State v. Chenoweth
| Decision Date | 07 June 1904 |
| Docket Number | 19,162 |
| Parties | The State v. Chenoweth |
| Court | Indiana Supreme Court |
From Clinton Circuit Court; J. V. Kent, Judge.
Prosecution by the State of Indiana against Joseph Chenoweth for involuntary manslaughter for permitting his infant child to die without medical attention. From a judgment on a verdict of acquittal directed by the court for failure of evidence the State appeals.
Affirmed.
W. L Taylor, Attorney-General, W. S. Sims, Pros. Atty., C. C Hadley, Merrill Moores, Rowland Evans, H. C. Sheridan, L. J. Curtis and W. F. Palmer, for State.
M. A. Morrison, W. A. Staley, Guenther & Clark and W. R. Moore, for appellee.
Appellee was tried in the lower court before a jury upon an indictment for the commission of the crime of involuntary manslaughter. At the close of the evidence introduced by the State, the court ruled thereon that, as a matter of law, it was not sufficient to authorize a conviction of the defendant, and directed the jury to return a verdict of not guilty, which was accordingly done. A judgment was rendered on the verdict, discharging the defendant. From this judgment the State appeals, and has assigned as errors that the court erred in holding that the indictment did not charge a public offense, and in directing a verdict of not guilty upon the evidence.
The indictment, among other things, charged that the appellee was the father of, and had the custody of one John D. Chenoweth, an infant child of the tender age of nine months, and that said infant on and from the 27th day of August, 1899, at the county of Clinton and State of Indiana, was sick, feeble, and in a helpless condition, and was in great need of the services of a physician and medical attention and treatment; that the appellee had sufficient means and was able to secure the services of a physician to attend to his said child and give it proper medical treatment in its then sick and feeble condition, but that he feloniously and wilfully neglected and refused to provide said child with medicine which was necessary for it in its sick condition, but permitted it to linger and languish from the said 27th day of August until the 10th day of September, 1899, on which day it then and there at the said county and State, by reason of the said mortal sickness, died, wherefore it is alleged that the defendant "feloniously did involuntarily kill and slay" said John D. Chenoweth.
Counsel for appellee urge that this appeal on the part of the State can not be sustained for two reasons: (1) The indictment does not charge a public offense; (2) the evidence is not properly in the record. There is nothing in the record to disclose that the court held that the indictment did not charge a public offense, except the following concession which is found contained in part of the charge which the court gave to the jury as follows:
The indictment in question is loosely drafted, and may be said to be open to objections; but the court did not direct a verdict upon the ground of the insufficiency of the pleading, but for the reason that it held that the evidence introduced upon the part of the State would not sustain a conviction. Under the circumstances, the sufficiency of the indictment can not be reviewed, as that question is not presented by the record.
The trial court, in making up the record in order to present for review in this appeal the question reserved by the State, states that there was evidence introduced which tended to prove, among others, the following facts: Appellee was the father of the deceased child, and had the custody thereof. The child was eight months old, and in July, 1899, it became sick. It had a cough--something in the nature of whooping cough. In fact, the defendant and his wife believed that the child was afflicted with whooping cough. It continued gradually to grow worse and lingered until September 10, 1899, when it died at its father's house in Clinton county, Indiana. A post-mortem examination disclosed that the child died of what the physicians denominated "double bronco-pneumonia." The defendant had means sufficient to have employed a physician to attend the child in its sickness, and there were numerous physicians within a mile and a half of his home. It is shown that he refused to call a physician to attend the child, and refused to give it any medicine or to seek medical advice in any manner, although neither he nor his wife, nor anyone who nursed the child during its sickness, had any knowledge of medicine or diseases. The excuse which the defendant offered for his refusal to call a physician or to give the child medicine was because he believed in "divine healing," and offered and cited the "Word of God" as a justification of his course of conduct. It is shown that he procured an "elder" to come to his house on September 4, 1899, and this elder appears to have annointed the child with oil, and prayed to God for the healing thereof. The defendant (appellee herein) also communicated with one John Alexander Dowie, of Chicago, and procured him to pray to God for the restoration of the child. The neighbors of the defendant advised him to call a physician, but he refused to heed their advice. About two weeks prior to the death of the child he informed one of his neighbors that it was "going down all the time." Medical experts testified on the trial that had a competent physician been called, and proper medicine administered, the life of the child would at least have been prolonged, but to what extent was not stated. They further testified that when the disease of bronco-pneumonia afflicted a child of the age of eight months, it usually proved fatal. The expert witnesses were unable to state whether in case a physician had been called to attend the child after bronco-pneumonia developed its life could have been saved.
The learned counsel for the State have, in their briefs, very ably discussed the question which they seek to present, and have cited us to many authorities in support of their contention that the appeal herein should be sustained. They argue that under the facts as shown, and the law applicable thereto, appellee, in his refusal to provide his infant child, when sick, with necessary medicine and the services of a physician, violated a duty which, under the law, he owed to said infant and helpless child; and that his neglect to make the provisions in question was an unlawful act, both at common law and under the statutes of this State. It is contended that his course of conduct in the matter is forbidden and rendered unlawful by § 2240 Burns 1901, which reads as follows: "Any person who shall cruelly ill treat, abuse, overwork or inflict unnecessary cruel punishment upon any infant or minor child, and any person having the care, custody or control of any minor child, who shall wilfully abandon or neglect the same, shall be guilty of a misdemeanor, and upon conviction thereof by any justice of the peace, mayor, police judge or criminal court, shall be fined not less than $ 5 nor more than $ 50 for each offense, to which may be added imprisonment not exceeding thirty days." It is asserted that appellee's wilful neglect, under the circumstances, to provide necessary medical treatment for his child, as shown, constituted the commission of an unlawful act, under this statute, which led up to and caused the death of the child in question. Hence it is argued that he, under the law, is guilty of the crime of involuntary manslaughter. It is contended that his refusal to procure a physician or to provide in any manner the necessary medicine for the sick child was a wilful neglect, within the meaning of the above statute.
We regret that we are prevented by the condition of the record in this appeal from deciding the important public question which the State seeks to have reviewed, and thereby determine and settle in this State the law applicable to cases like the one at bar. It is certainly true that the conduct...
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