that the children might have put on; that witness gave them a mess of turnips and potatoes; that at night witness begged some food for them, .which they had. They were alone that night as far as witness knew; that on the following day (Wednesday), witness gave the children some bread, and afterwards took them to the parish workhouse, and that on next day (Thursday), about eight o'clock in the morning, the prisoner came to witness and asked her if she knew where her children were, and she told her; she said she went on board a barge there, and they took her to Maidstone, and that she had walked back (being a distance of eight miles). Witness was of opinion that the children did suffer in some degree from want of proper nourishment and clothing, though not not to any serious extent. The evidence of Mary Anne Crane was confirmed by other witnesses. It was, therefore, proved that the prisoner had left her children without food or clothing, and remained absent from five o'clock on Monday evening, till eight o'clock on Thursday morning; that from their tender age the children were unable to provide for themselves; that the prisoner had the means of providing for them, and that but for the attention of a poor neighbor, the children must have suffered more severely, and might probably have died for want of food, but the children did not actually suffer any serious injury. The court inclining to the opinion that the conduct of the prisoner was a misdemeanor at common law, the jury thereupon found the prisoner guilty upon all the counts.

But, having some doubts on the subject, the court respited the judgment, and reserved the case for the opinion of the Court of Criminal Appeal. The doubts were upon the following points: First, whether the conduct of the prisoner, in absenting herself as mentioned in the above statement, amounts to misdemeanor at common law, irrespective of any actual injury to the children, which might be the result; whether, therefore, the averments in the indictment, that the children were thereby "greatly injured and weakened," were material and necessary to be proved? Secondly. If actual injury to the children is necessary in order to constitute the offense, and the averments, therefore, necessary to be proved, whether the injury, which to some extent the children must have sustained, was sufficient in degree to constitute the offense and support the averments?

The case was not argued by counsel on either side.

JERVIS, C. J. We are of opinion that this conviction is wrong. The chairman has submitted two questions to us. The first is, whether the conduct of the prisoner amounted to a misdemeanor independently of any injury to the children; in other words, whether it was necessary to prove the averments in the indictment, which charged that the children were greatly injured and weakened by the conduct of the prisoner.

We are of opinion that these averments are material and ought to be proved, and, therefore, that an offense would not be established without making out an injury to the children. In Hogan's Case1 it is expressly said that, in order to support an indictment for neglecting to supply with food a child of tender years, it must be shown that the neglect was followed by injury to the health of the child. The next question is, whether the injury, which to some extent the children must have sustained, was sufficient in degree to constitute the offense and support the averments. It is always for the jury to ascertain the fact whether actual injury has been done; but here it is found that the children did not actually suffer any serious injury, though they must have suffered in some degree, and that is not, in our opinion, sufficient to support the conviction. In Friend's Case, which was an indictment for refusing to supply an apprentice with necessaries, the opinion of the judges was, that to constitute an indictable breach of duty, it must be shown that the withholding of necessaries occasioned injury to the health of the apprentice. This view is confirmed to some extent by the 14th and 15th Victoria,3 the first section of which treats the neglect to supply necessary food as an offense of the same degree as other conduct, whereby the life of the apprentice is endangered, or the health permanently injured, or likely to be so. The conviction is therefore wrong. Judgment reversed.

2

NEGLECT

- POOR PARENT-NOT OBLIGED TO BORROW MONEY.

In the English Court of Criminal Appeal, November, 1851.

A Parent is Not Indictable for failing to bury his deceased child, where he has no means to do so. And the fact that he can obtain the means by going in debt does not alter the rule.

William Vann, the defendant in this case, was tried before J. HILDYARD, Esq., the Recorder of the borough of Leicester, at the last Michaelmas Quarter Sessions of the peace for the said borough, for a nuisance in having refused and neglected to bury the dead body of his deceased child, whereby and by reason of the decomposition whereof various noisome stenches arose, and the air was thereby greatly

1 2 Den. C. C. 277.

2 R. & R. 20.

3 ch. 11.

infected and rendered unwholesome, to the great damage and common nuisance of the Queen's subjects.

The defendant, at the time of the decease of his child, which took place on the 17th of August last, was a pauper who had been receiving parochial relief from the Parish of St. Margaret in the Leicester Union, and soon after the child's death he applied to the relieving officer of that parish for assistance to bury the child. It appeared in evidence that an order of the Poor Law Commissioners, under the provisions of the statute 4 and 5 William IV.1 had been issued to the guardians of the Leicester Union, which provided that in certain cases relief might, if the guardians thought fit, be given by way of loan, and that one of such cases was, "" when the pauper should receive relief for the purpose of defraying the expenses, either wholly or in part, of the burial of any of his family." It further appeared in evidence, that the guardians had laid down a rule (which rule was printed and circulated in the Union), "that the head of the family, or person applying for the assistance of the parish in burying any poor person, must sign an undertaking to repay the expenses incurred, in case the guardians shall deem him or her able to do so." It further appeared, that at the time the defendant applied to the relieving officer for assistance to bury his child he was required, in conformity to the rule laid down by the guardians, to sign a document to the following effect: —

"I, William Vann, the undersigned, do hereby agree, on demand, to repay to the guardians of the poor of the Leicester Union the sum of seven shillings, advanced to me by way of loan in payment of coffin and ground for my child."

The defendant refused to sign this document, and the relieving officer refused to render him any assistance in the burial of the child. It was proved that the defendant removed the body of the child from his house to a yard in the neighborhood, and that the stench arising from it amounted to a nuisance.

The learned Recorder told the jury that the defendant was bound to provide for the burial of his deceased child, if he could in any lawful way procure the means for so doing; and that, as the guardians were entitled under the order of the Poor Law Commissioners to give relief for the purposes of burial by way of loan and as the defendant had been offered such relief in that manner, he was bound to receive it, and that consequently he was not excused from his liability to be convicted upon the indictment for the nuisance, if the jury believed the facts. The jury found the defendant guilty.

The Recorder reserved a case for the opinion of the Court of Crim

1 ch. 76, sec. 58.

inal Appeal, whether the defendant, by refusing to incur the obligation of a debt, rendered himself, as a consequence of that refusal, liable to a prosecution for the above misdemeanor. The judgment upon the conviction was postponed, and the defendant was discharged, on recognizance of bail to appear and receive judgment at the sessions next after this case should be decided.

On the 22d November, A. D. 1851, this case was argued before Lord CAMPBELL, C. J., ALDERSON, B., PLATT, B., TALFOURD, J., and MARTIN, B.

O'Brien, for the Crown.

PLATT, B. What public duty has a man to incur a debt?

O'Brien. I submit that it was the duty of the prisoner to provide for the burial of his deceased child, if he could have done so by any lawful

means.

LORD CAMPBELL, C. J. Is it an indictable misdemeanor to refuse to incur a debt?

O'Brien. It is an indictable offense to neglect to obtain burial for a man's child, when he can obtain it.

LORD CAMPBELL, C. J. No doubt a man is bound, if he has the means to give his deceased child Christian burial;1 but unless he has the means, he is not indictable for neglecting to do so.

O'Brien. Then I submit that he had the means of procuring the child's burial.

ALDERSON, B. Not without getting into debt.

O'Brien. The prisoner is also liable for the nuisance occasioned by the removal of the dead body to the yard.

PLATT, B.
O'Brien.

Have you a count in the indictment for that?
Yes.

LORD CAMPBELL, C. J. The only question reserved for our consideration is, whether the defendant by refusing to incur the obligation of a debt, rendered himself, as a consequence of that refusal, liable to a prosecution for a misdemeanor?

O'Brien. Then I shall confine myself to that point; and I contend that the prisoner had the means of providing for the burial of his child inasmuch as he was offered the money necessary for the purpose, as a loan.

1 In Rex. v. Lynn, 2 T. R. 734; 1 Leach, 497, which was an indictment for taking up dead bodies, the court observed "that the offense was cognizable in a criminal court as being highly indecent, and contra bonos mores, at the bare idea alone of which nature revolted." See, also, MS. note by Abrey, J., Willes, 537. And see Young's

Case, 2 T. R. 734, which was a conspiracy to prevent the burial of a person who died in a workhouse. As to the burial of shipwrecked persons, and the punishment of parish officers neglecting for twelve hours to re move such bodies after notice, see 48 Geo. III., ch. 75, sec. 7.

Lord CAMPBELL, C. J. If a Jew was to offer him the money at fifty per cent, was he bound to accept it?

O'Brien. The same duty rests upon a man to provide for the burial of his deceased child, as to afford maintenance to a living one. Now, if a baker had offered to supply bread to a man for his family, on credit, on the condition that the man was to pay for it, and if the man said "No," and, rather than accept the bread on credit had allowed his child to perish of hunger, would he not have been liable to be punished criminally for neglecting to avail himself of the means offered to him. Again, if the prisoner's child had died in the house of another person, and that person had defrayed the expenses of the burial, would not the father have been liable to him for such expenses? In the case of Ambrose Kenison,1 it was held that when a husband neglected to provide for the burial of his deceased wife, and another person had undertaken to provide for the burial of the body, the husband was liable to be sued for the amount.

LORD CAMPBELL, C. J. But has the prisoner committed a crime if he has not the means of providing burial for the child?

O'Brien. That he has not the immediate means can make no difference when he could have procured them. The means were offered to him.

TALFOURD, J. The document which the prisoner was required by the relieving officer to sign was a promise to pay on demand.

O'Brien. This is a question of nuisance.

LORD CAMPBELL, C. J. The question is one of ability. It was not left to the jury whether the prisoner had the means to provide for the burial of his child, but they were directed and peremptorily told, that he was bound to receive the loan offered to him by the relieving officer.

O'Brien. It is found in the case that the poor law commissioners had aid down a rule authorizing the guardians of the Union to advance money, by way of loan, to persons in indigent circumstances, to assist them in paying the expenses of the burial of any of their family, and that, in conformity with that rule, and by the authority of the guardians, the relieving officer offered the prisoner money sufficient for the burial of his child. He refused to accept the loan, and by his refusal he voluntarily placed himself in circumstances of inability. But, I submit, that he had the means of providing for the burial within his power, and that, therefore, he is liable for the nuisance occasioned by allowing the dead body of his child to be exposed without Christian burial. No counsel appeared for the prisoner.

LORD CAMPBELL, C. J.

I am clearly of opinion, that on the ques

1 20 L. J. (N. s.) C. P. 135.