; Queen v. Downs, 1 Q. B. Div. R. 25). In misdemeanors distinct offenses, when charged, may be proved, but not otherwise (2 Burr. § 984). Evidence of a distinct substantive offense cannot be admitted in support of another offense (State v. Wisdom, 8 Porter, 511; State v. Whittier, 8 Shep. 341; Kinchillow v. State, 5 Humph. 9 ; 2 Russ. on Crimes, 772; R. v. Mobbs, 6 Cox C. C. 223; Commonwealth v. Miller, 3 Cush. 243 ). The admission of photographs was matter of grave and serious error. The case of Ruloff v. People ( 45 N. Y. 224 ) is not a precedent applicable to the case. The Christian and surname's of the parties must be stated if the injured party be known (Wills v. People, 1 Scam. 399 ; State v. Irvin, 5 Blackf. 343 ; 3 Camp. 264, 265; 2 Russ. 1313; Hawk. b. 2, c. 25, § 71; Burns Justice, Indictment; Crow C. C. 36; Sum. 95; Plowd. 85; Keil. 2 5; Dyer, 99; Zellers v. State, 7 Porter, 659; Gardner v. State, 4 Id. 632; Holt C. N. P. 595; Commonwealth v. Morse, 14 Mass. 217 , 218; Commonwealth v. Mauley, 12 Pick. 173 , 174; 2 East P. C. 531, 780; 2 Hale, 244, 245; State v. Martin, 2 Murphy, 533). Where the indictment describes the person injured by name, or declares him to be unknown to the grand jurors, such allegation is materia], is traversed by the plea of “not guilty,” and must be sustained, and may be rebutted by proof (Cameron v. State, 8 Engl. (Ark) 712; Barkman v. State, Id. 703; Hurd Crim. Law, 32, 33; R. v. Clark, Russ. & R. 358). Where the indictment charged that the defendant assaulted Silas Melville

p. 21

with intent to kill, and the proof was that his name was Melvin, it was held a fatal variance (State v. Curran, 18 Mo. 320 ; State v. Havely, 21 Id. 498; Barnes v. People, 18 Ills. 42; Cruikshanks v. Comyns, 24 Id. 602; R. v. Durore, 1 Leach, 352; R. v. Jenks, 2 East P. C. 514). The defendant could not be indicted and convicted for a resultant condition, which he had not the power to avoid (Roscoe's Crim. Ev. 557; Regina v. Chandler, Dearsley's Crown Cases, 453).

Benjamin K. Phelps, district attorney, for defendants in error.

The photographs were properly received (Ruloff v. People, 45 N. Y. 213 ; Cozzens v. Higgins, 1 Abb. Ct. App. Dec. 453 ; S. C., 33 How. Pr. 436 ). There could be a conviction without proof of a specific act working the result of injury to the child’s health or danger to its life, and a series of acts of neglect were sufficient and competent to sustain the charge in the indictment (1 Bishop Crim. Pro. § 397; Rex v. Moore, 2 Leach, 575). If the indictment charges neglect in more than one form in the same count, it is in accordance with all the precedents (Rex v. Friend, Russ. & Ry. 20; Reg. v. Rugg, 12 Cox, 17). There was sufficient evidence as to the correctness of the name of the injured child in the indictment (R. v. Nortin, Russ. & Ry. 510; Rex v. Williams, 7 Carr. & P. 298; Kennedy v. People, 39 N. Y. 245 ; State v. Gardiner, Wright, 392). The jury should find the neglect to be willful, that is, knowing and intentional. Nothing more was necessary (People v. Brooks, 1 Den. 457 ; Commonwealth v. Green, 1 Ashmead, 299; King v. Holland, 5 Durnf. & East, 618). If the defendant had not the means to provide for the boy, he should-have applied to the proper authorities (Queen v. Mabbett, 5 Cox C. C. 339). That he thought he was doing the best he could, does not excuse him (Queen v. Downs, 13 Cox C. C. 111).

The plaintiff in error was indicted in the court of general sessions, for a violation of the fourth section of chapter 122 of the laws of 1876, entitled “An act to prevent and punish wrongs to children.” The language of the section is as follows :

“Whoever, having the care and custody of any child, shall willfully cause or permit the life of such child to be endangered, or the health of such child to be injured, or who shall willfully cause or permit such child to be placed in such a situation that its life may be endangered, or its health shall be likely to be injured, shall be guilty of a misdemeanor.”

The indictment contained five counts ; but the first and second counts only were resorted to, and these contained the necessary charges to bring the accusation within the section referred to, and are as follows :

“ That Edward Cowley, late of the nineteenth ward of the city of New York, in the county of New York aforesaid, being an evilly minded and cruelly disposed person, and well knowing and intending the premises hereinafter set forth, unlawfully, willfully and wickedly, on the twenty-sixth day of December, in the year of our Lord one thousand eight hundred and seventy-nine, at the ward, city and county aforesaid, did neglect to provide a certain child, then and there known by the name of Louis Kulkusky, otherwise called Louis Victor, and of which child he then and there had the care and custody, and which said child was then and there in his custody, and was an infant of tender age—to wit, of the age of five years—with, and to give and administer unto the said child proper, wholesome and sufficient food, meat, drink, warmth, clothing, bed covering and means of cleanliness, and did therein and thereby willfully cause and permit the health of said child to be injured, against the form of the statute in such case made and provided, and against

p. 23

the peace of The People of the State of New York and their dignity.

“ Second Count.—And the jurors aforesaid upon their oaths aforesaid do further present: That after-wards, to wit, on the day and in the year aforesaid, at the ward, city and county aforesaid, the said Edward Cowley unlawfully, willfully and wickedly a certain child then and there known by the name of Louis Kulkusky, otherwise called Louis Victor, and of which child he then and there had the care and custody, and which said child was then and there in his custody, and was an infant of tender age—to wit: of the age of five years—and which said child theretofore has been and then was diseased, sick and ailing in its body and limbs, and then and there required proper medicine and medical attendance, did willfully neglect to provide with, and to give and. administer unto said child due, proper and sufficient medicine and medical attendance and care, when so as aforesaid diseased, sick and ailing, and did therein and thereby willfully cause and permit the health of said child—to wit: the infant aforesaid—to be injured, against the form of the statute in such case made and provided, and against the peace of The People'of the State of New York and their dignity.”

Upon the trial numerous exceptions were taken, both to the admission and exclusion of evidence and to the rulings of the Recorder who presided, upon motions made and requests to charge.

The prominent objections to the indictment, as they are understood, are that under the statute it was necessary to charge the commission of an affirmative act by which the offense was demonstrated, and that it charged the commission of the offense on a particular day, when, in point of fact, if committed, it was the result of a series of acts continuing and together resulting in the offense.

p. 24

The first of these objections is utterly untenable upon any fair construction of the statute or the object which it was designed to accomplish. Its language, as we have seen, is that whoever having the care or custody of any child shall willfully cause or permit the life of such child to be endangered or the health of such child to be injured, or who shall willfully cause or permit such child to be placed in such a condition that its life may be endangered or its health be likely to be injured, shall be guilty of a misdemeanor. And the exposure may necessarily result from a continuing cause day after day, the aggregrate results of which create the danger contemplated, or the health to be injured or likely to be injured.

The allegations in the indictment were, as we have seen, that the plaintiff in error did “ neglect to provide a certain child, then and there known by the name of Louis Kulkusky, otherwise called Louis Victor, and of which child he then and there had the care and custody, and which said child was then and there in his custody, and was an infant of tender age—to wit, of the age of five years—with, and to give and administer unto the said child, proper, wholesome and sufficient food, meat, drink, warmth, clothing, bed covering and means of cleanliness, and did therein and thereby willfully cause and permit the health of said child to be injured.”

And in the second count with “willful neglect to provide with, and to give and administer unto said child, due, proper and sufficient medicine and medical attendance and care, when so as aforesaid diseased, sick and ailing, and did therein and thereby willfully cause and permit the health of said child—to wit: the infant aforesaid—to be injured.”

These allegations were distinct as to the elements of the defense, namely, a willful omission to give the boy proper and wholesome food, and a willful neglect to

p. 25

provide and give to him. when sick, proper medicine and medical attendance.

•These willful omissions were of acts which the plaintiff in error was obliged by his custody of the child to perform from the trust reposed in him, and which he undertook to discharge, and were within the meaning of the statute, and the discharge of which it was designed to enforce and therefore to secure. The charge rested upon affirmations of negative acts on the part of the plaintiff in error, willfully omitted, for which he was called upon to answer.

The plaintiff in error was not put upon trial for the omission to perform them for any one day, but for a series of omissions continuing over a period of time which resulted in endangering the health of the boy named.

Under such circumstances it was proper to charge in the indictment that the offense was committed upon a particular day, after the consequences of the neglect were developed.

Where the Offense charged is one which is accomplished by several acts at separate times, they may be stated to have been done at the same time (Bish. Crim. Proc. § 397, n. 4; Reg. v. Moore, 2 Leach, 575).

The evidence given on the trial showed, as already suggested, that the injury to the health of the boy Louis Victor was the result of several acts at separate times which the plaintiff in error was called upon to perform, but omitted to accomplish. If it were necessary to allege in the indictment the omission on each particular day, it would, in effect, present a recapitulation of the evidence by which the offense was to be established upon the trial, which is not demanded by any precedent, and would lead to great prolixity and confusion. It is the result of these several acts which the statute is designed to punish, and it is the result therefore which establishes the offense.

p. 26

For .these reasons it is thought that the indictment is not assailable, and that the objections to it cannot be sustained.

The. prosecution gave evidence showing the condition of the boy and the manner in which he was cared for whilst in the charge of the plaintiff in error, and the consequences of it, and left it for the jury to determine, under proper instructions, whether the plaintiff in error had discharged the duty imposed upon him by the statute and this necessarily involved the consideration of what he had omitted to do, and the result of his conduct if willful. It became necessary, also, in order to establish the offense, to go into details with regard to the. omissions set out in the indictment, and this properly required the examination of experts as to the physical condition of the boy, as well as the food supplied, its quantity, quality, and his general mode of life as directed, supervised and controlled by the plaintiff in error, in whose custody and under whose management he had been placed-with the consent if not at the solicitation of the latter.

The prosecution was met almost step by step with ' opposition from the counsel of the plaintiff in error, who displayed great zeal in the defense of their client and great devotion to his cause. No opportunity seems to have been omitted to present an objection, which was generally followed by an exception. Some of the exceptions, however, have not, been presented for consideration on the brief submitted, and upon examination they are deemed to possess no merit.

In disposing of the exceptions which were fully presented, it is deemed the better plan to take them up in the order in which they were considered on the argument.

The first of these arises upon a question which was asked of Anne Massey, a witness for the" people. It appears by the evidence that the boy was taken to St.

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Luke’s Hospital on December 36, 1879. The witness 'mentioned testified that having made inquiry at the Shepherd’s Fold, on the Sunday after Christmas day, about the boy, and having ascertained that he had been taken to the hospital, she went there to see him and did see him. She had also stated that she had seen him two years before that time, and was asked the following question :—“Did he look the same that he did when you saw him before ?” This question was objected to, arid a discussion ensued which resulted in the court’s determining to allow it to be put, the witness having seen the boy three days after he was taken to the hospital, and the court having expressed the opinion that it was competent to show what the condition of the boy was at that time, namely, within three days after he was delivered to the hospital by the plaintiff in error, or his agent. But the record shows that this question was not answered, and it was not repeated. The question which followed the discussion referred to was this :—“What was his condition when you saw him in the hospital ?” to which no objection was made, and which was an entirely different question from the one objected to. The exception considered therefore amounts to nothing.

The next exception relates to the evidence of a physician (Dr. Ridlon) who was present at St. Luke’s Hospital when the boy was brought there on the 36th of December, 1879, and he testified that he examined the child on the day of his arrival.

He was asked to state what that examination disclosed, which was objected to, allowed and exception taken. He was also asked the following question:— “ Will you state to what in your opinion as a medical man the condition of the child was owing ?”

This testimony was objected to for reasons similar to those which were advanced in support of the objection to the question put to the previous witness, Anne

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Massey, and we find on looking into the brief on behalf uf the plaintiff in error a statement that the answer of the witness, responsive to the question, clearly indicated the impossibility of such a condition being attributable properly to the act or acts of any one day, as charged in the indictment.

It thus appears that the objection was founded upon what is regarded as a fallacy in reference to the form of the indictment itself, resting in the supposition that the offense, having been charged to have been committed upon one day, could not be established by showing the result of several acts leading to its commission. There can be no doubt that the evidence was proper on the part of the prosecution, because it was the condition of the boy resulting from a series of acts for which the plaintiff in error was arraigned. The exception is therefore wholly untenable.

The next exception springs from the examination of a witness named Fanny McCurdy, called for. the prosecution, who, after testifying to her residence in the Shepherd’s Fold, was interrogated in regard to the duties imposed upon her, in the following question: — “ Now, what did you do at the Fold during the last year?” This was objected to. But this question, though it might, abstractly considered, be objectionable, is stripped of all obnoxious features because it was preliminary to other questions, which led to the facts that she had charge of the meals that were prepared for the children, and did some washing for them, and from her position was enabled to state very important facts which sprung out of the duties which she was assigned to discharge. Her testimony, thus inaugurated, demonstrated the general management of the children, their food, clothing and the measures adopted for their cleanliness. As these elements were part of the prosecution, as already suggested, it is impossible

p. 29

to conceive how the evidence elicited could have been excluded.

The next exception arises from the testimony of Dr. Jacobi, who testified that on or about the 8th of January, 1880, about two weeks after the boy had been removed from the Shepherd’s Fold, he saw and examined him. He was asked a hypothetical question, the object of which was to ascertain whether feeding a child on the diet which was named in the question would tend in any measure to account for the condition in which the boy Victor was found. The question was objected to upon the- proposition, seemingly, that the hypothesis assumed in. it was in nowise in accordance with the evidence as to the food provided for the boy, and because it referred to the child’s condition at a time at least twelve days subsequent to his removal from the custody of the plaintiff in error, and when he had been provided with food of an entirely different character. The objection does not rest upon any valid ground. It contained" a correct statement of facts which for a long time marked the treatment of the boy, prior to his.removal to the hospital, and Vhicli, it was claimed on the part of the prosecution, and apparently demonstrated, had led to the condition in which the boy was then found ; because there is no pretense that he had at that time recovered his health.', or was in any different condition than that in.whiaS^lie was when he was taken to the hospital. The proVcution had the undoubted right to show that the condition of the boy was the result of the unwholesome and improper diet which had been given.him. Indeed, if they could not be permitted to prove this, and by experts, it would necessarily involve the abandonment of further prosecution of the crime charged against the plaintiff in error, inasmuch as no other act of cruelty, except the omission to provide him with proper

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medical attendance and care, were set up against the prisoner.

The next exception relates to certain photographs of the boy which were taken about January 6, and to which the attention of various witnesses was called, and which were admitted in evidence under exception. The value of this objection, if it have any, cannot be discovered. The boy had been placed in the hospital for treatment, and it is apparent from the evidence in the case that at the time of the trial his condition was improved. The object of taking the photographs was to secure an accurate representation of his physique, at or about the time of his removal to the hospital, and in order to perpetuate it, so that if any change for the better occurred, it would not be impossible to illustrate his condition at that. time. The use of photographs has become a very important factor in the administration of justice, and they have been employed, and their use justified, in several cases. In connection with scientific exposition, their value cannot be over-estimated, and on the question of identity, to which their use in this case assimilates and is closely allied, their importance is manifest (see Cozzens v. Higgins, 1 Abb. Ct. App. Dec. 451 ; Ruloff v. People, 45 N. Y. 213 ). The exception, thus considered, is therefore worthless.

The next exception occurs in the evidence of Stephen Hubbard, a police officer, who, on January 17, visited the Shepherd’s Fold, and stated the result of his observation upon the premises when he went there on that day. This testimony was perhaps, abstractly considered, objectionable at the time of its introduction ; but not seriously so, because what he stated as to the condition of the premises and the appearance of the children had been substantially stated by several witnesses, and thus bore upon the treatment of the boy Victor, and by the evidence introduced on the part of the defense, became important as rebutting

p. 31

testimony. It is quite clear, therefore, that under all the circumstances, it could by no possibility have worked to the prejudice of the plaintiff in error.

The next exception in order arises from the motion of the plaintiff in error, that the court direct an acquittal upon two grounds, stated as follows :

“First, because, under the requirement of the fourth section of the act, there has been no proof of any act charged, either in the first or second count of the indictment, which counts alone are on trial; that, on any given day, as the statute seems to require, and as the pleading alone refers to, the act was done ; and secondly, upon the ground that the evidence is legally insufficient, even if your Honor shall deny the motion on the first ground, to warrant the jury under any circumstances in rendering any other verdict but one of acquittal, or to warrant the court in entering or rendering judgment upon any verdict.”

What the counsel for the plaintiff in error regards as his first proposition on this motion, seems to rest in part upon the fallacy heretofore considered, in reference to the indictment charging the offense to have been committed upon a particular day, and upon the further suggestion that the evidence was insufficient to justify a verdict. What is regarded as the second proposition it is a little difficult to understand, but it seems to rest upon the ground that the case of the prosecution was not proved beyond a reasonable doubt, which the law requires, and is therefore a repetition, in part, of the first.

The evidence in the case would not justify its withdrawal from the jury. On the contrary, a perusal of it cannot fail to convince the legal mind of the necessity and the justice of calling upon the plaintiff in error to respond to the grave omissions charged against him, and established beyond reasonable doubt.

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It is deemed unnecessary to say anything more about this proposition than this.

The next exception which follows arises from the examination of a witness, Mrs. Ferris, who resided on the'premises of which the Shepherd’s Fold was a part, and who dwelt in it six months of the time when the boy, young Victor, was there, and who knew him and all the other children, and who was asked the following question:

Q. “ Mrs. Ferris, during the time you were in the house, and Louis Victor was there, did you hear Louis Victor, or any of the other children in that house, at any time, complain of hunger or insufficiency of food S”

It appears by the record that before this question was asked of Mrs. Ferris, she had been asked, “Did you ever hear any complaint of hunger ?” In reference to which a discussion took place, and during which the district attorney, who had arrested the answer to the question, said, “We offered to prove that these children complained of hunger, and it was excluded. We simply want fair play.” To which Mr. Brooke responded, among other things: “I offer to show by her, that neither Louis Victor, nor any of the children, made complaints of. hunger.” Whereupon, the court decided to allow the question, but to confine it to Louis Victor. Thereupon, the question already set out was asked, and an exception was taken to the limit placed upon it by the learned court. The fact which the question is designed to establish was, it must be remarked, stated by several witnesses, called on behalf of the plaintiff in error, and by himself also, that no complaint was ever made of hunger ; and it may be said, therefore, that the omission of this witness to testify to the fact, if such an omission really occurred, could not have prejudiced the plaintiff.

But the fact appears by the record, that the witness

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stated, before the question was asked, that she never heard any complaint of hunger. It is stated in the following response to the question given :

Q. Were the girls or the children in the habit of going into your room repeatedly ?

A. Yes, sir ; they came into my room and was just as social around me, from the oldest to the youngest. They were there with me daily and coming in at night, often the oldest girls, Bessie and Fanny; and that was one thing that I always thought was mysterious, that if they were starved they never told me they were hungry.

There was no motion made to strike out this evidence, and therefore the witness had already testified to the fact that the children who were in the habit of coming into her room repeatedly, never told her that they were hungry, and consequently never complained to her that they were hungry.

The next exception arises from the testimony of Walter A. Hawes, who was interrogated on his cross-examination as to some children brought to his office on Friday, January 16, and was asked in what condition they were when they were brought; and it was objected to on the ground that it was long after the time when Louis Victor was taken away. But Mr. Hawes was examined on the part of the plaintiff in error, and the defense had gone into evidence to show the general condition of the children, and sought to establish that it was good; and consequently the facts elicited affecting that element of the defense were perfectly proper, and the exception is valueless.

And this view affects another exception, not the next in order, relating to a question as to the condition of certain of the children, upon the examination of the defendant himself, which was proper for the reasons assigned, in reference to the examination of Dr. Hawes. The subject of the general condition of the children

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was introduced into the defense, and it was the right of the people to show that that condition was not what it was represented to be by examination of the witnesses with that view.

The next exception in order, is that springing from the evidence of the plaintiff in error, who was on cross-examination interrogated as to his wife’s means and property, and his own private independent business relations and connections, all of which was admitted under objection and- exception. It is true that these particular subjects formed no immediate connection with the offense Of which he stood accused, but were seemingly within the limits of a cross-examination. It must be remarked, however, that the answers given were not at all prejudicial to the plaintiff in error, although it is not necessary to rest the justification of the course pursued by the recorder in admitting the evidence upon that ground. It was a cross-examination, and might elicit something affecting the credibility of the witness.

It is impossible to say, upon an examination of the evidence referred to, that it was not fairly within the limits of cross-examination, which to a great extent rests-upon the discretion of the presiding judge, and which cannot be assailed unless it is clearly without the pale of a just and discriminating discretion.

The next exception in order arises from the testimony of Anne Massey, who was recalled, and who gave proof showing that she was the sister of the stepmother of the boy, and identified an envelope in the handwriting of the father of the boy Victor, described as Louis Kulkusky, otherwise called Louis Victor, which the father had written as his proper name, in order that she might be able to write to his sister in England. The envelope, after identification by the witness, was offered and received in evidence. It contained the name and address :

p. 35

“ Kuitakowski ;

44 B. Hillrop Crescent,

Camden Road W.

London, England.”

eAfter this testimony had been given, the counsel for. the plaintiff in error moved the court to acquit him because of a fatal variance between the indictment, and the proof in the description of the person alleged to have been the subject of the injury described in the indictment. This motion was denied, and exception taken. The proof of the envelope by no means- established that the child was not known as Louis Kulkusky. The evidence established conclusively, that the boy was known as Kulkusky, and that was suffix cient to sustain the indictment (Rex v. Norton, Russ. & Ry. 510; Rex v. Williams, 2 Carr. & P. 298).

It must be said further, that whether the first name' was correct or not, the name Victor was one by which the child was known in the Fold, and known to the plaintiff in error, and if either of the names was one by which the child was commonly known, it was sufficient. On this subject there was no doubt (Kennedy v. People, 39 N. Y. 145 ; State v. Gardner, Rice, 392).

The remaining exceptions relate to the charge of the learned recorder, and the requests to charge. The. law of the case, as expressed by him, rested upon the propositions contained in the following extracts, the doctrines of which were elaborated with reference to, the evidence and its consideration:

“First. That if defendant received Louis Victor into his care and custody, the law imposed upon him the duty of furnishing such reasonable, proper food, clothing, care and medical attendance, as was reasonably necessary and proper to prevent his life being endangered, or his health being injured, and that if he willfully, that is, intentionally, neglected to do so,

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and the "life of the child was thereby endangered, or his health injured, he is guilty of the offense charged in the two first counts of the indictment. It is for you to say, gentlemen, upon all the facts and all the evidence in this case, whether this defendant has or has not complied with the requirement of the law, as.I have laid it down for your guidance. I charge you further:

“Second. That if the defendant, during the time he had the care and custody of Louis Victor, did not have the means necessary to provide reasonably proper medical care and attention, food and nourishment to said child, so as to prevent his life being endangered or his health being injured, it was his duty to apply to the proper public authorities for such public assistance and relief in the premises as was necessary to prevent the life of said child being endangered, or his health injured, and if the prisoner willfully neglected so to do, and the child’s life was thereby endangered, or his health injured, he is guilty of the offense charged in this indictment.

“Third. I charge yon further, that it is a cardinal doctrine of the criminal law, founded on natural justice, that it is the intention with which an act is done or omitted to be done that constitutes its criminality ; the intent and the act must concur to constitute a crime. Yet every sane person must be presumed to intend that which is the ordinary and natural consequence of his own act.

“Fourth. If, therefore, you find, upon all the evidence in this case, that the defendant, did knowingly, that is, intentionally, do what the statute prohibited him from doing,'or that he knowingly—that is, intentionally—omitted to do that which the law required he should do, the act itself being unlawful, the law implies a criminal intention on his part to do that which

p. 37

the law says he shall not do, or to omit to do that which the law says he shall do.”

In the course of his remarks, the learned recorder said, among other things, substantially, that if the plaintiff in error, knowingly omitted to do what the law required him to do, he was guilty, or if he saw the child wasting away, day after day, and hour after hour, without calling in medical attendance to relieve him from his pains, sickness and distress, and this result was brought about by reason of his neglect to do so, then the simple fact that he thought that he was doing the best he could, under the circumstances, would be no excuse for his not complying with the requirements of the law, and these propositions were excepted to. Sufficient has already been said to foreshadow the view that must be taken of these exceptions. It was the omission to do certain acts, the failure to act affirmatively, which formed the basis of the complaint against the plaintiff in error ; and when the law imposes a duty it cannot be dispensed with, or pushed aside simply because the person thinks that in doing it in an unauthorized manner, or after his own fashion, he has done the best under the surrounding circumstances in his judgment. The question, indeed, may be stated to be, whether the accused has been guilty of willful neglect, irrespective of motive or intent. The authorities sustain the views of the recorder (People v. Brooks, 1 Denio, 457 ; Commonwealth v. Green, 1 Ash. 299; King v. Holland, 5 D. & East, 618; Queen v. Downs, 13 Cox C. C. 111; Gardner v. People, 62 N. Y. 299 ).

The plaintiff in error, in discharging his trust in the manner in which he performed it, took the consequences, and of course subjected himself to such legal scrutiny as might follow. He has not been sustained in his judgment, and fails. If he had done what any prudent father would have done, he would have seen

p. 38

to it that the boy was cared for with all the appliances at hand and which could be invoked in this city, distinguished for its benevolence and for the number of its charitable institutions, public and private.

The plaintiff in error also excepted to the statement in the charge “ that if the defendant is proven to have done the act charged, the burden is then upon the prisoner to satisfy you that what he did was done honestly and without any intent to commit any crime.” But the exception is worthless. It is equivalent to the proposition and no more that if The People made out árcase against the accused beyond a reasonable doubt, it was his duty to overcome it if he could. If this be not good law then no person charged with crime can be convicted. The jury had been advised of what they should find to fasten the commission of the offense charged upon the plaintiff in error, and they were instructed upon the question of doubt, and therefore the text objected to must be considered with reference to the whole from which it is extracted. These are all the exceptions to the charge itself, except one which it is not deemed necessary to consider. The charge was clear, distinguishing and eminently impartial. The accusation against the plaintiff in error and the proof to sustain it was well calculated to excite feeling against .him, because in taking upon himself the care and custody of children he assumed a solemn trust, whicti. imposed upon him no light duties, and demanded of him great care and devotion in the observance and discharge of them. It placed him in loco parentis, and called upon him to keep this position in constant view. If the burden was too great, he could have cast it off and left his trust to others, or if his means were inadequate to the trust, he could have pursued a similar course if his appeals for aid were unanswered, and thus relieved himself of all responsibility. The recog

Concurrence

p. 39

nition of this trust created the statute under which he was tried, and high public, moral and benevolent considerations sustain it as an important element of our criminal law which is to be enforced against those who willfully violate its provisions. If it be subject to any criticism, it is that it is too lenient in its characteristics, too gentle in its demands upon persons who assume the custody of children and control them therefore at the most important periods of their lives, and mould either a good or evil future by precedent or profession, teaching or example.

A careful examination of the requests to charge which were declined has failed to disclose any error on the part of the recorder in his rulings. The plaintiff in error sought to obtain a too favorable interpreta*tion of the law on his behalf, and of the effect of certain considerations of the evidence as. well, and failed , for that reason to secure the concurrence of the learned court in the views presented on his behalf. The conclusion that the plaintiff in error was fairly and justly ; dealt with impresses itself clearly upon the mind after - a dispassionate examination of all the evidence. Every ‘ means to shield him from the consequences of his omission of duty seem to have been resorted to on the trial by his advocates, but in vain, because the jury were unable to resist the overwhelming effect of the facts and circumstances disclosed against him.

The judgment must be affirmed.

After a thorough examination of the points presented on behalf of the prisoner, I am satisfied that there is nothing in the case which will justify a reversal of his conviction. The objections taken have been so fully considered by Mr. Justice Beady, that nothing is required to be added to what he has said. His examination has been able, minute and complete, and I fully concur in his opinion.

I also concur in the opinion of Mr. Justice Brady.

Judgment affirmed.

Footnotes

[1] Note.—In the case of The People ex rel. The New York Society for the Pretention of Cruelty to Children against Edward G. Gilmore, and The Same against John Smith (IT. T. Supreme Court, First District, Special Term, and Chambers, March, 1880), it appeared that on October 9, 1879, the relators obtained a warrant for the arrest of one Davene for using a child known as “Little Bob ” in certain unlawfal performances at Niblo’s Garden. On the evening of the next day an officer went to the rear or stage entrance of Niblo’s Garden during the performance, exhibited his warrant to, and demanded admission of the defendant John Smith, the doorkeeper and an employee of the defendant Gilmore. The latter was the lessee and manager of said theatre, and had employed the said Davene and “Little Bob ” for said performances. Gilmore had been previously informed by Davene that a warrant was out for bis arrest, and had referred him to his counsel, Hr. Dittenhoefer, at the same time making light of the matter, and assuring Davene that nothing could be done to him. Gilmore and his counsel had both written letters to the relators prior to October 10, asking to have the warrant withdrawn. Smith refused to admit the officer, saying that Gilmore had directed him to admit no one. After some parleying, and referring the matter to one Tooker, Gilmore’s business manager, a scuffle ensued, and the door was closed and locked in the face of the officer. An order to show cause why Gilmore and Smith should not be punished for contempt was obtained, and when service was attempted to be made upon Gilmore, he assured the officer making the service that he was not Gilmore, and pointed out a bystander ’ as being Edward J. Gilmore. The matter was referred to A. S. Hamersley, Esq., to take testimony, and upon bis report a motion was made to punish both defendants for a criminal contempt. Lewis L. Delafleld. and M. Taylor-Pyne, counsel for the relators, for the motion. A. J. Dittenhoefer, opposed. Donohue, J.—A full and exhaustive examination of the evidence satisfies me that the parties proceeded against willfully did the acts complained of, and that they should be punished.' It is important .that parties should understand that if they oppose the execution of *41 process, punishment will follow. On the settlement of the order, I will hear anything the parties may wish to say in mitigation. The defendants were heard in mitigation, upon the settlement of the orders, and the court imposed a fine of $250 and imprisonment for thirty days upon Gilmore, this being the full punishment allowed by law, and a fine of §250 lipón Smith, who acted under his employer’s orders.

Cases cited

Chase v. New York Central Railroad 26 N. Y. 523 N.Y. p. 19
Ruloff v. People 45 N. Y. 213 N.Y. 1871-03-28 p. 21, p. 30
Cozzens v. Higgins 33 How. Pr. 436 N.Y. p. 21
Kennedy v. People 39 N. Y. 245 N.Y. p. 21
Gardner v. People 62 N. Y. 299 N.Y. 1875-06-15 p. 37