work) that there should not be one law in Maine, and another in Texas, but that the same law shall prevail at least throughout the United States.

There is no error in the judgment below. Let this opinion be certified.

NEGLECT TO SUPPLY FOOD TO INFANT-MASTER AND SERVANT – INFANT MUST BE UNABLE TO HELP ITSELF.

R. v. S.

[5 Cox, 279.]

In the Central Criminal Court, February, 1851.

A Girl of Sixteen Years of age is not an infant of tender years unable to take care of herself, and therefore her master and mistress are not guilty of any crime in not supplying her with sufficient food and nourishment while in their service.

The defendants were indicted for neglecting to supply a servant, J. W., a girl sixteen years of age, with sufficient food and nourishment, whereby she became sick. There were other counts charging the defendants with a common assault. The defendants pleaded guilty to the counts charging assaults but not guilty to the two first counts.

M. Chambers, Q. C. (with whom was Huddleston for the prosecution), opened the case, and stated that the indictment as to the first two counts was founded on the principles laid down in R. v. Ridley.1 That was a charge against a master for not providing sufficient food for his servant, whereby the servant became injured in health. It was there held that the indictment must allege that the servant was of tender years, and under the control of the master. In the present indictment these two circumstances were alleged, and he believed that by the common law of this country it was the duty of a master to provide his servant with proper food and nourishment, and for the breach of that duty he was subject to punishment by the criminal laws. The facts of the case were these: In July, 1849, the female defendant applied to the West London Union for a servant, and J. W., the prosecutrix, then between fourteen and fifteen years of age, was sent to her as such servant, and remained in the service until November last. When she left the Union she was in a state of good health, but shortly afterwards she was subjected to a course of ill treatment by the defendants, which was continued up to the said month of November, and by which she became

16 Camp. 650.

so reduced and emaciated as to be a mere skeleton. Her food had been restricted in quantity, and what was given to her was of a nature totally unfit for human consumption. Her health had, in consequence, been gradually undermined, and probably a further continuance of such treatment would, in a very short time, have resulted in her death. She was an orphan; she had no friends to whom she could appeal, and was utterly without the means of procuring what it was the undoubted duty of the defendants to have furnished her with. [COLERIDGE, J. You have said, Mr. Chambers, that these first two counts of the indictment are framed upon the principles laid down in R. v. Ridley. There the indictment was held defective for want of certain allegations which this one contains. We will assume, therefore, that the indictment is good upon the face of it; but, according to your opening, the prosecutrix was between fourteen and fifteen years of age when she was taken into the service, and the ill treatment complained of continued over a period until she was been sixteen and seventeen, and it is perfectly clear that a person of that age can not be considered as in fact of tender years. The duty of a master or mistress to supply food to a servant is one resulting from the relation of master and servant, and we do not sit here to try people for the breach of a civil contract. It might be different if it could be shown that she was kept under duress, and prevented from procuring food; but on the contrary it does not appear that she was in any way restrained from going out.] The question of whether or not she was of tender years, is, perhaps, one for your Lordship to decide. I have not been able to find any authority in which it was held that a child of such an age could be the object of an indictment. In R. v. Ridley, the age was about fifteen.

CRESSWELL, J. Which I take to be the reason they did not state the child to be of tender years. A person of tender years is a person incapable of acting or judging for herself. There are cases in which very young children may act for themselves, as where a child is brought up by habeas corpus to be delivered into the hand of a parent; there it is allowed to make an election. Again, a child of a much earlier age than this girl may contract marriage and other relations, and the law holds such a person to be competent to act for himself, whatever injury may follow. It is impossible to suppose that this girl was incapable of acting for herself.

COLERIDGE, J. Common sense seems to point out that this girl was capable of making some complaint if she was deprived of food.

Huddleston. There are here two material allegations; one that the child was of tender years; and the other, that she was under the care and control of the defendants; "tender years" is a relative expression and must be decided by the judge and jury. The capacity and intel

lect of the girl must be considered. It may be that a girl of sixteen has much less capacity and intellect than another of eight or nine, and this would be a question for the jury to decide.

CRESSWELL, J. Whether the child was under the care and control of the defendants is referable to her years, intellect and capacity. If being of ordinary, or even superior intellect and capacity, she was so under the control of the defendants, so impressed with fear, either from being watched or being threatened, as to be unable to resort to the assistance of her natural defenders or of other persons, then a duty would devolve on the defendants greater than that arising from the civil contract.

COLERIDGE, J. From the indictment and opening of counsel, we gather nothing to distinguish this from ordinary cases. There was no special control or imprisonment to which this girl was subjected. The control must be taken with reference to the subject-matter of the charge. Here it means such control as prevented her from making complaints.

M. Chambers mentioned the case of R. v. Waters. It was a charge of murder, and the indictment alleged the death of a child to have been caused by its mother casting and throwing it on a heap of ashes and leaving it there in the open air, exposed to the cold air, whereby it died; and it was held that the indictment was good, but if it had charged the death to have been caused by mere nonfeasance in the neglect of prisoner's maternal duties, it would have been bad, unless the child were alleged to have been of such an age or in such a situation as to be unable to take care of itself. After, however, what had fallen from the court he should offer no evidence in support of the first two counts of the indictment.

COLERIDGE, J. The case last quoted seems to me entirely to confirm the opinion we both entertain with regard to this indictment, and we think the course you have taken is the right one. It is to be presumed you are well acquainted with the facts you were in a condition to prove; and you have been careful not to state anything that could inflame the minds of the jury and create any undue prejudice against the defendants. You are clearly not capable of sustaining by evidence some of the material allegations in the indictment.

CRESSWELL, J. I entirely concur in the propriety of the course adopted by Mr. Chambers. I think Mr. Huddleston's argument on the meaning of the words "tender years," goes too far. If it were to be taken as a rule that whether a person of tender years or not, is to be decided by his capacity, then some mere children might, with greater propriety, be said to be of tender years than other people of thirty,

1 Den. C. C. 356; 2 C. & R. 864.

because their intellects may be more mature. By the expression, "under the care and control of the defendants,' was meant (for the purposes of the indictment), under such control as to be restrained from acting for herself. In its ordinary sense it means no more than such control of her master as every servant may be said to be under. The allegation that the defendants "prevented her from obtaining food " renders the definition "of tender years" unimportant, for if they actually starved her they would be responsible, whatever her age might be. But I think this girl was a free agent, and, therefore, that the defendants are not liable on the two first counts of the indictment. Verdict, not guilty.

NEGLECT TO SUPPLY FOOD-CHILD MUST BE ACTUALLY INJURED

R. v. PHILPOTT.

[6 Cox, 140.]

In the English Court of Criminal Appeal, April, 1853.

1. Child must be Actually Injured - Necessary Food - Evidence. -Neglect on the part of a parent to provide an infant child with necessary food and clothing is not a misdemeanor at common-law, unless some actual injury is done to the child; and in an indictment for that offense an averment that the child was actually injured is a necessary and material allegation, and must be proved.

2. Whether an Actual Injury has been occasioned is a question of fact for the jury; but where upon a case reserved, it appeared that a mother had left her children several days without food or clothing, so that, but for the attention of a neighbor, they might probably have died; but that, in consequence of that attention, they did not suffer any serious injury, though the neighbor thought that they did suffer in some degree; and the question was put to the court whether the injury was sufficient in degree to constitute the offense: Held, insufficient.

At the General Quarter Sessions of the Peace for the County of Kent, holden at Maidstone on the 4th of January, 1853, Priscilla Philpott was tried upon an indictment which charged that before and at the time of the committing of the offense next hereinafter mentioned, to wit, on the 20th day of December, A. D. 1852, Priscilla Philpott, late of the parish of Chatham, and the county of Kent, was the mother of, and then had the care and custody of an infant female child, whose name is to the said jurors unknown, of tender years, to wit, of the age of seven years, and unable to support or maintain herself, or to provide herself with necessary and proper food and clothing; and the said Priscilla Philpott then was able to support and maintain the said infant child, and to provide the said infant child with necessary and proper food and clothing, whereby it became and was the duty of the said

Priscilla Philpott to maintain and support the said infant child, and to provide the said infant with necessary and proper food and clothing. Nevertheless said Priscilla Philpott, being an evil disposed person, and not regarding her said duty in that behalf on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, did unlawfully and willfully neglect to support or maintain the said infant child, or to provide the said infant with necessary and proper food and clothing, and did then unlawfully and willfully desert and abandon the said infant child, and did leave the said infant child without necessary food or clothing for a long space of time, to wit, four days, whereby and by reason of which said unlawful and willful neglect, desertion and abandonment, the said infant child became and was greatly injured and weakened; against the peace of our Lady the Queen, her crown and dignity.

A second count in the indictment contained a similar charge against the prisoner for neglecting to support another of her children, being a female child of the age of six years. And there was a similar charge in a third count, with respect to another of her children being a boy of the age of three years. It was proved upon the trial that the prisoner was the wife of a seaman in Her Majesty's service, who was absent on service; that she received a portion of his pay under a power given by her husband; that she had a house to herself in which she lived with her three children, the children mentioned in the indictment; that the prisoner was able to work and get her living if she chose; was a good needle-woman, and was used to work for the slopsellers.

Mary Anne Crane, a witness for the prosecution, a neighbor of the prisoner, stated that about five o'clock in the evening of the 20th of December, prisoner called on her with another woman, Mrs. Gardner, who came to take leave of witness. Crane asked prisoner whether she was going to stay out all night again? That the prisoner made no answer and went away; that about half an hour afterwards witness went to see the children, the door of the house being only fastened with a latch; witness went in and found the children upstairs in bed; there was no food in the house; a flock bed on the floor, with only one bit of blanket upon it; that the bed was wet; that witness gave the children a piece of bread and butter each; the little boy was crying; that witness went to them again the next morning, soon after five o'clock; the prisoner was not there, nor anybody but the three children, who were asleep; that witness went home, and about eight o'clock made some coffee and took to them, with a piece of bread and some coals, and made a fire; that about noon witness went in again and found them alone, not in bed; that the two girls were perfectly naked, and the little boy had nothing but a piece of an old apron about him; that she saw no other clothes