People v. Pierson

• Decision Date: 13 October 1903
• Citation: 176 N.Y. 201,68 N.E. 243
• Parties: PEOPLE v. PIERSON.
• Court: New York Court of Appeals Court of Appeals

176 N.Y. 201

68 N.E. 243

PEOPLE

v.PIERSON.

Court of Appeals of New York.

Oct. 13, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

J. Luther Pierson was convicted of misdemeanor, and from an order of the Appellate Division (81 N. Y. Supp. 214 reversing such conviction, the people appeal. Reversed.J. Addison Young, for the People.

Robert E. Farley, for respondent.

HAIGHT, J.

The indictment accused the defendant of the crime of violating section 288 of the Penal Code in that he ‘did willfully, maliciously, and unlawfully omit, without lawful excuse, to perform a duty imposed upon him by law, to furnish medical attendance for his said (J. Luther Pierson's) female minor child, under the age of two years, the said minor being then and there ill and suffering from catarrhal pneumonia, and he, the said J. Luther Pierson, then and there willfully, maliciously, and unlawfully neglecting and refusing to allow said minor to be attended and prescribed for by a regularly licensed and practicing physician and surgeon, contrary to the form of the statute in such case made and provided.’

The facts disclosed upon the trial are without substantial dispute, and are in substance as follows: The defendant and his wife lived at Valhalla, near White Plains, N. Y., with an infant girl, 16 1/2 months old, whom they had adopted. In January, 1901, the child contracted whooping cough, which continued to afflict her until about the 20th day of February, at which time catarrhal pneumonia developed, resulting in death on the 23d of February, 1901. The defendant testified that for about 48 hours before the child died he observed that her symptoms were of a dangerous character, and yet he did not send for or call a physician to treat her, although he was able financially to do so. His reason for not calling a physician was that he believed in Divine healing, which could be accomplished by prayer. He stated that he belonged to the Christian Catholic Church of Chicago; that he did not believe in physicians, and his religious faith led him to believe that the child would get well by prayer. He believed in disease, but believed that religion was a cure of disease.

In submitting the case to the jury the trial court charged, in substance, that, before the jurors could convict the defendant, they must find that he knew that the child was ill, and deliberately and intentionally failed or refused to call a physician, or to give the child such medicines as the science of the age would say would be proper that a child in its condition should have; that, if at the time he refused to call a physician, he knew the child to be dangerously ill, his belief constitutes no defense whatever to the charge made. In other words, no man can be permitted to set up his religious belief as a defense to the commission of an act which is in plain violation of the law of the state. The jury rendered a verdict of guilty of the crime as charged. The Appellate Division has reversed, but, as we have seen, has examined the facts and found no error therein, but rests its reversal upon what it considers to be errors of law. The majority of the court appears to have entertained the view that the indictment failed to charge a criminal offense, for the reason that it did not contain an allegation that the case was one in which a regularly licensed and practicing physician ought to have been called.

Section 288 of the Penal Code, so far as is material upon the question under consideration, provides as follows: ‘A person who (1) willfully omits, without lawful excuse, to perform a duty, by law imposed upon him, to furnish food, clothing, shelter, or medical attendance to a minor, * * * or (4) neglects, refuses or omits to comply with any provisions of this section, * * * is guilty of a misdemeanor.’ It would seem that the legislative intent in adopting this provision of the Code is reasonably clear, although posibly more precise language could have been employed. It contemplates that there are persons upon whom the law casts a duty of caring for minors, but it does not specify the persons. They are, however, those upon whom the duty is ‘by law imposed.’ They are designated in the statutes and in the common law as the parents, guardians, or those who by adoption or otherwise have assumed the relation in loco parentis. The duty of such a person is specified by the provisions of the section. It is ‘to furnish food, clothing, shelter, or medical attendance.’ Giving the statute a reasonable construction, by applying the rule of necessity, it is apparent that it means the necessary food, clothing, shelter, or medical attendance required for the preservation of the health and life of the child. We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household nursing by members of the family; that a reasonable amount of discretion is vested in parents charged with the duty of maintaining and bringing up infant children; and that the standard is at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician. But is it necessary that all of this should be set forth in the indictment? The indictment has alleged that the defendant unlawfully omitted to perform a duty imposed upon him, to furnish medical attendance for the child. If the medical attendance was not necessary, it was not a duty required of the defendant to furnish it; but, if it was necessary, then it was his duty to furnish it, and his failure to do so would be an unlawful omission to perform a duty imposed, as charged in the indictment. We therefore think that the criticism made upon the indictment cannot be sustained.

It is now contended that section 288 of the Penal Code does not, in terms or in effect, make it the duty of any one to furnish medical attendance to a minor child, and that under the common law it is not part of the duty of parents to provide medical attendance for their children. We have already considered, in part, the provisions of the section, and have indicated our conclusion that the clause, ‘a duty by law imposed,’ as found in this section, had reference to the person upon whom the law imposed the duty of caring for minors, leaving it to the provisions of the section to particularize as to the character of those duties. In other words, that the section, properly construed, means that a person upon whom the law has imposed the duty to care for a minor, who willfully omits, without lawful excuse, to furnish such minor with necessary food, clothing, shelter, or medical attendance, is guilty of a misdemeanor. Under this construction of the statute, the duty of parents to furnish medical attendance for their children is expressly provided for, and is made obligatory upon them, even if they were exempt from such duty under the common law. These views are in harmony with section 289 of the Penal Code, which provides that ‘a person who (1) willfully causes or permits the life or limb of any child actually or apparently under the age of sixteen years to be endangered, or its health to be injured, or its morals to become depraved,* * * is guilty of a misdemeanor,’ and are also in accord with the view taken by this court in the case of Cowley v. People, 83 N. Y. 464, 38 Am. Rep. 464, in which the judgment of conviction was sustained, where the indictment charged the injury to the child's health by reason of a neglect to furnish and administer to it proper and sufficient medicine and furnish proper medical attendance, under the latter section of the Code.

We are thus brought to a consideration of what is meant by the term ‘medical attendance.’ Does it mean a regularly licensed physician, or may some other person render ‘medical attendance?’ The foundation of medical science was laid my Hippocrates, in Greece, 500 years before the Christian era. His discoveries, experiences, and observations were further developed and taught in the schools of Alexandria and Salerno, and have come down to us through all the intervening centuries, yet medicine, as a science, made but little advance in northern Europe for many years thereafter-practically none until the dawn of the eighteenth century. After the adoption of Christianity by Rome, and the conversion of the greater part of Europe, there commenced a growth of legends of miracles connected with the lives of great men who became benefactors of humanity. Some of these have been canonized by the church, and are to-day looked upon by a large portion of the Christian world as saints who...