Hale, C.J.
The defendants (Carol and Norman) were convicted by a jury in the Superior Court of involuntary manslaughter on amended indictments which charged, fol[472] lowing a form in G. L. c. 277, § 79, that the defendants, “being under the legal duty and being of sufficient ability to provide Rita Michaud who was [their] daughter with sufficient food and drink for her sustenance and maintenance did neglect and refuse so to do; by reason whereof said Rita Michaud, being unable to provide sufficient food and drink for herself, became and was mortally sick and died.” They were both sentenced to three years’ probation.
The defendants assign as error (1) the denial of their respective motions to dismiss the indictments, as they did not “allege elements necessary to a charge of the crime of manslaughter”; (2) the allowance of the Commonwealth’s motions to amend the indictments so that the words “neglect or refuse” as appearing therein would read “neglect and refuse”; and (3) the denial of their respective motions for required findings of not guilty.
1. The wording of the indictments in this case, as stated above, faithfully followed the form provided by G. L. c. 277, § 79, and, because the terms of that statute are sufficient to allege a criminal offense, an indictment following that form is not open to dismissal. Compare Commonwealth v. Benjamin, 358 Mass. 672, 675-676 (1971); Commonwealth v. McClaine, 367 Mass. 559, 560 (1975). The language in the forms set out in § 79, and in particular the form followed in this case, does not create or define a new or different crime of manslaughter. That language is merely a form by which the common law crime of manslaughter may properly be charged. See Commonwealth v. Hall, 322 Mass. 523, 529-530 (1948).
2. The indictments, as returned by the grand jury, charged, as noted above, that the defendants, having the duty to provide the deceased child “with sufficient food and drink . . . did neglect or refuse so to do” (emphasis supplied). Upon the Commonwealth’s motion, the judge allowed the amendment of the disjunctive “or” to the conjunctive “and” so that the indictments would conform to the wording of the form set out in G. L. c. 277, § 79, which they otherwise closely tracked. Rule 4(d) of the Massachusetts Rules of Criminal [473] Procedure, 378 Mass. 849-850 (1979), provides that “a judge may allow amendment of the form of a complaint or indictment if such amendment would not prejudice the defendant . . . .” That rule replaced G. L. c. 277, § 35A, which was repealed by St. 1979, c. 344, § 35, and which contained language to the same effect as the part of rule 4(d) quoted above. The defendants conceded before the trial judge that the Commonwealth’s burden was increased by this change and that it did not harm them. Likewise, they have not claimed on appeal that they were prejudiced in any way by the change, but they do contend that the change was one of substance and thus that they are not required to show prejudice. Commonwealth v. Snow, 269 Mass. 598, 603, 606, 609-610 (1930).
The test to determine whether an amendment is one of form rather than substance is “whether judgment of conviction or acquittal on the indictment as drawn would be a bar to a new indictment in the form in which it stood after the amendment.” Snow, supra at 609. Commonwealth v. Binkiewicz, 342 Mass. 740, 748 (1961). Commonwealth v. Baker, 10 Mass. App. Ct. 852, 852-853 (1980). In this case, if one of the defendants had been acquitted of “neglecting or refusing” to provide nourishment for the child, that defendant could not be successfully prosecuted later for “neglecting and refusing” to provide such nourishment, as the prior acquittal would necessarily imply that the defendant had been put in jeopardy on both elements but found guilty of neither.
Furthermore, the defendants’ argument that the amendment materially altered the function of the grand jury (see Snow, supra at 606; Commonwealth v. Gallo, 2 Mass. App. Ct. 636, 639 [1974]) is without merit. The crime charged in the present indictments was manslaughter. The words “neglect” and “refuse,” whether employed disjunctively or conjunctively, are nothing more than specifications of the manner by which the crime was alleged to have been committed. In the words of Commonwealth v. DiStasio, 294 Mass. 273, 278 (1936), “The amendment did not change [474] the substance of the crime charged, but restricted the Commonwealth in its proof, to the advantage of the defendant^], in much the same way as might have been done by specifications.” There was no error in the allowance of the amendment.
3. The defendants both argue that the evidence was insufficient to warrant a finding of guilty of involuntary manslaughter and that it was error to deny their motions for required findings of not guilty when filed at the conclusion of the Commonwealth’s case and when renewed at the close of all the evidence. Mass.R.Crim.P. 25, 378 Mass. 896 (1979).
The evidence at the close of the Commonwealth’s case, taken in the light most favorable to the Commonwealth, can be briefly summarized as follows: Carol Michaud gave birth to Rita on June 29, 1980. Carol’s pregnancy was without complications, and at birth the baby was healthy and weighed seven pounds, six ounces (3,350 grams). Carol breast fed the baby in the hospital. The nurses’ notes in the hospital record show that shortly after birth the infant was feeding but was sleepy, and that the next morning the baby nursed very well, but that that afternoon she was sleepy and “so didn’t nurse as well.” There were no other notes as to feeding. The mother and baby were discharged from the hospital on July 1, 1980, the baby then weighing six pounds, thirteen ounces (3,100 grams). As testified to by Carol’s obstetrician, this loss of weight was commensurate with the ten percent weight loss that most babies experience in the first few days of life. The baby was not seen alive by a physician after it left the hospital.
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Hale, C.J.
The defendants (Carol and Norman) were convicted by a jury in the Superior Court of involuntary manslaughter on amended indictments which charged, fol[472] lowing a form in G. L. c. 277, § 79, that the defendants, “being under the legal duty and being of sufficient ability to provide Rita Michaud who was [their] daughter with sufficient food and drink for her sustenance and maintenance did neglect and refuse so to do; by reason whereof said Rita Michaud, being unable to provide sufficient food and drink for herself, became and was mortally sick and died.” They were both sentenced to three years’ probation.
The defendants assign as error (1) the denial of their respective motions to dismiss the indictments, as they did not “allege elements necessary to a charge of the crime of manslaughter”; (2) the allowance of the Commonwealth’s motions to amend the indictments so that the words “neglect or refuse” as appearing therein would read “neglect and refuse”; and (3) the denial of their respective motions for required findings of not guilty.
1. The wording of the indictments in this case, as stated above, faithfully followed the form provided by G. L. c. 277, § 79, and, because the terms of that statute are sufficient to allege a criminal offense, an indictment following that form is not open to dismissal. Compare Commonwealth v. Benjamin, 358 Mass. 672, 675-676 (1971); Commonwealth v. McClaine, 367 Mass. 559, 560 (1975). The language in the forms set out in § 79, and in particular the form followed in this case, does not create or define a new or different crime of manslaughter. That language is merely a form by which the common law crime of manslaughter may properly be charged. See Commonwealth v. Hall, 322 Mass. 523, 529-530 (1948).
2. The indictments, as returned by the grand jury, charged, as noted above, that the defendants, having the duty to provide the deceased child “with sufficient food and drink . . . did neglect or refuse so to do” (emphasis supplied). Upon the Commonwealth’s motion, the judge allowed the amendment of the disjunctive “or” to the conjunctive “and” so that the indictments would conform to the wording of the form set out in G. L. c. 277, § 79, which they otherwise closely tracked. Rule 4(d) of the Massachusetts Rules of Criminal [473] Procedure, 378 Mass. 849-850 (1979), provides that “a judge may allow amendment of the form of a complaint or indictment if such amendment would not prejudice the defendant . . . .” That rule replaced G. L. c. 277, § 35A, which was repealed by St. 1979, c. 344, § 35, and which contained language to the same effect as the part of rule 4(d) quoted above. The defendants conceded before the trial judge that the Commonwealth’s burden was increased by this change and that it did not harm them. Likewise, they have not claimed on appeal that they were prejudiced in any way by the change, but they do contend that the change was one of substance and thus that they are not required to show prejudice. Commonwealth v. Snow, 269 Mass. 598, 603, 606, 609-610 (1930).
The test to determine whether an amendment is one of form rather than substance is “whether judgment of conviction or acquittal on the indictment as drawn would be a bar to a new indictment in the form in which it stood after the amendment.” Snow, supra at 609. Commonwealth v. Binkiewicz, 342 Mass. 740, 748 (1961). Commonwealth v. Baker, 10 Mass. App. Ct. 852, 852-853 (1980). In this case, if one of the defendants had been acquitted of “neglecting or refusing” to provide nourishment for the child, that defendant could not be successfully prosecuted later for “neglecting and refusing” to provide such nourishment, as the prior acquittal would necessarily imply that the defendant had been put in jeopardy on both elements but found guilty of neither.
Furthermore, the defendants’ argument that the amendment materially altered the function of the grand jury (see Snow, supra at 606; Commonwealth v. Gallo, 2 Mass. App. Ct. 636, 639 [1974]) is without merit. The crime charged in the present indictments was manslaughter. The words “neglect” and “refuse,” whether employed disjunctively or conjunctively, are nothing more than specifications of the manner by which the crime was alleged to have been committed. In the words of Commonwealth v. DiStasio, 294 Mass. 273, 278 (1936), “The amendment did not change [474] the substance of the crime charged, but restricted the Commonwealth in its proof, to the advantage of the defendant^], in much the same way as might have been done by specifications.” There was no error in the allowance of the amendment.
3. The defendants both argue that the evidence was insufficient to warrant a finding of guilty of involuntary manslaughter and that it was error to deny their motions for required findings of not guilty when filed at the conclusion of the Commonwealth’s case and when renewed at the close of all the evidence. Mass.R.Crim.P. 25, 378 Mass. 896 (1979).
The evidence at the close of the Commonwealth’s case, taken in the light most favorable to the Commonwealth, can be briefly summarized as follows: Carol Michaud gave birth to Rita on June 29, 1980. Carol’s pregnancy was without complications, and at birth the baby was healthy and weighed seven pounds, six ounces (3,350 grams). Carol breast fed the baby in the hospital. The nurses’ notes in the hospital record show that shortly after birth the infant was feeding but was sleepy, and that the next morning the baby nursed very well, but that that afternoon she was sleepy and “so didn’t nurse as well.” There were no other notes as to feeding. The mother and baby were discharged from the hospital on July 1, 1980, the baby then weighing six pounds, thirteen ounces (3,100 grams). As testified to by Carol’s obstetrician, this loss of weight was commensurate with the ten percent weight loss that most babies experience in the first few days of life. The baby was not seen alive by a physician after it left the hospital.
On July 24, 1980, at 9:43 a.m. the Rlackstone police department got a call from Carol, who asked for help as her baby had stopped breathing. A police officer and rescue squad were dispatched, and the officer was the first to arrive. He was met by Carol, who directed him to the master bedroom. As he entered the bedroom he saw Norman giving artificial respiration to the baby. The officer noticed a small exchange of air in the baby, but, as she then stopped [475] breathing, he employed mouth to mouth resuscitation procedures. A few minutes later an emergency medical technician arrived, who continued the resuscitative efforts, and shortly after that the rescue squad arrived and transferred the baby to the Fogarty Memorial Hospital in North Smith-field, Rhode Island. Although cardiopulmonary resuscitation was given to the baby during the entire short ride to the hospital, the initial assessment by Dr. Mead, the emergency room physician, was that there was nothing that could be done medically to save the baby. The baby arrived in the emergency room with no pulse or respiratory functions, cold and stiff with rigor mortis. Nevertheless, life saving emergency techniques were employed by the hospital staff. Those efforts were without result, and the baby was pronounced dead at 10:12 a.m. The emergency room physician testified that the baby appeared to be undernourished. All of the nurses commented that “this child certainly looks very thin.”
An autopsy was performed by the chief medical examiner of the State of Rhode Island, Dr. William Q. Sturner. Photographs of the body were taken before the autopsy was performed, and five of them were introduced in evidence. The pictures show a baby whose ribs and backbone were clearly visible and protruding and whose eyes had sunken in their sockets. Dr. Sturner’s initial visual observations were that the baby was thin and malnourished. There were no physical abnormalities, nor were there any injuries or bruises. The child’s diaper was soiled with feces and a moisture consistent with urine. The autopsy revealed no abnormalities of internal organs or of the gastrointestinal tract which could provide an organic or physiological basis for the malnourishment of the child (i.e., there was no inability on the part of the child to absorb food). The baby’s stomach was empty, but a yellow mucous and soft fecal material were found in the baby’s intestinal tract and distal colon. Dr. Sturner stated that the baby’s condition was the result of malnourishment, which he defined as the lack of adequate or appropriate or sufficient amounts of material to sustain [476] normal growth and development. On the basis of his autopsy, which included tests for toxic and infectious agents in the baby’s body and complete microscopic studies of the internal organs of the infant, the physical characteristics which were mentioned above, and the fact that the baby weighed, at death, approximately six pounds (2,738.8 grams), or one pound, six ounces less than she weighed at birth, Dr. Sturner opined the cause of death to be electrolyte imbalance due to malnutrition and dehydration as a result of starvation. He ruled out as a cause of death the “sudden infant death syndrome,” or so called “crib death.”
Carol and Norman had four other children living with them at the time of the incident. There was a twelve year old daughter from a previous marriage of Carol’s and three younger sons from this marriage. Norman was a disabled veteran who spent his days at home caring for the children. His statements to the police were that he cared for the four older children while Carol cared for the baby and that he never saw anything wrong with the baby. He further stated to the police that Carol was breast feeding the baby without any other nourishment and that he had told Carol to take the baby to the pediatrician when she told him that the baby was not eating properly.
Carol stated to the police that she breast fed the baby and that she had breast fed her last three children. She would feed the baby six or seven times a day for one-half hour at each feeding. One of her breasts became sore, and, after consulting a doctor she purchased a breast pump. She stated that the baby cut down feeding the last week, so she would pump her breasts and feed the baby the remaining milk later. This would be between three and one-half and eight ounces per feeding. Carol told a police officer that she thought the baby had been getting heavier.
The day before the baby died, Carol drove Norman to a Veterans’ Administration hospital for treatment, and they took the baby with them. They did not seek an examination or treatment for the baby at this time. Other than Carol, Norman and the children, the only person who appears to [477] have seen the baby after she left the hospital was a babysitter. She saw the baby the day she came home, and the baby looked healthy to her then. She saw the baby again for a few minutes on the Sunday before she died and also on July 23, 1980. At both those times the baby looked paler than when she had come home from the hospital. These observations were very brief, and she never saw the baby undressed.
At the preliminary hearings on motions, held immediately before the trial commenced, the district attorney indicated that in proving the charge of involuntary manslaughter the Commonwealth must establish that the conduct of the defendants was wanton and reckless, as stated in Commonwealth v. Welansky, 316 Mass. 383 (1944). The validity of that position was not questioned by defense counsel, and the judge gave his final instructions to the jury along those lines without objection by the defendants.
The law in this area is well settled. As stated in Commonwealth v. Gallison, 383 Mass. 659, 665 (1981), quoting Welansky, supra at 399, “The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.” And Welansky recognized that “[t]he standard of wanton or reckless conduct is at once subjective and objective .... To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or [478] omission, if an ordinary normal man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful.” Welansky, supra, at 398-399.
As far as the evidence before the jury is concerned, there was no direct evidence that the defendants starved the baby. But given that the cause of death could have been found to be starvation and dehydration, it was open to the jury to find that the defendants, the baby’s parents, who by their own admissions were the constant caretakers of the child, neglected and refused to provide adequate food and liquid for the infant when it should have been obvious to them that the child was starving. The fact that there were no eyewitnesses to the parents’ neglect to provide nourishment for their child does not preclude the jury from finding the parents criminally liable. Compare Gallison, supra at 667-668. Also, the concession by the Commonwealth’s expert, Dr. Sturner, that the quality of a mother’s milk would affect a baby’s intake of nourishment would be a matter for the jury’s consideration in determining the strength of the doctor’s testimony, but it would not preclude a guilty verdict. We note that although the quality of the mother’s milk could have had an effect on the nutritional needs of the child, the jury could well have been satisfied that had the child received regular feedings of mother’s milk, she would not have been in the dehydrated condition which, as Dr. Sturner testified, resulted in an electrolyte imbalance which caused the death. Death by dehydration, the jury could have found, would not have occurred even if the mother’s milk had no nutrients whatsoever, so long as she was feeding the child regularly. As to the quantity received by the child, we have here a mother who had nursed three other children and was thus experienced in the process and who stated that she had nursed this baby six or seven times a day. One might posit that the baby was sucking but receiving no milk at these feedings, but Carol’s statement to the police was that only in the last week, when the weather was hot
[479] and the baby began to cut down her feedings, would her breasts “fill up”, which would require her to pump them. It was thus inferable that when she put the baby to her breast she knew whether or not the baby was taking milk. Furthermore, Carol stated that when her breasts would swell and she would pump them that she would get three and one-half to eight ounces of milk from them, and then feed the baby later with this milk. This testimony of feedings of from three and one half to eight .ounces of milk six or seven times a day, was totally inconsistent with the child’s condition as described by Drs. Mead and Sturner.2 Dr. Mead stated that the child had no subcutaneous tissue which indicated to him that the child was undernourished. Dr. Sturner described the appearance of the child’s body as thin and malnourished, “the rib markings were very prominent. In other words, one could see the outline of the ribs because of the lack of subcutaneous tissue present in the chest area . . . [in the normal infant] they cannot be seen at all ... . The area of the cheeks showed no puffiness or subcutaneous fat to be present there. They are sunken, as were the eye sockets . . . .” The doctors’ observations were corroborated by post-mortem photographs of the child’s body which were received in evidence and shown to the jury immediately before Dr. Sturner testified as to his observations. Dr. Sturner further testified that the baby could not have died of starvation, malnutrition, and dehydration had she ingested the nourishment Carol said she did. Thus, the jury could have regarded as incredible the defendants’ statements to the police giving their version of the events (compare Commonwealth v. Torrealba, 316 Mass. 24, 30 [1944]; Commonwealth v. Eppich, 342 Mass. 487, 491-492 [1961]; Commonwealth v. Swartz, 343 Mass. 709, 711-713 [1962]; Commonwealth v. Smith, 368 Mass. 126, 128-129 [1975]), and it was open to the jury, on the evidence, to conclude beyond a reasonable [480] doubt (Commonwealth v. Latimore, 378 Mass. 671, 676-678 [1979]) that these parents, having the duty to care for their baby, in callous disregard of the obvious emaciated condition of the baby, neglected and refused properly to feed and care for her, that their omissions were wanton and reckless, and by reason of those omissions the child died.
The judge did not err when he denied the defendants’ motions for required findings of not guilty.
Judgments affirmed.