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Stat. 1913, § 8612, subdiv. 3, defining man- | act from which death resulted, in itself, slaughter in the second degree as homicide be sufficient to make him guilty of mancommitted without design to effect death, slaughter. "by any act, procurement, or culpable neg

Whart. Homicide, 681; Fitzgerald v. ligence” not constituting a higher crime, State, 112 Ala. 34, 20 So. 966; Thomas v. where he has exhibited gross incompetency or inattention, or wanton indifference to his People, 2 Colo. App. 513, 31 Pac. 349; patient's safety.

Caywood v. Com. 7 Ky. L. Rep. 224; Com. Indictment homicide negligence

v. Pierce, 138 Mass. 165, 52 Am. Rep. of physician.

264, 5 Am. Crim. Rep. 391; State v. Mc2. An indictment under this statute need Donald, 105 Minn. 251, 117 X. W. 482; not allege knowledge on defendant's part of State v. McIntyre, 19 Minn. 93, Gil. 65. probability of consequences from the acts Evidence that the patient was burned or omissions charged; nor is it necessary will not justify the finding that the defendto charge defendant's duty in the premises, ant is guilty of this offense, or at fault in nor set up a specific standard of duty, nor to allege *culpable” or any other degree of permitting the burn to occur.

Frisk v. Cannon, 110 Minn. 438, 28 neglignece eo nomine, nor set out defendant's acts in any other than general terms L.R.A. (N.S.) 262, 126 N. W. 67; Coombs and as ultimate facts.

v. King, 107 Me. 376, 78 Atl. 468, Ann. Evidence judicial notice danger

Cas. 1912C, 1121, 3 N. C. C. A. 107; Sweeney from X-ray.

v. Erving, 35 App. D. C. 57, 43 L.R.A. 3. The court takes judicial notice that (N.S.) 734, 228 L. S. 233, 57 L. ed. 815, X-ray machines sometimes inflict serious 33 Sup. Ct. Rep. 416, Ann. Cas. 1914D, burns.

905. Indictment — sufficiency.

Messrs. Lyndon A. Smith, Attorney Gen4. An indictment against a physician, cral, and John C. Nethaway, Assistant under the statute cited, for manslaughter Attorney General, for the State: in the second degree committed in connec

The operation was not carried on for tion with the operation of an X-ray ma

medical purposes, but for defendant's perchine, sustained as against a demurrer on

sonal purposes. the ground that the facts charged were not stated with suflicient certainty to, and did

Henslin v. Wheaton, 91 Hinn. 219, 64 not, constitute a public offense.

L.R.A. 126, 103 Am. St. Rep. 504, 97 V.

W. 882, 1 Ann. Cas. 19, 15 Am. Veg. Rep. (November 6, 1914.)

352.

An indictment should be held sufficient if YERTIFICATION to the Supreme Court it fairly advises the defendant of the

the District Court for Douglas County over- State v. Staples, 126 Minn. 396, 148 N. ruling a demurrer to an indictment charg- W. 283. ing manslaughter in the second degree. Defendant was guilty of gross and culOrder affirmed.

pable negligence. The facts are stated in the opinion.

Frisk v. Cannon, 110 Minn. 438, 28 Messrs. George L. Treat and Durment, L.R.A. (N.S.) 262, 126 N. W. 67. Moore, & Oppenheimer, for defendant: Mr. Hugh E. Leach also for the State.

The mere fact that the act complained of resulted in death is not sufficient to Philip E. Brown, J., delivered the opinmake the defendant guilty of man- ion of the court: slaughter; nor would the fact (if true) Defendant demurred to an indictment acthat he was negligent in committing the cusing him of the offense of manslaughter trical or X-ray treatment will be found in ; killing of a human being by the act, pronotes in 28 L.R.A.(N.S.) 262, and 43 L.R.A. curement, or culpable negligence of another, (N.S.) 734.

in cases where such killing shall not be The effect of failure to provide medical justifiable or excusable homicide or attendance to render one guilty of man- der, according to the provisions of this slaughter is treated in notes in 6 L.R.A. article, shall be deemed manslaughter,” (N.S.) 685, and 45 L.R.A. (N.S.) 559. though there is another statutory provision

And for homicide in the commission of or that "if any physician, while in a state of attempt to commit abortion, see State v. intoxication, shall without a design to efHarris, 49 L.R.A.(N.S.) 580 and note. fect death administer any poison, drug or

The only case found since the publication medicine, or do any other act to another of the earlier note is Hampton v. State, person which shall produce death of such 50 Fla. 55, 39 So. 421, in which it is held other, he shall be deemed guilty of manthat manslaughter may be established by slaughter,” the latter provision being deproof that the death of a person was caused signed as an addition to the former, rather by the culpable negligence of a physician, than to supersede it in cases of malpractice under a general statute providing that “the by physicians.

R. L. S.

mur

in the second degree, on the ground that, without which a criminal offense would not the acts or omissions charged were not be described being fatal. State v. Macstated with sufficient certainty to, and did Donald, 105 Minn. 251, 117 N. W. 482. not, constitute a public offense. The court And the essential, ultimate facts alleged below overruled the demurrer and certified must not be consistent with innocency. the case here.

State v. Erickson, 81 Minn. 134, 83 N. W. The indictment was found under Gen. 512. Furthermore, the indictment must Stat. 1913, § 8612, subdiv. 3, declaring man. protect accused from a second prosecution slaughter to be of this degree when com- for the same offense. State v. Tracy, 82 mitted without any design to effect death, Minn, 317, 84 N. W. 1015. It cannot, how"by any act, procurement, or culpable neg. ever, be overturned by technicalities which ligence" not constituting a higher crime. do not prejudice the substantial rights of Omitting formal parts, it alleged that de defendant. State v. Staples, 126 Minn. 396, fendant, "without authority of law, but 148 N. W. 283. without a design to effect her death, did The only question necessary to be confeloniously use and employ upon the body i sidered in applying the foregoing tests is of one Ruth Nass an electrical machine or whether the criminality of defendant's acts instrument commonly known as an X-ray as constituting the crime of homicide by machine (a more particular description of "culpable negligence" is sufficiently alleged. said instrument or machine being to said Numerous definitions of this term may grand jury unknown) for the purpose of be found. 2 Words & Phrases, 1780; i taking an X-ray picture of the hip of the Words & Phrases, 2d series, 1174. But said Ruth Nass for the sole use and pur- these would be of little, if any, value in pose of said Charles A. Lester, with her the premises, for the term does not apconsent, extracted from her upon his as pear in the indictment. Moreover, culpable surance that the exposure of such X-ray negligence—that is, criminal negligence—is would do her no harm; and she relying largely a matter of degree, and, as has well upon his assurance as a medical man, and been said, incapable of precise definition. not otherwise, said Charles A. Lester did Whether it exists to such a degree as to inthen and there attempt to take such picture volve criminal liability is a question that be subjecting the body of said Ruth Nass must be left, to a great ex*ent, to the comto the rays of the said machine, and did mon sense of the jury. Hampton v. State, then and there tura and apply said X-ray 50 Fla. 55, 64, 39 So. 421; Stehr v. State, upon the body of the said Ruth Nass in 92 Neb. 755, 45 L.R.A. (N.S.) 559, 139 N. and over the region of her right hip, the W. 676, Ann. Cas. 1914A, 573; 22 Am. & said machine being a dangerous instrument, Eng. Enc. Law 2d ed. 810. But not every except when operated by a skilful manager careless or negligent act whereby death enit was not necessarily dangerous, which sues comes within the statute, and somedanger the said C. A. Lester knew, or, in thing more must appear than the essentials the exercise of the care required under the necessary to impose civil liability for damcircumstances, he should have known, and ages. 21 Cyc, 766. When considered as said Charles A. Lester did then and there the basis of a charge of manslaughter place the tube of the said X-ray unreason- against a medical man, or person assumably close to the body of her, the said ing to act as such, culpable negligence Ruth Nass, and disregarding the duty he exists where he exhibits gross lack of comowed her, he did negligently and carelessly petency or inattention, or wanton indifferfail to give her, during the time of suchence to the patient's safety, which may exposure to such X-ray as aforesaid, such arise from his gross ignorance of the proper and requisite attention as was req. science, or through gross negligence in uisite and proper to prevent burning her, either its application or lack of proper and did operate such X-ray in an unskilful skill in the use of instruments. Where, manner, and did keep her body so exposed however, he does nothing that an ordinarfor an unreasonable length of time, thereby ily skilled and careful practitioner might inflicting upon the body of her, the said not do, and death results merely from an Ruth Nass, in the region of the right hip, error of judgment or accident, no criminal as aforesaid, a mortal burn and injury liability attaches. Hampton v. State, su: known as an X-ray burn, from which mor- pra, decided under a statute like ours; tal burn so caused as aforesaid she, the Ferguson's Case, 1 Lewin, C. C. 181; Reg. said Ruth Nass, died."

v. Ellis, 2 Car. & K. 470; note in 124 Am. This court has frequently declared that St. Rep. 330; 22 Am. & Eng. Enc. Law, an indictment must set out the complete 2d ed. 810; 21 Cyc. 769. “Gross," as here criminal offense charged, and every essen- used, is intended to convey the idea of reck. tial element must be alleged directly and lessness with regard to the safet. of others, certainly: the omission of an allegation or, as expressed by Mr. Justice Holmes in Com. v. Pierce, 138 Mass. 165, 52 Am. Rep., though he does not supervise the construc264, 5 Am. Crim. Rep. 391, "foolhardy pre

tion. sumption.”

If the owner, after the plans are furThe failure to allege knowledge on de- nished, of his own volition and without fendant's part that his acts involved proba-struction of a building on the land, the

fault of the architect, abandons the conbility of serious consequences to the del architect has a lien on the land. An actual ceased is not fatal to the indictment; the i improvement is not necessary to a lien. defect, if any, in this regard, being cured

Same time for filing. by the presumption of contemplation of 2. The contract between the architect and probable consequences. Ibid. Neither was the owner was that the former should furit necessary to allege defendant's duty to nish plans and specifications for and superdeceased under the circumstances, nor to vise the construction of the building for an set up a specific standard by which his acts entire consideration, based on a percentage might be measured; these being matters of the total cost. The lien statement was

filed within ninety days after the owner of law. If, then, the facts alleged suffi

repudiated the contract. It is held that ciently show such incompetency or inat such statement was filed in time, though tention or indifference to the safety of de the last work on the plans and specifications ceased as has been indicated as necessary was done more than ninety days prior to give rise to criminal liability, the in- thereto. dictment must be upheld, though it charges neither "culpable" nor any other degree

(January 29, 1915.) of negligence eo nomine, nor defendant's acts in other than general terms and as

PPEAL by defendants from a judgment ultimate facts. To state more

as to the of the District Court for Hennepin latter would be to plead the evidence, which County in plaintiffs' favor in an action is not required, and “negligence" prefixed brought to foreclose a mechanics' lien. Afby adjectives could not aid the former, un

firmed. less the facts stated justified such expres

The facts are stated in the opinion. sions (State v. MacDonald, supra), in

Messrs. Lancaster, Simpson, & Purdy which event they would be surplusage.

and James E. Dorsey, for appellants: We must take judicial notice that X-ray

An actual improvement to the premises machines sometimes inflict serious burns, is necessary for a lien, and here there was and the indictment characterizes the in

no improvement. strument used as dangerous, unless skil

27 Cyc. 17; Smith v. Barnes, 38 Minn. fully handled, and presumptively known 240, 36 N. W. 346; Burns v. Sewell, 48 by defendant to be such, notwithstanding Minn. 425, 51 N. W. 224; Howes v. Reliwbieh, he placed it too close to his sub

ance Wire Works Co. 46 Minn. 44, 48 N. ject, and also failed during an excessive W. 448; Hickey v. Collom, 47 Minn. 565, exposure to give her the attention requisite 50 N. W. 918; Combination Steel & I. Co. to prevent injury. These allegations im. v. St. Paul City R. Co. 52 Minn. 203, 53 port criminal negligence, and the questions N W. 1144;. John Paul Lumber Co. v. raised thereby are for the jury. State v. Hormel, 61 Minn. 303, 63 N. W. 718; Berllardister, 38 Ark. 605, 42 Am. Rep. 5. ger v. Turnblad, 98 Minn. 163, 116 Am. We sustain the indictment, though it is St. Rep. 353, 107 N. W. 543; Knight v. not a model one.

Note. — Right of architect to mechanics' Order affirmed.

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This note supplements the earlier notes

to Stephens v. Hicks, 36 L.R.A. (X.S.) 354, MINNESOTA SUPREME COURT. and Hughes v. Torgerson, 16 L.R.A. 600.

It is held in a recent Washington case LOWELL A. LAMOREAUX et al., Respts., that an architect has a lien on a building

for furnishing plans for it and superintend. LOUIS ANDERSCH et al., Exrs., etc., of ing its construction, under a statute proCharles Andersch, Deceased, et al., Appts. viding that every person performing labor

upon or furnishing material for a building (128 Minn. 261, 150 X. W. 908.) has lien upon the building therefor.

Gould v. McCormick, 75 Wash. 61, 47 L.R.A. Mechanics' lien for architect's plans. (N.S.) 765, 134 Pac. 676, Ann. Cas. 1915 A,

1. An architect who, under contract with 710. Alluding to the contlict of authority the owner of land, furnishes plans and speci-or this point, the court said that, while the fications for the construction of a building decisions are by no means harmonious, the thereon, is entitled to a lien upon the build- great weight of authority as well as the bet. ing and land upon which it is constructed, ter reason appears to support the view

that the lien exists where the language of leadnotes by Bunn, J.

the statute is general.

Norris, 13 Minn, 473, Gil. 438; Gardner v. No lien existed here because the lien Leck, 52 Minn. 522, 54 N. W. 746; Went- statement was not filed within ninety days worth v. Tubbs, 53 Minn. 388, 55 N. W. from the date of furnishing the last item 543; Waganstein v. Jones, 61 Minn. 262, of service. 63 N. W. 717; Rinn v. Electric Power Co. Ilurlbert v. New Ulm Basket Works, 47 3 App. Div. 305, 38 N. Y. Supp. 345; Minn. 81, 49 N. W. 521; Voigtmann v. WilThompson-Starrett Co. v. Brooklyn Heights mington Trust Bldg. Corp. 7 Penn. (Del.) Realty Co. 111 App. Div. 358, 98 N. Y. 265, 78 Atl. 920. Supp. 128; Spannhake v. Mountain Constr. Messrs. Lind, Ueland, & Jerome for Co. 137 N. Y. Supp. 900; Swasey v. Gran- respondents. ite Spring Water Co. 158 App. Div. 549, 143 N. Y. Supp. 838; Foster v. Tierney, 91 Bunn, J., delivered the opinion of the Iowa, 253, 51 Am. St. Rep. 343, 59 N. W. Court: 59; Parsons v. Brown, 97 Iowa, 699, 66 N. This is an action to foreclose a mechanics' W. 880; Fitzgerald v. Walsh, 107 Wis. 92, | lien. There was a trial before the court 81 Am. St. Rep. 824, 82 N. W. 717; Howes without a jury and a decision for plaintiffs. v. Reliance Wire Works Co. 46 Minn. 44, Defendants appeal from the judgment en48 N. W. 448.

tered on the decision.

But the Washington court lays down the tion he is entitled to a lien for the value of general proposition that where no building both plans and superintendence. Spannhake is erected the architect has no lien for draw. v. Mountain Constr. Co. 159 App. Div. 727, ing plans, saying that the law contemplates 144 N. Y. Supp. 968, reversing 137 N. Y. that the lien is to attach to the building Supp. 900. Swasey v. Granite Spring Water and upon only so much of the land as may Co. 158 App. Div. 549, 143 N. Y. Supp. 838, be necessary for its use and occupation. indorsed this doctrine, but denied judgment Lipscomb v. Exchange Nat. Bank, 80 Wash. in favor of the lienor upon the ground that 296, 141 Pac. 686. In this case there was evidence was insufficient to show the relasome excavation, but the workmen employed | tion between plans and specifications, on thereat ceased work for nonpayment of the one hand, and superintendence, on the wages, and the undertaking was abandoned. other, or to establish that the plans were It is to be noted that this decision is not used. in harmony with LAMOREAUX V. ANDERSCH, In Thompson-Starrett Co. v. Brooklyn unless the fact, given so much weight in Heights Realty Co. 111 App. Div. 358, 98 the latter case, that the abandonment of N. Y. Supp. 128, indorsing the doctrine the work was due to the owner himself, is referred to in the preceding paragraph, to be regarded as sufficient completely to the court further held that visiting the distinguish them. In connection with the premises and inspecting the ground and the point as to abandonment of the work it is party wall to make possible the preparation pertinent to refer to the note as to the right of the plans was not such an active par. to a mechanics’ lien for labor or material ticipation in the manual function of con. furnished on the order of an architect be.structing the building as would entitle the fore abandonment of the contract by the plaintiff to a lien therefor, and carry with contractor, appended to Sternberg v. Ft. it the claim for preparing plans and speci• Smith Refrigerator Works, 20 L.R.A. (X.S.) fications. 89.

Attention is also directed to Federal In Sanguinett v. Colorado Salt Co. Trust Co. v. Guigues, 76 N. J. Eq. 495, 74 Tex, Civ. App. 150 S. W. 490, the court Atl. 652, in which the question was whether held architects entitled to a lien for both during a delay in the work the architect plans and superintendence, under a statute did anything within the scope of his duties giving a lien to any person, firm, corpo which was sufficient to keep his lien alive; ration, artisan, laborer, or mechanic who and in which it was held that his visit to may labor or furnish material to erect any the premises when no work was being done, improvement on land. The court said that and none had been done for three months, even if the plaintiff, a firm of architects, was insufficient; but that another visit when was not an artisan, laborer, or mechanic things were practically at a standstill, to within the meaning of the statute, the act see that things were safe, to take care of included the plaintiff by the significant the place, to see if anyone was working, phrase, “any person or firm

who and to serve notice on the contractors to may labor," which showed a legislative in finish their work, was sufficient to give tent to provide a lien for any and all per vitality to the lien, as they were a part of sons whether artisans, laborers, mechanics, the architect's duties. or not, who may labor “to erect any house Some benefit in this connection may be or improvement."

derived from a reference to the note apUpon the authority of earlier New York pended to Munroe v. Clark, 30 L.R.A.(N.S.) cases cited in the earlier notes, it has been 82, on the right to a lien for labor in preheld in later New York decisions that while paring materials in manufactured form, an architect is not entitled to a mechanics' under a statute giving a lien for work or lien for drawing plans alone, yet when he labor performed on the building or structure. both draws plans and superintends construc- :

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The facts are as follows: Plaintiffs are which their work contributes. Knight v. architects. In September, 1912, defendants Norris, 13 Minn. 473, Gil. 438; Gardner v. Louis and Julius Andersch and Charles An- Leck, 52 Minn. 522, 54 N. W. 746; Wentdersch, since deceased, entered into a con- worth v. Tubbs, 53 Minn. 388, 55 N. W. tract with plaintiff's by the terms of which 543; Waganstein v. Jones, 61 Minn. 262, plaintiff's agreed to make plans, with de 63 N. W. 717. In each of the cases cited, tails and specifications, for a building to there

actual improvement, and be erected on two lots in Minneapolis owned in each the architect not only made the by defendants, and to superintend the plans, but supervised the construction. It construction of the building. Plaintiffs has been held that an architect's services in were to receive as compensation for their preparing plans only are not lienable, but services a sum equal to per cent of the we confess our inability to see why plans cost of the building. The plans and speci- and specifications do not as much contribfications were prepared, submitted to con- ute to the construction of a building as tractors for bids, and delivered, with the does the supervision by the architect, and bids received, to defendants in November, well-considered cases so hold. Henry & C. 1912. Prior to this time defendants had Co. v. Halter, 58 Neb. 685,.79 N. W. 616; a survey of the land made and furnished to Parsons v. Brown, 97 Iowa, 699, 66 N. W. plaintiffs for their use in preparing the 880; Fitzgerald v. Walsh, 107 Wis. 92, 81 plans, and tore down an old barn that was Am. St. Rep. 824, 82 N. W. 717; Freeman standing on the lots. The plans and speci- v. Rinaker, 185 Ill. 172, 56 N. E. 1055; fications were retained by defendants with-Ehlers v. Wannack Bros. 118 Cal. 310, 50 out objection, but they did not accept or Pac. 433; Field v. Consolidated Mineral reject the bids, or take any action in the Water Co. 25 R. I. 319, 105 Am. St. Rep. matter until May 27, 1913, when they re- 895, 55 Atl. 757. We think plaintiff's would pudiated the contract with plaintiffs, and have been entitled to a lien if their plans abandoned the project of constructing a had been used in the construction of a building on the lots. Prior to this time building on the premises. nothing was done either towards the con- Is this right to a lien lost when the ownstruction of the building, or to discharge er, through no fault of the architect, does plaintiffs as architects, release them not use the plans or make the contemplated from their obligation to perform their improvement? Liberal construction of the contract.

lien statute is the settled policy in this After the bids were received plaintiff's state. But the right to a lien in any case prepared details. The last work on these is still wholly dependent upon the language was done March 27, 1913. On May 23, of the statute. There is no lien except 1913, one of the plaintiffs devoted some where the statute gives one. The answer time to an examination of the details, to the question, therefore, depends upon the which had been drawn by an employee, to words of the statute, liberally construed to ascertain whether they had been properly further the object of its enactment. prepared. The lien statement was filed Gen. Stat. 1913, § 7020, the first section August 18, 1913.

in the chapter relating to liens for labor The questions argued by counsel are and material, and the one giving the licn, these: (1) Are plaintiffs entitled to a lien provides in substance that "whoever connotwithstanding there was no improvement tributes to the improvement of real estate on the land ? (2) Was the lien statement by performing labor, or furnishing skill for filed in time? (3) In case it be held there the erection of a building thereon, shall is no lien, was it error to refuse defendants' have a lien upon such improvement, and demand for a jury trial on the issue of upon the land on which it is situated, for their liability for breach of contract? the price or value of such contribution."

1. The first question is one of doubt and By $ 7021, a lien extends to the interest difficulty, and the conclusion reached is not of the owner in “the premises improved." the unanimous opinion of the court. It By $ 7022, a person contributing labor, appears conclusively, we think, that there skill, materials, or machinery for the con

no improvement on the land. The struction or alteration or repair of railremoval of the old barn by defendants and way lines, etc., is given a lien upon “the the making of the survey cannot be con- line so improved.” Section 7023, providing sidered as an improvement. This was done when a lien shall attach, says that as entirely independently of the contract with against the owner, it shall take effect “from plaintiffs, and clearly plaintiff's contributed the time the first item of material or labor nothing to this work. Architects are en is furnished upon the premises for the betitled to liens for services in preparing ginning of the improvement,” that plans

and superintending construction against a bona fide purchaser, mortgagee, where there is an actual improvement to 'or encumbrancer, no lien shall attach “prior

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