Appellees were indicted in the Circuit Court of Sharp county, for manslaughter; a demurrer was sustained to the indictment; they were again indicted for the same offense : a demurrer was sustained to the second indictment, and the State appealed.
It may be seen from the reporter’s copy of the indictment, that appellees were accused of causing the death of a woman, by mal-practice as physicians.
The demurrer to the indictment was general, the only cause assigned being that it did not state facts sufficient to constitute a public offense.
It is manifest, from words used in the indictment, that it was drafted under the second clause of section 1266, Gantt’s Dig., the whole section being; “If the killing be done in the commission of an unlawful act, without malice, and the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.” The preceding section defines voluntary manslaughter, and the section copied is, in *610substance, the common law definition of involuntary manslaughter, which, by our law, is a felony, and punishable by imprisonment in the penitentiary for a period not exceeding twelve months. Ib., sec. 1278.
The indictment charges, in substance, that appellees, holding themselves out as physicians, etc.,, were called to attend Mrs. Saunders, and that they feloniously, and without due caution and circumspection, and by mal-practice, in the use of the remedies and appliances described, and, finally, by abandonment, caused her death.
Sir Matthew Hale said: “If a physician gives a person a potion, without any intent of doing him any -bodily hurt, but with an intent to cure or prevent a disease, and contrary to the expectation of the physician, it kills him, this is no homicide; and the like of a chirurgeon. And I hold their opinion to be erroneous, that think, if he be no licensed chirurgeon or physician, that occasioneth this mischance, that then it is felony; for physic and salves were before licensed physicians and chirurgeons ; and therefore, if they be not licensed according to the Statute. (3 H. 8. Cap. 11 or 14 H. 8. Cap. 5), they are subject to the penalties in the Statutes ; 'but God forbid that any mischief of this kind should make any person, not licensed, guilty of murder or manslaughter. These opinions, therefore, may serve to caution ignorant people not to be too busy in this kind with tampering with physic, but, are no safe rule for a judge or jury to go by,” etc. 1 Hales’ Pleas of the Crown, 429.
In note 6, first American Edition of Hale, by Stokes & Ingersoll, the annotators say: ‘ ‘Later authorities agree with Hale in these points. If a person, whether he be a regular practitioner or not, honestly and bona fide, perform an operation which causes the patient’s death, he is not *611guilty of manslaughter. But if he be guilty of criminal misconduct, arising from gross ignorance or criminal inattention, then he will be guilty of manslaughter,” citing •cases.
Sir William Blackstone said: “If a physician or surgeon gives his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure, and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance. But it hath been holden that if he be not a regular physician or surgeon, who administers the medicine, or performs the operation, it is manslaughter at least. Yet Sir Matthew Hale very justly questions the law of this determination.” 2 Black Com. Book 4, p. 197.
In 1809, Samuel Thompson, the father of the botanical, •or steam system of medicine, was indicted in the Supreme Court of Massachusetts for murder, and the court charged the jury thaj;, “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 a -felonious homicide.” Commonwealth v. Thompson, 6 Mass. R., 134.
This case was followed in 1844, in Rice v. State, 8 Missouri, 561.
But in an edition of the Massachusetts Reports in 1850, in a note to Commonwealth v. Thompson, the editor says : “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 offense has often been held by eminent judges, to amount to manslaughter,” and after citing the later English decisions *612to sustain this proposition, the editor adds : “And this not only seems to be sound, but wholesome doctrine.”
In March v. Davison, 9 Paige, 587, Chancellor Walworth, commenting on Commonwealth v. Thompson, said : “Our Statute does indeed, prohibit persons, not authorized by law, from practicing physic or surgery in this State (New York). And as the pei’son who should attempt to practice contrary to the Statute, would be engaged in an unlawful act, he could not probably escape a conviction of manslaughter if he should kill a patient, even where he supposed the remedy administered was not dangerous to health or life,” etc.
In Rex v. Williamson, 3 Carrington & Payne, 635, the prisoner, a man-midwife, tore away a part of the prolapsed uterus of a woman whom he had delivered of a child, supposing it to be a part of the placenta; the woman died, and he was indicted for murder. Lord Ellenborough, C. J., in summing up, said to the jury: “There has not been a particle of evidence adduced which goes to convict the prisoner of the crime of murder ; but still it is for you to consider whether the evidence goes so far as to make out a case of manslaughter. To substantiate that charge, the prisoner must haye been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct, which is essential to make out a case of manslaughter,” etc., etc.
In Rex v. Long, 4 Carrington & Payne, 398, it was held that a person acting as a medical man, whether licensed or unlicensed, is not criminally responsible for the death of a patient, occasioned by his treatment, unless his conduct is characterized either by gross ignorance of his art, or gross.' inattention to his patient’s safety.
*613In another indictment against Long, Ib., 423, it was held, that when a person undertakes the cure of a disease (whether he has received a medical education or not), and is guilty of gross negligence in attending his patient, after he has applied a remedy, or of gross' rashness in the application of it, and death ensues in consequence of either, he is liable to be convicted of manslaughter.
In Rex v. Speller, 5 Carrington & Payne, 332, held that any person, whether a licensed medical practitioner or not, who deals with the life or health of any of his Majesty’s subjects, is bound to have competent skill, and is bound to treat his or her patients with care, attention and assiduity, and if a patient dies for want of either, the person is guilty of manslaughter.
The English cases, those cited above and others, are reviewed in Roscoe’s Criminal Evidence, 717-20.
Mr. Greenleaf, in treating of involuntary manslaughter, says: “If the act be in itself lawful, but done in an improper manner, whether it be by excess, or by culpable ignorance, or by want of due caution, and death ensues, it will be manslaughter. Such is the case where death is occasioned by excessive correction given a child by the parent or master, or by ignorance, gross negligence, or culpable inattention or maltreatment of a patient on the part of one assuming to be his physician,” etc. 3 Greenleaf’s Evidence, secs. 128-9.
See also Wharton’s Law of Homicide, 131-144; 2 Bishop’s Cr. L., 6th Ed. secs. 664-686.
The court is of the opinion that the indictment in this case is sufficient. Whether appellees are criminally responsible for the death of Mrs. Saunders, must depend upon the evidence. A felonious want of “due care and circumspection” in her treatment, must be proved as alleged. For a mere mistake of judgment in the selection and application’ *614of the remedies and appliances, named in the indictment,, they would not be criminally liable. Were they grossly ignorant of the art which they assumed to practice? Did they manifest gross ignorance in the selection or application of the remedies? Were the remedies unusual, inapplicable, or rashly applied? Were appellees grossly negligent or inattentive? These are all questions of evidence.
The judgment must be reversed, and the cause remanded for further proceedings.
Note. — The judgment of the court was made up in this case and the opinion prepared, and concurred in by Hon W. M. Harrison, before he left the bench.