Westrup v. Commonwealth

• Decision Date: 30 May 1906
• Citation: 93 S.W. 646,123 Ky. 95
• Parties: WESTRUP v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

93 S.W. 646

123 Ky. 95

WESTRUP v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 30, 1906

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Arthur Westrup was convicted of involuntary manslaughter, and he appeals. Reversed and remanded.

R. W Nelson and A. M. Caldwell, for appellant.

W. A Burkamp, N. B. Hays, and C. H. Morris, for the Commonwealth.

SETTLE J.

The appellant was indicted by the grand jury of Campbell county and tried in the circuit court of that county for involuntary manslaughter, alleged to have been committed by willfully neglecting to furnish his wife, then pregnant and about to be delivered of a child, with such care and attention as were necessary during her confinement in childbirth, thereby causing her death. Upon the trial the jury found appellant guilty as charged and fixed his punishment at imprisonment in the county jail eight months, in conformity to which judgment was duly entered.

Waiving consideration of the objections made by appellant to the indictment, we will rest our decision of the case upon the second contention presented in the motion and grounds for a new trial, and now relied on by appellant's counsel for a reversal, viz., that the verdict was contrary to and not sustained by the evidence. "Involuntary manslaughter is the killing of another person in doing some unlawful act not amounting to a felony, nor likely to endanger life, but without an intention to kill, or where one kills another while doing a lawful act in an unlawful manner." Roberson's Ky. Crim. Law, § 198; Connor v. Com., 13 Bush, 718; Trimble v. Com., 78 Ky. 177; York v. Com., 82 Ky. 368. "Any person neglecting to discharge a duty required of him, either by law or contract thereby causing the death of another, is guilty of involuntary manslaughter. Thus, if a parent or master neglects to supply food and clothing or medical attendance to a child or apprentice whom he is under a legal obligation to maintain, and the child or apprentice dies of the neglect, he is guilty of involuntary manslaughter." Roberson's Ky. Crim. Law, § 204. Where the husband neglects to provide necessaries for his wife, or medical attention in case of her illness, he will be guilty of involuntary manslaughter provided it appear that she was in a helpless state and unable to appeal elsewhere for aid, and that the death, though not intended nor anticipated by him, was the natural and reasonable consequence of his negligence. Roberson's Ky. Crim. Law, § 204; Wharton's Crim. Law, § 332. A criminal intent is not necessary in involuntary manslaughter; and, there being no statutory punishment provided for the offense, it is therefore punishable by fine or imprisonment in jail, one or both, at the discretion of the jury, which is the common-law punishment for offenses for which no punishment is provided by statute. After this brief statement of the law as to involuntary manslaughter, it remains to be seen whether, under the evidence appearing in the record, appellant's conviction was authorized.

According to the evidence, appellant's wife, Florence Westrup, died February 27, 1905, about two hours after giving birth to a child. She and appellant were married in Chicago in the year 1900, but had been living in Newport but a few months before her death, and had formed very few acquaintances there. They were an affectionate couple, though both were reserved in disposition and positive in their beliefs. He is an artist and previous to his wife's death was at work for the Donaldson Lithographing Company, earning $20 per week, and his wages, when received by him, were delivered to his wife for safe-keeping and use in their joint support. They were housekeeping in rented rooms of a house which was in part occupied by other renters, and the household work was done by the wife with such assistance as the husband would take time from his own work to give her. The evidence further showed that the wife became pregnant, and was of opinion that her child would be born the 4th of March, 1905; that she was a woman of unusual intelligence, and, though never before with child, had some peculiar ideas as to the care to be taken of herself during pregnancy and of the child after its birth, in which her husband seems to have shared; that she was a strong believer in the laws of nature, and read many books on that subject and medicine, among which was one called "Tokology," written by Dr. Stockham, a female physician, of Chicago, with whom she corresponded before the birth of her child; that as a result of her reading and correspondence with the female doctor appellant's wife conceived a great aversion to physicians, and contended that they were too ready to resort in cases of childbirth to the use of instruments, which often resulted in death or injury to both mother and child, and declared her purpose to do without the services of one at the birth of her child. Adhering to this view, she by letter requested a sister of her husband, living in another state, to be with her in her confinement, naming March 4th as the date, and the sister promised to do so, and, without knowing of the illness of appellant's wife, did in fact reach Newport on the day of and a few hours after her death. It also appeared from the evidence that appellant's wife was seized...