The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-12-03

of marshrosemary and the bark of the
bayberry bush; the powder was Indian
| tobacco or Lobelia inflata. There was
| no evidence that defendant had Killed
| any one else; on the contrary, there
was testimony of benefit i'm one case
| from his treatment The court there
| fore, did not nut him to his defence;
| but, ruling that the commonwealth had
| failed 10 make out case even OF
| granddaughter, charged the jury to this
effect: Deceased, beyond reasonable
| doubt, lost his life by defendants un-
| skilful treatment. But there could be-
| no murder, unless the prisoner was
| wilfuly regardless of his social duty
| and determined OF mischief, of which
! there was no proof. on the contrary
| his intent was To cure. Neither could
there be manslaushter; for. although
| defendants Ignorance was very APP
| parent, nevertheless, if he honestly In
tended to cure, he could not be guilty
Of that crime on account of death un-
expectedly ensuing from his treatment,
unless he was engaged I'm an unlawful
act; and there was no law i'm Massa-
chusetts forbidding any man, honestly
intending to cure, from prescribing for
a sick man with the latter's consent
THE LAW LAID DOWN.
The court cited Lord Hale an au-
thurity for the proposition that "if II
physician, whether licensed or not
gives a person "a potion. without any
intent of dong him any bodily hurt,
hut with intent to cure or prevent Il
disease, and, contrary to the expecta-
tion of the physician. IL kills him. he
is not guilty of murder or manslaugh-
ter" and, accordingly, laid down this
law for the case:
The death of II man. killed by vol
unfairly following IL medical prescrir-
tion. cannot be adjudged felony in
the party prescribing, unless he, how
ever ignorant OF medical science in
general had 50 much knowledge or
probable information of the fatal ten
den"N of the prescription that it may
t." reasonably presumed by the jury to
be the effect of obstinate, wilful rash
Hess. at the least. and not OF an hon
est intention and expectation to cure"
The Cuur, further said that if the
solicitor general had proved, as he
promised to do in his opening. that
r Thomson had killed others by his
trea atment, it would have been left to
the jury To say whether on the whole
evidence they would sustain the
charge of manslaughter which they
| might justly have done if they had
found that defendant acted from OBJ
stinate rashness and foolhardy pre-
sumption, although without intent "a
do Lovett bodily harm" for it would
not have been lawful for him again to
administer a medicine of which he had
fatal experience" Upon this reason
ing Thomson was acquitted; and his
case having proved, as a precedent, a
strong shield for manslaughtering
charatans. by establishing what has
been called the humane American rule
as ContraSted with the strict rule of
common law. IL is well to state sue
cinctly the reasons why he escaped
conviction, viz: OD because there war-
no statute in Massachusetts prohibit
| ing medical practice by the ignorant
and unlicensed; (2D because there was
no proof that Thomson (a) knew his
treatment To be dangerous or (b) had
any other intent than to cure in gouC
faith.
ANOTHER CASE.
In 1872 the question arose in New
York, upon an application for a bill of
discovery, i'm March VS.. Davidson c
Paige 5S0 whether ii was slanderou!
to have said of the complainant tina
he was guilty of malpractice as a can,
Ger doctor and had killed woman il
Schoharie. Dawson not being licensed
to practise. the court held that--inas
much as he might be guilty of man
slaughter. for that reason, if the pa
tient died under his treatment-the
words might be slanderOus.
1t thus appears that--even accepting
the benign rule OF Thomson's case
which, as we shall see presently, wa
i'll stated-whereVer a statute makes
the unlicensed practice Of medicine
misdemeanor, if death result from the
treatment of nOn-licentiate he is
guilty of manslaughter at least, no
matter how honest HE intent. This Is
the rule of common law and of the
New York penal code, which defines
as manslaughter the killing of one hu.
, man being by the act, procurement, ol
omission of another without design tC
effect death, by person engaged n
) committing or attempting to commit
a misdemeanor affecting the person ol
property either of the person killed or
of another
, In 1874 the case of Rice VS.. The state
Rice, "a ThOmsonian. undertook by tn,
same methods used ON Lovett to cure
! Mrs. Keithley of sciatica. She had no.
, been 50 well for years as when he be-
gan to treat her, and was within sS
, weeks of giving birth to her fourth
child Under his system she fell into
premature labor and died within abou'
ten days, He was convicted of man,
slaughter; but the appellate court
adopting the rule i'm Thnmson's case
the facts being substantially the same
reversed the judgment.
AN IOWA CASE.
In 1881 another case arose. i'm Iowa
State vs. Schulz (55 Ia. 62S). Schul,
treated a sick woman by acupuncturt
and an irritating oil, according to the
system of Herr Baunscheidt, who
having been much benefited by thu
billings of small insects, sought to Civ,
the world. for a consideration. a simu
lacrum of his experience. Defendant
admitted that he did not know the
composition of the oil, that beins
Baunschedit's secret. The patien
died, Schulz claimed that if he 'haC
not been interfered with he could have
helped her, and produced twenty-thre,
witnesses to testify that Baunscheidt
ismus, as administered by him, haC
benefited them. Schulz was convicted
hut the appellate court reversed tn,
judgment, following the cases o
Thomson and Rice, and expressed thi
conclusion: The interests of society
will be subserved by holding a physi
clan civilly liable in damages for the
consequences Of his ignorance, withou
imposing upon him criminal liabilitie