
    * Commonwealth versus Samuel Thompson.
    
    If one, assuming the character of a physician, through ignorance administer medicine to his patient, with an honest intention and expectation of a cure, but which causes the death of the patient, he is not guilty of felonious homicide.
    At the beginning of the term, the prisoner Thompson was indicted for the wilful murder of Ezra Lovett, Jun., by giving him a poison, called lobelia, on the ninth day of January last, of which he died on the next day. On the twentieth day of December, at an adjournment of this term, the prisoner was tried for this offence, before the chief justice, and the judges Sewall and Parlcer.
    
    On the trial, it appeared in evidence, that the prisoner, some time in the preceding December, came into Beverly, where the deceased then lived, announced himself as a physician, and professed an ability to cure all fevers, whether black, gray, green, or yellow; declaring that the country was much imposed upon by physicians, who were all wrong, if he was right. He possessed several drugs, which he used as medicines, and to which he gave singular names. One he called coffee ; another, well-my-gristle; and a third, ramcats. He had several patients in Beverly and in Salem, previous to Monday, the second of January, when the deceased, having been for several days confined to his house by a cold, requested that the prisoner might be sent for as a physician.
    He accordingly came, and ordered a large fire to be kindled to neat the room. He then placed the feet of the deceased, with his shoes off, on a stove of hot coals, and wrapped him in a thick blanket, covering his head. In this situation he gave him a powder in water^ which immediately puked him. Three minutes after, he repeated the dose, which in about two minutes operated violently. He again repeated the dose, which in a short time operated with more violence. These doses were all given within the space of half an hour, the patient in the mean time drinking oo- [ * 135 J piously of a warm decoction, called by the prisoner * his coffee. The deceased, after puking, in which he brought up phlegm, but no food, was ordered to a warm bed, where he lay in a profuse sweat all night. Tuesday morning the deceased left his bed, and appeared to be comfortable, complaining only of debility ; and in the afternoon he was visited by the prisoner, who administered two more of his emetic powders in succession, which puked the deceased, who, during the operation, drank of the prisoner’s coffee, and complained of much distress. On Wednesday morning, the prisoner came, and after causing the face and hands of the deceased to be washed with rum, ordered him to walk in the air, which he did for about fifteen minutes. In the afternoon, the prisoner gave him two more of his emetic powders, with droughts of his coffee. On Thursday, the deceased appeared to be comfort able, but complained of great debility. In the afternoon, the pris oner caused him to be again sweated, by placing him, with another patient, over an iron pan, with vinegar heated by hot stones put into the vinegar, covering them, at the same time, with blankets. On Friday and Saturday, the prisoner did not visit the deceased, who appeared to be comfortable, although complaining of increased debility. On Sunday morning, the debility increasing, the prisoner was sent for, and came in the afternoon, when he administered another of his emetic powders with his coffee, which puked the deceased, causing him much distress. On Monday, he appeared comfortable, but with increasing weakness, until the evening, when the prisoner visited him, and administered another of his emetic powders, and in about twenty minutes repeated the dose. This last dose did not operate. The prisoner then administered pearlash mixed with water, and afterwards repeated his emetic potions. The deceased appeared to be in great distress, and said he was dying. The prisoner then asked him how far the medicine had got down. The deceased, laying his hand on his breast, answered here; on which the prisoner observed that the medicine would soon get down, * and unscrew his navel; mean- [*186] ing, as was supposed by the hearers, that it would operate as a cathartic. Between nine and ten o’clock in the evening, the deceased lost his reason, and was seized with convulsion fits; two men being required to hold him in bed. After he was thus seized with convulsions, the prisoner got down his throat one or two doses more of his emetic powders; and remarked to the father of the deceased, that his son had got the hyps like the devil, but that his medicines would fetch him down; meaning, as the witness understood, would compose him. The next morning, the regular physicians of the town were sent for, but the patient was so completely exhausted, that no relief could be given. The convulsions and the loss of reason continued, with some intervals, until Tuesday evening, when the deceased expired.
    From the evidence it appeared that the coffee administered was a decoction of marsh-rosemary, mixed with the bark of bayberrybmh, which was not supposed to have injured the deceased. — But the powder, which the prisoner said he chiefly relied upon in his practice, and which was the emetic so often administered by him to the deceased, was the pulverized plant, trivially called Indian tobacco. A Dr. French, of Salisbury, testified that this plant, with this name, was well known in his part of the country, where it was indigenous, for its emetic qualities; and that it was gathered and preserved by some families, to be used as an emetic, for which the roots, as well as the stalks and leaves, were administered : and that four grains of the powder was a powerful puke. — But a more minute description of this plant was given by the Rev. Dr. Cutler. He testified that it was the lobelia infiata of Linnaeus;  that many years ago, on a botanical ramble, he discovered it grow- [ * 137 ] ing in a field not far from * his house in Hamilton; that, not having Linnceus then in his possession,- he supposed it to be a non-descript species of the lobelia; that by chewing a leaf of it, he was puked two or three times; that he afterwards repeated the experiment with the same effect; that he inquired oí his neighbor, on whose ground the plant was found, for its trivial name. He did not know of any, but was apprized of its emetic quality, and informed the doctor that the chewing of one of the capsules operated as an emetic, and that the chewing more would prove cathartic. In a paper soon after communicated by the doctor to the American Academy, he mentioned the plant, with the name of the lobelia medico. He did not know of its being applied to any medical use until the last September, when, being severely afflicted with the asthma, Doctor Drury, of Marblehead, informed him that a tincture of it had been found beneficial in asthmatic complaints. Dr. C. then made for himself a tincture, by filling a common porter bottle with the plant, pouring upon it as much spirit as the bottle would hold, and keeping the bottle in a sand heat for three or four days. Of this tincture he took a table-spoonful, which produced no nausea, and had a slight pungent taste. In ten minutes after, he repeated the potion, which produced some nausea, and appeared to stimulate the whole internal surface of the stomach. In ten minutes, he again repeated the potion, which puked him two or three times, and excited in his extremities a strong sensation, like irritation; but he was relieved from a paroxysm of the asthma, which had not since returned. He had since mentioned this tincture to some physicians, and has understood from them, that some patients have been violently puked by a tea-spoonful of it; but wbethei this difference of effect arose from the state of the patients, or from the manner of preparing the tincture, he did not know.
    
      
       The reporter, not being present at this trial, was favored with a report of it by a highly-respected friend.
    
    
      
       Lobelia. Class Pentandria. Order Monogynia. Capsule 2 or 3 celled: corol .rregular, cloven: anther® united: stigma simple. Species Inflala: .stem erect. eaves ovate, slightly serrate, longer than the peduncle : capsules inflated.
      
        Turt. Lin. vol. 4, pp. 259, 330.
    
   * The solicitor-general also stated that, before the de- [ * 138 ] ceased had applied to the prisoner, the latter had administered the like medicines with those given to the deceased, to several of his patients, who had died under his hands ; and to prove this statement, he called several witnesses, of whom but one appeared. He, on the contrary, testified that he had been the prisoner’s patient for an oppression at his stomach ; that he took his emetic powders several times in three or four days, and was relieved from his complaint, which had not since returned. And there was no evidence in the cause, that the prisoner, in the course of his very novel practice, had experienced any fatal accident among his patients.

The defence stated by the prisoner’s counsel was, that he had, for several years, and in different places, pursued his practice with much success ; and that the death of the deceased was unexpected, and could not be imputed to him as a crime. But as the Court were satisfied that the evidence produced on the part of the commonwealth did not support the indictment, the prisoner was not put on his defence.

The chief justice charged the jury; and the substance of his direction, and of several observations, which fell from the Court during the trial, are, for greater convenience, here thrown together.

As the testimony of the witnesses was not contradicted, nor their credit impeached, that testimony might be considered as containing the necessary facts, on which the issue must be found.

That the deceased lost his life by the unskilful treatment of the prisoner, did not seem to admit of any reasonable doubt; but of this point the jury were to judge. Before the Monday evening preceding the death of Lovett, he had, by profuse sweats, and by often-repeated doses of the emetic powder, been reduced very low In this state, on that evening, other doses of this Indian tobacco were administered. When the second potion did not operate, * probably because the tone of his stomach was [ * 139 ] destroyed, the repetition of them, that they might operate as a cathartic, was followed by convulsion fits, loss of reason, and death.

But whether this treatment, by which the deceased lost his life, is, or is not, a felonious homicide, was the great question before the jury.

To constitute the crime of murder, with which the prisoner is charged, the killing must have been with malice, either express or implied. There was no evidence to induce a belief that the prisoner, by this treatment, intended to kill or to injure the deceased ; and the ground of express malice must fail. It has been said thal implied malice may be inferred from the rash and presumptuous conduct of the prisoner, in administering such violent medicines. Before implied malice can be inferred, the jury must be satisfied that the prisoner, by his treatment of his patient, was wilfully regardless of his social duty, being determined on mischief. But there is no part of the evidence which proves that the prisoner intended by his practice any harm to the deceased. On the contrary, it appears that his intention was to cure him. The jury would consider whether the charge of murder was, on these principles, satisfactorily supported.

But though innocent of the crime of murder, the prisoner may, on this indictment, be convicted of manslaughter, if the evidence be sufficient. And the solicitor-general strongly urged that the prisoner was guilty of manslaughter, because he rashly and presumptuously administered to the deceased a deleterious medicine, which, in his hands, by reason of his gross ignorance, became a deadly poison.

The prisoner’s ignorance is in this case very apparent. On any other ground consistent with his innocence, it is not easy to conceive that on the Monday evening before the death, when the second dose of his very powerful emetic had failed to operate, through the extreme weakness of the deceased, he could [ * 140 ] expect a repetition of these fatal * poisons would prove a. cathartic, and relieve the patient; or that he could mistake convulsion fits, symptomatic of approaching death, for a hypochondriac affection.

But on considering this point, the Court were all of opinion, notwithstanding this ignorance, that if the prisoner acted with an honest intention and expectation of curing the deceased by this treatment, although death, unexpected by him, was the consequence, he was not guilty of manslaughter.

To constitute manslaughter, the killing must have been a conse quence of some unlawful act. Now, there is no law which pro-hibits any man from prescribing for a sick person with his consent, if he honestly intends to cure him by his prescription. And it is not felony, if, through his ignorance of the quality of the medicine prescribed, or of the nature of the disease, or of both, the patient, contrary to his expectation, should die. The death of a man, killed * by voluntarily following a medical pre- [ * 141 ] scription, cannot be adjudged felony in the party prescribing, unless he, however ignorant of medical science in general, had so much knowledge, or probable information of the fatal tendency of the prescription, that it may be reasonably presumed by the jury to be the effect of obstinate, wilful rashness, at the least, and not of an honest intention and expectation to cure.

In the present case, there is no evidence that the prisoner, either from his own experience, or from the information of others, had any knowledge of the fatal effects of the Indian tobacco, when injudiciously administered ; but the only testimony produced to this point, proved that the patient found a cure from the medicine.

The law, thus stated, was conformable, not only to the general principles which governed in charges of felonious homicide, but also to the opinion of the learned and excellent Lord Chief Justice Hale. He expressly states that if a physician, whether licensed or not, gives a person a potion, without any intent of doing him any bodily hurt, but with intent to cure, or prevent a disease, and contrary to the expectation of the physician, it kills him, he is not guilty of murder or manslaughter.

If, in this case, it had appeared in evidence, as was stated by the solicitor-general, that the prisoner had previously, by administering this Indian tobacco, experienced its injurious effects in the death or bodily hurt of his patients, and that he afterwards administered it in the same form to the deceased, and he was killed by it, the Court would have left it to the serious consideration of the jury, whether they would presume that the prisoner administered it from an honest intention to cure, or from obstinate rashness and foolhardy presumption, although he might not have intended any bodily harm to his patient. If the jury should have been of this latter opinion, it would have been reasonable to convict the prisoner of manslaughter. at least. For it would not have been lawful for him again to administer a medicine of which he had such fatal experience. [ * 142 ] * It is to be exceedingly lamented, that people are so easily persuaded to put confidence in these itinerant quacks, and to trust their lives to strangers without knowledge or experience. If this astonishing infatuation should continue, and men are found to yield to the impudent pretensions of ignorant empiricism, there seems to be no adequate remedy by a crimina, prosecution, without the interference of the legislature, if the quack, however weak and presumptuous, should prescribe, with honest intentions and expectations of relieving his patients.

The prisoner was acquitted

Bartlet and Story for the prisoner. 
      
       Our ancestors, in the year 1649, when physicians were few, and quacks were numerous, endeavoring to guard against the folly and presumption of ignorant practitioners, passed the following ordinance : —
      “ Forasmuch as the law of God allows no man to impair the life or limbs-of any other, but in a judicial way, —
      “ It is therefore ordered, that no person or persons whatsoever, employed at any time about the bodies of men, women, and children, for the preservation oflife or health, as surgeons, midwives, physicians, or others, presume to exercise or put forth any act' contrary to the known, approved rules of the art in each mystery and occupation; nor exercise any force, violence, or cruelty upon or towards the body of any, whether young or old, (no, not in the most difficult and desperate cases,) without the advice and consent of such as are skilful in the same art, (if such may be had,) or at least ot some of the wisest and gravest there present, and consent of the patient or patients, if they be mentis compotes, much less contrary to such advice and consent; upon such severe punishment, as the nature of the fact may deserve. Which law, nevertheless, is not intended to discourage any from all lawful use of their skill, but rather to encourage and direct them in tlie right use thereof; and inhibit and restrain the presumptuous arrogancy of such as through perfidence of their own skill, or any other sinister respects, dare boldly to attempt to exercise any violence upon or towards the bodies of young or old, one or other, to the prejudice or hazard of the life or limb of man, woman, or child.”
      
        Old Colony Laws, p. 28.
     
      
       1 H. H. P. c. 429.
     
      
       [If death ensue from the gross ignorance, carelessness, negligence, or rashness of any one who undertakes to administer medicine, without any intent to do harm, the offence has often been held, by eminent judges, to amount to manslaughter.— Nancy Simpson's Case, Wilcock, 227. — 4 C. & P. 407. — Lewin's C. C. 172.— Rex vs. Spiller, 5 Car. P.335.— Fergusson's Case, Lewin, 181. — Senior's Case, 1 Mood, C. C. 346 — Rex vs. St. John Long, 4 C. & P. 435, 398.— Webb's Case, 1 M. & Rob 405. — Tessimond's Case, Lewin's C. C. 169. — Williamson's Case, 3 Car. P. 635. — Van Butchel's Case,- 3 Camp. 629. — And see Britton's Ch. 5. — Minor's Ch 4, §16. And Rae's Case, Allison's Cr. L. 4. — And this not only seems to oe sound, but wholesome doctrine. — Ed.]
     