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the English common law, and the Acts of the British Parliament in aid
thereof, as it existed up to tho fourth year of the reign of James I., which
was the year IGOG, as fur a-* th? s.une was applicahlo to the new conditions
anil institution- ; but tho forfeiture of goods, or the dishonourable burial,
which were elemonts of tho English law portaining to suicide, have never
boen adopted in this country, for tho reason as one Court aptly says, " that
they ai*e not applicable to the spirit of our institutions." Probably the
initial case in this country, in wliich the elemont of aiding and abetting
suicide enters, was the Massachusetts case of Commonwealth v. Bowen(h),
In that case, one Jewett was in prison under sentence of death, and the
defendant, Bowen, having an opportunity to talk with him, advised him
to commit suicide and procured and brought to him a rope for that pur-
pose, and with which Jewott did hang him^olf. The indictment, drawn
by Perez Morton, Attornoy-Gronoral, containo 1 two counts. The first
count charged that tho defenJmt ''did coun-ol, hire, persuade, and pro-
cure said Jewott to kill hiin^olf." Tho soeonl count charged directly
that Bowen murdoreJ Jevvott by hanging. At tho trial bofore Chief Jus-
tice Parker and Ju-^ticos Jackson and Putman, the Attorn ey-Groneral put
in evidence, without objeotion, the verdict of the coroner's jury, finding
in substance, that Jewett was found dead in prison, with a cord around his
neck and around the iron grate, and concluding, in the form prescribod
by the statute of 1783, that he ** feloniously and as a felon of himself
killed and murdere:! himself." (0 The Chief Justice, in charging the
jury, said : '* You have hoard it said, gontlemon, that admitting the facts
alleged in the indictmont, still thoy do not amount to murder ; for Jewett
himself was the immediate cause and perpetrator of the act which termi-
nated in his own destruction. That the act of Bowen was innocent no one
will pretend, but is his offoiico embraced by the technical definition of a
principal in murder ? Self-destruction is doubtless a criino of awful tur-
pitude ; it is considered in the eye of the law of equal heinousness with tho
murder of one by another. In this offoneo, it is truo, tho actual murderer
escapes punishment ; for the very conrnission of tho crime, which tho law
M-ould otherwise punish with its utmost rigour, puts the offender beyond
the reach of its infliction. Now, if tho murder of one's self is felony, the
accessory is e(iually guilty as if ho had aided and abetted in the murder ;
and I apprehend that if a man murders himself, and one stands by, aiding
in and abetting tho doath, ho i^ as guilty as if he himself was the mur-
derer." In tho caso of Cj.nnoniLwdlh v. JT-.^.t, decided in 1877 by the
Supreme Court of Missachu^^tts (j), tho earlier holding in i\iQ Bowen

(h) Cjm, V. Jinc^i, 13 Miss. :r»;».

CiJ Bow?ns TrlitU 12.

(j) Com, V. 2[\nli, 123 Mays. 42I>, 2*) Am. Rep. 100.

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4 The Criminal Law Journal. [Vol. Ill

ras^, placing suieulo as a felony, was modified, and the Court while holding
that in that state suicide was not technicallv a felon, yet the conviction
was sustained, on the ground that suicide was unlawful and criminal as
niahun in se. In that cuso the defendant was engaged to be married to
one Clmrles Ricker, who expressed his intention of breaking the engage-
m^nt. This anuDuneement so exasperated the defendant that she detor-
mined to take her own life, and, seizing a revolver, made an attempt to
shoot herself. Ricker, being present, seized her, and attempted to prevent
her carrying out her puri)ose, and in the struggle the pistol was accidently
disclmrgetl, fatally wounding Ricker. The defendant was indicted and
convicted of nnn -slaughter. The Cjurt held that suicide was a criminal
act, and followed the principle that if one attempts to commit a criminal
act, and thereby commits homicide, although no homicide was intended, the
crime will be manslaughter.

In the reports of the Supreme Court of Ohio, we find an interesting
and able opinion, upon the subject of the liability of an abettor of suicide
(/'). In that c:ise, one Blackburn, and a woman named Lowell, mutually
agreed to commit suicide. The defendant mixed strychnine with wine,
and in pursuance of the agreement the woman drank the mixture. There
was some evidence tending to show that the defendant, by threats, forced
the worn in to take the poison. The defendant was found guilty in the
lower Court, and appealed, contending that, as suicide was not punishable,
there could h? no conviction as an accessory. To this contention the
(.'ourt said : " Purposely and maliciously to kill a human being by ad-
ministering to him or her poison, is declared by the law to be murder, ir-
respective of the wishes or the condition of the [)arty to whom the poison
is administered. The fact that the guilty party intends also to take his
own life, and that the administration of the poison is in pursuance of an
agre^mont that both will commit suicide, does not, in a legal sense, vary
the case. If the prisoner furnished the poison to the deceased for the
purpose and with the intent that she should with it commit suicide, and
she acc'orvlingly took and used it for that purpose ; or if he did not furnish
the poison, but was present at the taking thereof by the deceased, partici-
pating, by perflation, force, threats, or otherwise, in the taking thereof,
or the introduction of it into her stomach or body then, in either of the
cases su])j)ose(l, he administered the poison to her, within the meaning of
the statute." The judgment of conviction of the lower Court was accord-
ingly afHrmed.

The la-^r judicial e\pre^<ion upon this subject is to be found in an
opinion of the Supreme Court of Illinois, handed down in the year 1903
(/). Tiie facts in that case, briefly stated, are as follows: One Burnett,

(h J Jifiirhhurn x. Stutp, 23 Ohio St. 146.
(/) Jiunrtf V. S'atc, 204 HI. 208,

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Vol. Itl] 1'he Criminal Law Journal. 5

who was defendant below, was a married man, about 28 years of age,
living with his wife in the City of Chicago, Illinois, and was a dentist by
profession. The deceased, Charlotte S. Nichol, was a married woman
living with her husband and children, in the same city, and residing about
three blocks from the defendant's office. The two became acquainted, and
the deceased formed a violent attachment for defendant. Deceased, fear-
ing that she must leave Chicago, sought the defendant, and they spent the
night together at a rooming house ; during the night she constantly talked
about committing suicide. On the evening of the death ot* deceased they
were again at the hotel, and deceased stated to defendant that she would
not leave Chicago, but would commit suicide, stating that she had the;
morphine, and solicited defendant to die with her, which he refused to do.
Defendant then visited a drug store and secured 25 quartergrain tablets of
morphine, which ho brought to their room. They then retired, and in the
morning defendant discovered that Mrs. Nichol was dead. Upon this dis-
covery the defendant himself took the morphine remaining in the bottle,
but was discovered and . conducted to the hospital before the drug took
effect. While at the hospital the defendant made several confessions while
still under the influence of the drug, which tended to show that he had
agreed with deceased to take the poison together. Burnett was tried and
convicted of murder in the lower Court. Upon appeal to the Supreme
Court of that State, Judge Ricks in his opinion said : " The conviction
of the defendant for murder in this case can only be sustained on the
hypothesis that there was an agreement between him and Mrs. Nichol to
commit suicide together, and that that agreement, in part, at least, was the
inducing cause of the deceased taking the poison that produced her death.
Upon the question whether, under the circumstances, suicide is a crime,
we have a paucity of decision. The general rule as stilted by Wharton is :
* If two persons encourage each other to commit suicide jointly, and one
succeeds and the other fails in the attempt upon himself, he is a principal
in the murder of the other.' . • . There Is no evidence, either by thci
admissions of the defendant or any witness, that the deceased took any
morphine in the presence of the defendant, or that he gave her any, or
bought any for her. The evidence rather tends tj show that while the
defendant was gone to the drug store to get the morphine that \u^ pur-
chased, the deceased took that which sho had. . . . We are not dis-
posed to go to the extent of holding, as was done in the Bowen case, that
suicide or self-destruction is a felony, but take tlio view that the latttM*
pronouncement of the Massachusetts Court in the Afink case, and of the
Ohio Court in the Blackburn case, more noarly announced the correct
role. • • . In the view that we entertain of the case at bur It is not
necessary that suicide be held to be a crime. The charge against the
e|e{eo4ant below, in both counts of the indictment, is murder. In the fir.^jt

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6 The Chiminal Law JoruNAL. [Vol. lit

he is charged with murdering Charlotte S. Nichol hy adinniirstering poison
to her, and in the second count with niunlering her hy hiring, persuading
and procuring her to take poison ; and we think i)ro()f of either one o£
these charges would warrant the conviction of murder." It might he
stated further that the Court gave as a reason for the reversal of the judg-
ment of conviction, that there had heen an entire failure of proof of any
agreement to commit suicide together, or that deceascnl took the poison
in the presence of defendant. The adnn'ssions of the defendant, made
while he was under the influence of the drug, were held to he incomi)e-
tent as evidence against him, and the* (\)urt stated that the jury should
have heen instructed that such admissions should he received with caution.
Conclusion, — Several general rules may he deducted from the decisions
which we have reviewed, as to the liahility of the inciter or ahettor of sui-
cide. First, the same strict requirement as to proof of every element
which goes to make up the crime, applicahle to criminal law in general,
applies to the proof in suicide case. Second, it must he shown that the
agreement to commit suicide together was in whole or in i)art the inducing
cause of the deceased taking his or her life. Third, where a person is
present when the deceased takes the poison, with the intent to take his or
her life, and participates hy persuasion, threats, or otherwise, in the taking
thereof, such person is guilty of administering the poison. — Central Law

[The Indian Cases, — The Indian Penal (ode (Act XLV of 18(>0) con-
tains express provisions on the suhject. Section 305 of tlie t^ode enacts :
" If any person under eighteen years of age, any insane person, any deliri-
ous person, any idiot, or any person in a state of intoxication commits
suicide, whoever ahetts the commission of such suicide, shall he punished
with death or transportation for life, or imprisonment for a term not ex-
ceeding tow years, and shall also he liable to fine." Section 30(5 provides
more generally : " If any {)erson connnits suicide, whoever ahetts the
commission of such suicide, shall he punished with imprisonment of either
description for a term which may extend to ton years, and shall also he
liable to fine." The re|)orted cases on these sections are only a few. In
a case of Suttee^ three of the prisoners instigated a hoy to not fire to theinle,
whilst another induced the woman to return to the pile when she had left
it, after being partially burnt, and she was immolated. The C alcutta High
Court held that the three prisoners were guilty of cul])able homicide, and
the boy and the other person of abetting suicide (m). The Court said : —
" Abetment of suicide is confined to the case of persons who aid and abet
the commission of suicide by the hand of the p(M'son himself who commits
the suicide." In another case of Suttee the evidence showed that a woman
prepared herself for suicide in the presence of the accused, that thev
(w) Regina r. SuehhlvU ReethU^ 27 Nov., 1803, 1 H.J.P. J. 174.

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Vol. In] The Criminal Law Journal. 7

followed her to the pyre and stood bj' her, that her step-sons cried " Ram,
Kaui I " and one of the aecuseil told her to say " Ram, Ram I '' and she
would become Suttee. The Allahabad Higli Court held that this proved
active connivance and unequivocal countenance on the [)art of the accused
and that they had engaged with her in a conspiracy for the commission of
the Suttee (n), Mr. Hamilton in his commentary on the Indian Penal
Code cites another case, decided by the same High Court. Some persons
assisted a leper in ceremonies connected with the i)erformance of the
sacrificial act. The Higli Court found them guilty of abetment of suicide
(o). In an unreported case. A, a Hindu widow intending to commit
Suttee, went out to be burned with the corpse of her husband. B, V and
D collected fuel and as they were going to set light to the pile were ar-
rested by the Police. The Judicial Commissioner, Oudh, held that as the
woman was rescued before sustaining any hurt, she was guilty of attempt
to commit culpable homicide not amounting to murder, and B, C and D
were guilty of abetment of that attempt (j>), — AW., Cr. L. J.]


The i)arents of minors who commit crimes, whatever their moral res-
ponsibility may be, have not hitherto, at least in most jurisdictions, been
held to any legal liability therefor. In New York, however, by chapter
G55 of the Laws of 1905, such legal liability is created to a limited extent.
If any parent or guardian of a child under sixteen yours of age (except in
the city of New Y^ork) omits to exercise due diligence in the control of
such child to prevent violation of the law, such negligence constitutes a
misdemeanor. Another provision makes it also a misdemeanor for any
I>erson to encourage or contribute to any violation of the law by such child.
This does not go so far as the Chinese law, by which in some instances it
is said parents are executed for heinous crimes of a child, on the theory
that, if they raise such a criminal, they must take the consequences. This
justice, if it be justice, is somewhiit crude. But nothing can be reasonably
said against the justice of the provision^ of the New Y'ork law, which
limit the liability of the i)arent or gu irdian to ca^e. of neglect of the duty
to u.e due diligence for the proper control of the child. The enforcemeiit
of this law will undoubtedly create a keener sense of responsibility on the
part of some parents and guardians and consequently prevent much
juvenile crime. The law is so obviously just and useful that one may
^vonder that it was not long ago enacted. It may well be adopted m
every state. — Case and Comment.

(«) Qh^.vi v. Mjh'it Punfhi/, Sept. fi, 1871, 3 K.W.P. H.C., 316.

(f») (rJCt. V. (rjjul, 1 AjJl'A.

' Qf) Il^jifii Y. Muhandn (unreported case, Ouaii),

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8 ^HE Criminal Law Jourkal. [Vol. Ill


A distinction waf^ early made between the rights of one under
attainder of treason or felony and one civilly dead. A person attainted
\vas at times spoken of as " civiliter mortuiis " (Bullock r. Dodds, 1819,
2 B. & Al. 258), but the results of such attaint were not the same as the
results of civil death. The latter term was synonymous to natural death,
and was strictly confined to cases of persons banished, or adjured the
realm, or who had entered the church. (Platner r. Sherwood, N. Y.,
1822, C Johns, ('h. 118.) Certain proprietary rights were preserved to a
man attainted. He did not forfeit his freehold so long as he lived until
office found or entry by the king. (Doe r. Pritchard, 1833, 5 B. & A.
765 ; cf. Avery r. Everett, 1888, 110 N. Y. 317.) Until this entry was
made a grant by one under attainder bound all persons but the king and
the lord, of whom the lands were held. (Sheppard's Touchstone, 231 ;
Perkins' Profitable Book, 62.) Likewise where the forfeiture of the
estate was limited to the lifetime of the one attainted, the remainder of the
estate could be devised by the felon. (Rankin's Heirs r. Executors, Ky.,
1828, 6 T. B. Mon. 531.)

It seems perfectly clear that the rights to personal safety of the one
attainted were inviolate. He was not absolutely at the disposal of the
crown, for until execution the creditors had an interest in his persi n for
securing their debts, and after pardon granted he could bring an action
for personal injuries received during imprisonment. (See Ramsay r.
MacDonald [1748], Foster's Crown Cases, 62, note.) Whether his con-
tract rights were preserved is not so clear. It is intimated that an attainted
))ersoii could make a valid contract of marriage, although, perhaps, unable
to enforce contracts at the time. (Kynnaird r. Leslie [1866], L. R., 1
C. P. 389.) This question has recently been passed upon by the Federal
District Court in Massachusetts as one of novel impression. A convict
who had escaped was allowed to recover, after his subsequent recapture
and service of sentence, upon his contract made during the period of his
escape. (McCarron r. Dominion Atlantic Ry. [1905], 134 Fed. 762.)

In the eyes of the law, a convict's disqualifications attach the moment
sentence is passed and continue wherever he may go by authority or by
liis own escape. (Miller r. Finkle [N. Y., 1853], 1 Park. Crim. Rep.
374 ; Ruffin's Case [1871], 21 Grat. 790.) No distinction can, therefore,
be drawn between the contractual rights of an escaped convict and one
who is still incarcerated. In the light of the decision in the princiiwil
case, a convict's j)osition to-day would seem to be analogous to that of one
under attainder, rather than one civilly dead. In the absence of a statute
expressly making his contracts void (cf. 33 and 34 Vict., c. 23), his right
to contract would seem to survive, although his remedy is temporarily

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Vol. Ill] The GiUi«»!it Law JournaI. 9

suspended, and, upon the cewstDg of ' the disahility, the remedy is itself
restored. — Columbia Law Review^ IdOSi


In the case of Mohr r. WilKamg (Minn.), 104 N. W. Rep. 12, the
facts were as follows :

Plaintiff consulted defendant concerning a difficulty with her right
ear. Defendant examined^ the orffok and adv-ised an operation, to which
plaintiff consented. After being, pkeed under the influence of anaesthetics,
and when plaintiff was unconset^Uft- therefrom, defendant examined her
left ear, and found in it a more serious condition than her right, and in
greater need of an operation. He- catted the attention of plaintiff's family
physician to the conditions he had discovered, who attended the operation
at plaintiff's request, and finaJly- conoluded that the operation should be
performed upon the left instead of the right ear, to which the family
physician made no objection. Plaintiff had not previou.^Iy experienced
any difficulty with her left ear,* and^wa* not informed prior to the time she
was placed under the inflftence of anaesthetics that any difficulty existed
with reference to it, and she did. not consent to an operation thereon.
Subsequently, on the claim that the operation seriously impaired her
sense of hearing and wa^ wrongfttLand unlawful, she brought this action
to recover damages for an.assiFnlt a«d>battery.

The court found, thatihe operatienr was consented to by plaintiff is
not sustained by the evidence. At leasts the evidence was such as to take
the question to the jury; Ttiseontwittion is based upon the fact that she
was represented on the occasion in- question by her family physician ;
that the condition of her left ear .wa** made known to him, and the propriety
of an operation thereon suggested^ tor which he made no objection. It is
urged that by his conduct he assented to it, and that plaintiff was bound
thereby. It is not claimed thai he gave his express consent. It is not
disputed but that the family physician of plaintiff was present on the
occasion of the operation, and at her request. But the purpose of his
presence was not that he might participate in the operation, nor does it
appear that he was authorized to xBonsent to any change in the one originally
proposed to be made. Plantiff'wa^-naturally nervous and fearful of the
consequences of being placed under: the influence of anaesthetics, and the
presence of her family physician wa« requested under the impression that
it would allay and calm her fears; The evidence made the question one
of fact for the jury to determine.

The contention of defendant that the act complained of did not amount
to an assault and battery is based upon- the theory that, as plaintiff's left
^ar was iq fact diseased, in a condrtron dangerous (^nd threatening to her

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10 The Criminal Law Journal. |^ Vol. Ill

health, tho operation was nocossarv, and, having boon skillfully performed
at a time when plaintiff had re.piested a like operation on the other ear,
the charge of assault and hatterv can not be sustained ; that, in view of
these conditions, and the claim that there was no ne^lioence on the part
of def(»ndant, and an entire absence of any evidence tondin;2; to show an
evil intent, the court should say, as a matter of law, that no assault and
battery was committetl, even th()u;>;h she did not consent to the operation.
In other words, that the absence of a showing that defendant was actuated
by a wrongful intent, or guilty of negligence, relieves tho act of defendant
from tlie charge of an unlawrul assault and battery. We are unable to
reach that conclusion, thougli the contention is not without merit. It
would seem to follow from what has been said on the other features of the
ease that the act of defendant amounted at least to a technical assault and
battery. If the operation was performed without plaintiff's consent, and
the circumstances were not such as to justify its performance without, it
was wrongful ; and, if it was wrongful, it was unlawful.

As remarked in 1 Jaggard on Torts, 437, every person has a right to
complete immunity of his person from physical interferenco of others,
except in so far as contact may be necessary under the general doctrine
of privilege ; and any unlawful or unauthorized touching of the person of
another, except it be in tlie spirit of pleasantry, constitutes an assault and
battery. In the case at bar, as we have already soon, the tpiostion whether
defendant's act in performing the operation upon plaintiff was authorized
was a question for the jury to determine. If it was unauthorized then it
was within what we have said, unlawful. It was a violent assault, not a
mere pleasantry ; and, even though no negligence is shown, it was wrong-
ful and unlawful. The case is unlike a criminal prosecution for assault
and battery, for there an unlawful intent must be shown. But that rule
does not apjdy to a civil action, to maintain which it is sufficient to show
that the assault complained of was wrongful and unlawful or the result of
negligence. 1 Addison on Torts, G80 ; Lander v. Seaver, 32 Vt. 114, 7G
Am. Dec. 150 ; Vosburg v. Putney, 80 Wis. 523, 50 N. W. Kep. 403,
14 L. U. A. 220, 27 Am. St. Hep.' 47.

The amount of plaintiff's recovery, if she is entitled to recovery at all,
must depend upon the character and extent of the injury inflicted upon
her, in determining which the nature of the malady intended to be healed
and the beneficial nature of the operation should bo taken into considera-
tion, as well as the good faith of the defendant. — Central Law JournaL

In JCrevi/hinhfs Matjazine Mr. Frank W. Mack, who, from the
reporter's table, has studied desperate and hopeless faces of many victims
driven into bankruptcy on a mistaken charge, discusses the already much

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Vol. III^ The Cuiminal Law Jduknal. 11

mooted quo.-tion of in(}(Mnnifyiii<x the innoeont. Ono point that ho hrin;i;s
out is ospoeially dosorvin/*; of montioii, vi:: : Contrast iho attitude of the
l>ublic toward the man found not ojuilty and toward the eonvieted criminal.
AVhile any number of philanthropic institutions stand ready tt) assist the
ex-convict, for the ex-suspect no compensatory measur(\s have ever been

Online LibraryKarl HeimThe Criminal law journal of India : a monthly legal publication containing full reports of all reported criminal cases of the high courts and chief courts in India → online text (page 2 of 91)