
    [Crim. No. 603.
    In Bank.
    January 12, 1901.]
    THE PEOPLE, Respondent, v. SIMON ANDERSON, Appellant.
    Criminal Law—Conviction of Manslaughter—Insufficiency of Evidence—Whisky Given Under Physician’s Instruction.—A conviction for manslaughter grounded on the criminal purpose or criminal negligence of the defendant in giving whisky to the deceased, which caused his death, cannot be supported where there is no evidence that defendant ever gave any whisky to the deceased except as a nurse in pursuance of the instruction of the attending physician, or that the deceased came to his death by reason of any act of the defendant.
    Id.—Last Illness of Deceased—Keeping Liquor for Medicinal Use.— Where it appears that the deceased lay confined to his bed in a very weak condition in the last stages of Bright’s disease, the jury were not authorized to hold that it was criminal negligence for the defendant, as a nurse, to keep whisky in the room for medicinal use, or to keep a. flask thereof beneath the mattress for such use, where there is no evidence that the deceased drank any of it other than as prescribed by his physician, and the testimony of the physician renders it improbable that he did so.
    Id.—Procuring of Check from Deceased—Taking Advantage of Weakness.—The procuring of a check from the deceased by the defendant by taldng advantage of the weakness and the impaired condition of the mind of the deceased, for mere purposes of greed, and the unsuccessful endeavor to cash the same, does not tend to show that whisky was given to him for that purpose, or that any act of the defendant caused his dearth.
    APPEAL from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. G-. W. Hunter, Judge.
    The facts are stated in the opinion of the court.
    S. M. Buck, and J. F. Coonan, for Appellant.
    Tirey L. Ford, Attorney General, and Charles P. Gale, for Respondent.
   HARRISON, J.

The appellant was charged with the crime of murder in the killing of Thomas Kehoe, and upon his trial therefor was convicted of manslaughter. He has appealed from the judgment entered thereon, upon the ground that the verdict is not sustained by the evidence. The evidence established that Kehoe died from Bright’s disease of the kidneys, superinduced by an excessive use of alcoholic drinks. It is claimed by the prosecution in support of the verdict that with the knowledge that Kehoe had such a passion for whisky that his death would result from an unrestrained use of it, the defendant gave it to him to drink, or placed it within his reach, either for the express purpose of producing his death, or with such carelessness as to constitute a criminal negligence which would make him responsible for his death. There was no direct testimony that the defendant ever gave any whisky to the deceased,' except in accordance with the directions of the attending physician, or was in any way instrumental in allowing him to obtain any whisky, but it is claimed that the circumstances connected with his death and the relations shown to have existed between him and the defendant are sufficient to justify the verdict.

The deceased had for a long time been addicted to excessive drinking, and for some time prior to his death was an inmate of the hotel kept by the defendant. In the early part of April, 1899, -while at the defendant’s hotel, he had an attack of delirium tremens, and was under medical treatment therefor for about a week. After his recovery from this he remained under medical treatment for other troubles' for another week, during a portion of which time the defendant was his nurse, and after his recovery from this he went about the streets as usual. The record does not give any account of his condition or doings from this time until after the 15th of May, except that he continued to room at the hotel of the defendant, and was occasionally seen upon the streets. At some time between the 15th and 20th of May he had evidently yielded to his passion for drink, and as a result thereof was taken with some kind of sickness which confined him to his bed and required the attendance of a nurse. In the early part of this sickness the defendant alone took care of him, but after the 20th of May an employee, one Misen, who came into his service on that day, assisted him, and thereafter, while the deceased remained at ■ the hotel, the defendant cared for him during the day and un(til midnight, and during the remainder of the night Nilsen, who seems to have been a nightwatehman, relieved him by himself, looking into the room of the deceased at frequent intervals and ministering to his wants. Kehoe remained in the hotel until May 25th, when he was removed to a hospital, where he died on May 28th.

Dr. Ottmer, who had been the medical attendant of Kehoe during his sickness in April, was sent for by the defendant Monday afternoon, May 22d, and attended upon the deceased from that time until his death. He testified that he found Kehoe' in b'ed, in a very weakened condition, and in an advanced stage of Bright’s disease of the kidneys, from which he had been suffering prior to his first attendance upon him, and he gave instructions to the defendant to give him a tabl'espoonful of whisky every three hours. There is no evidence that from this time Kehoe was given or had any whisky except in accordance with this instruction. Neither is there any evidence that the defendant was present at any time when Kehoe drank any whisky, or in any way contributed to his drinking before he was taken down with his last illness, and although Dr. Ottmer says that Kehoe, when he saw him that evening, was as drunk as he could be, and must have drunk a great deal to have got into the condition he was in, it was not shown that the defendant was in any way connected therewith, or ever knew that he had been drinking until he took to his bed as the result thereof. Dr. Ottmer says that after his first visit Kehoe was sober whenever he called, and that at the first visit he did not want any whisky, since he had had all that he wanted; that he was sober after that evening because he could not keep any liquor on his stomach; that in his weak condition a very little would make him appear to be quite intoxicated.

It was shown by the prosecution that while Dr. Ottmer was attending Kehoe in April he advised him that if he continued to drink as he had been drinldng it would kill him, and that the defendant was present when this advice was given; that during his sickness in May whisky was permitted to be in his room, and an opportunity afforded to Kehoe to get the same in the absence of his attendants; and it is urged that when the defendant assumed to nurse and care for him during his last attack, it was an act of criminal negligence to permit any whisky to he placed within the reach of Kehoe, or so that he would have an opportunity to satisfy his craving for it. As a part of the evidence in support of this claim, it appears that when Kilsen first b'egan to assist the defendant there was a pint flask of whisky in a drawer in Kehoe’s room, hut Misen states that it was where Kehoe could not get at it. It was also shown that a flask of whisky was at one time upon a stand, and that there was at another time a flask upon the bureau; but as the defendant had been instructed to give Kehoe a tablespoonful of whisky every three hours, and as it appeared that Kehoe was too weak to get out of bed, the jury were not authorized to hold that it was criminal negligence to allow the flask to b'e in the room.

On Monday evening, May 34th, an attorney went to Kehoe’s room, together with Dr. Ottmer and a friend of Kehoe’s, for the purpose of having him execute his will, and they were afterward joined in the room by the defendant. Kehoe’s weakness was so great that he could scarcely talk, and when the doctor asked for whisky that he might give him a hypodermic injection of strychnine and whisky for the purpose of enabling him to answer the questions put to him, the defendant reached across the bed and took a small flash of whisky, partly filled, from under the mattress at the side of the bed. It ia urged from this fact that the jury were authorized to find that the whisky was placed there by defendant to enable Kehoe to get at it and drink it. Aside from what has before been said that there is no evidence that Kehoe did drink any of it, Dr. Ottmer also testified that although it was within Kehoe’s reach, if he had drunk it, he could not keep it down, as he would vomit even water. It must also be borne in mind that the defendant took the flask from the bed openly, in the presence ■of several persons, and it is hardly to be supposed that, if he had placed it there with any sinister motive, he would thus publicly have betrayed himself. Moreover, it is only a conjecture that the flask was placed there by the defendant.

Testimony was offered on the part of the prosecution that on Monday afternoon, before the defendant sent for Dr. Ottmer, Kehoe made a check in favor of the defendant for two thousand dollars, as a gift to him, and that the defendant had two persons affix their names as witnesses thereto; that immediately upon its receipt the defendant sought to have it cashed by the hank where he had been informed that Kehoe had money on deposit, hut the hank, being suspicions, declined to pay it; that on Wednesday evening Kehoe, while his will was being prepared, disclaimed all knowledge of making the check, and although urged by the defendant to make some provision for him in his will, refused to do so. These facts axe urged as showing motive on the part of the defendant that he desired the death of Kehoe in order that he might obtain his money.

If it he assumed that Kehote made the check at the suggestion or request of the defendant, that fact has no tendency to show that the defendant gave him any whisky. A .sufficient motive for obtaining the check would he found in a purpose to take a wicked advantage of the impaired condition of Kehoes mind for mere purposes of greed, in the belief that his physical condition was such that he would never recover or know of having made the check. We are clearly of the opinion that there was no evidence before the jury from which they were authorized to find that Kehoe came to his death by reason of any act of the defendant.

The judgment is reversed and a new trial ordered.

McFarland, J., Temple, J., and Van Dyke, J., concurred.  