Barrows, J.
Having been found guilty upon the first and third counts of an indictment in which he is charged with manslaughter the defendant moves in arrest of judgment, and excepts to the overruling of his motion, as well as to certain instructions given to the jury and certain refusals to instruct in conformity with his requests.
The crime was alleged to have been committed against the person of his wife, and the evidence for the state tended to show that his wife was insane and had been for some years, at times, so as [265]*265to tear all the clothing from her person, that she became a cripple, able to move herself by her hands only; that in this condition she was confined in a very cold open room in the'ell part of the prisoner’s house day and night without fire, with no garment on her, nothing to sleep on but husks and rags in a filthy condition, and no covering but a piece of canvas from the 18th of January to the 9th of February, 1875; that there was a broken pane of glass in one of the windows, permitted to remain open; that when found by the neighbors her feet and hips were badly frozen, swollen and discolored; that gangrene had already commenced, followed by mortification and death caused by freezing; that the prisoner had full knowledge of her condition and of the condition of the room and was able to support her in a proper manner. The medical men who examined her on the 10th and 11th of February, testified that in their opinion the freezing must have occurred three or four weeks previous.
Now, while the defendant contended that if his wife suffered from the causes alleged, it was without his knowledge and contrary to his intention and gave evidence which he claimed supported this position, he admitted upon the stand that he knew the condition of the room ; that ho passed through it every night but one, from January 19th to February 9th to fasten the doors; that every winter before, when she had been kept there, he had warmed the room by a stove and intended to do so last winter, but not having the money on hand, put it off, and the only examination which he made of the condition of his wife, when in the room, was to look and see if the canvas was over her.
We will consider first the questions raised as to the sufficiency of the indictment.
The defendant objects to the first count, because he says it contains no allegation that the condition of his wife, her necessities, and the facts alleged in that count as constituting the crime of manslaughter were known to him.
The count alleges the relation which he sustained to the deceased, his duty to provide for her necessities, her own incapacity and his ability to do it, and that he did “feloniously and willfully [266]*266neglect and refuse to provide necessary clothing, shelter and protection from the cold and inclemency of the weather” for her from the 19th day of January to the 9th day of February, the consequent sickness and death of the wife, and manslaughter by the defendant “in the manner and by the means aforesaid.”
The objection is not sustained. The allegation of a willful and felonious neglect and refusal to perform the duties devolved upon him by law in the premises of itself imports an allegation that he knew the necessities of his wife and the essential facts alleged in the count.
A man cannot be said in any manner to neglect or refuse to perform a duty unless he has knowledge of the condition of things which requires performance at his hands.
The charge of neglect and refusal to furnish the necessary protection against the cold is tantamount to an averment that the defendant had all the knowledge of the facts which it was necessary that he should have, in order to inculpate him. It was not necessary to allege nor to prove that the defendant knew from day to day the effect which his brutal neglect was producing. If such knowledge could have been brought home to him he should have been charged not with manslaughter, but with murder; and it is not easy to see how he could have avoided the inference of malicious intent.
¥e hold the first count to be sufficient, even under the former practice requiring that the manner and means by which the crime was accomplished should be set forth in detail.
But such allegations are now unnecessary under the provisions ofE. S., c. 134, § 7.
The defendant’s objections to the third count are futile. Similar objections were made and overruled in State v. Verrill, 54 Maine, 408.
Nor do we see that the defendant has any good cause of complaint when we examine the instructions and the refusals to instruct as requested. One extended series of requests called for instructions upon the question of the prisoner’s intent, maintaining that, “if the evidence can be reconciled with an innocent intent on the part of the prisoner he must be acquitted;” that a wrongful [267]*267intent was of the essence of the offense without which it could not exist; that, whatever the result of an action or omission, a man can be held guilty only upon the ground of evil intentions; that there must bo proof to the satisfaction of the jury of a wrong intent, of a willful wrong done.
The presiding judge refused these requests and instructed the jury that it was not essential to prove criminal intent in order to constitute the crime charged in this case. This was clearly right.
A criminal intent on the part of a party who has carelessly caused the death of a human being need not be alleged nor proved in order to constitute manslaughter when such death was the result of the neglect of a known duty to the deceased.
Add to the matters charged in this indictment the element of an evil and wicked intent and you have the malice, express or implied, which would make the crime murder, either of the first or second degree according to the character of the intent.
It is settled beyond a question that the naked negligent omission of a known duty, when it causes or hastens the death of a human being, constitutes manslaughter. Hence, Maule, J., in Regina v. Haines, 2 C. & K., 368, charged the jury in these words : “If you are satisfied that it was the ordinary and plain duty of the prisoner to have caused an air-heading to be made in this mine, and that a man using reasonable diligence would have had it done, and that, by the omission, the death of the deceased occurred, you ought to find the prisoner guilty of manslaughter.”
.For further illustration of the doctrine that manslaughter may be committed by a negligent omission of duty see Reg. v. Marriott, 8 Car. & P., 425. Reg. v. Edwards, id., 611. Reg. v. Lowe, 4 Cox C. C., 449. Reg. v. Plummer, 1 Car. & K., 600. Nixon v. People, 2 Scammon, 269.
Another series of requested instructions embody certain general propositions as to degrees of negligence, among others that mere carelessness is not necessarily criminal; that carelessness is not sufficient to convict without proof beyond reasonable doubt of intentional neglect; that there is a difference between the negligent doing of an act and the careless omission to perform one’s duty; the negligence in the former case being greater in degree; [268]
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Barrows, J.
Having been found guilty upon the first and third counts of an indictment in which he is charged with manslaughter the defendant moves in arrest of judgment, and excepts to the overruling of his motion, as well as to certain instructions given to the jury and certain refusals to instruct in conformity with his requests.
The crime was alleged to have been committed against the person of his wife, and the evidence for the state tended to show that his wife was insane and had been for some years, at times, so as [265]*265to tear all the clothing from her person, that she became a cripple, able to move herself by her hands only; that in this condition she was confined in a very cold open room in the'ell part of the prisoner’s house day and night without fire, with no garment on her, nothing to sleep on but husks and rags in a filthy condition, and no covering but a piece of canvas from the 18th of January to the 9th of February, 1875; that there was a broken pane of glass in one of the windows, permitted to remain open; that when found by the neighbors her feet and hips were badly frozen, swollen and discolored; that gangrene had already commenced, followed by mortification and death caused by freezing; that the prisoner had full knowledge of her condition and of the condition of the room and was able to support her in a proper manner. The medical men who examined her on the 10th and 11th of February, testified that in their opinion the freezing must have occurred three or four weeks previous.
Now, while the defendant contended that if his wife suffered from the causes alleged, it was without his knowledge and contrary to his intention and gave evidence which he claimed supported this position, he admitted upon the stand that he knew the condition of the room ; that ho passed through it every night but one, from January 19th to February 9th to fasten the doors; that every winter before, when she had been kept there, he had warmed the room by a stove and intended to do so last winter, but not having the money on hand, put it off, and the only examination which he made of the condition of his wife, when in the room, was to look and see if the canvas was over her.
We will consider first the questions raised as to the sufficiency of the indictment.
The defendant objects to the first count, because he says it contains no allegation that the condition of his wife, her necessities, and the facts alleged in that count as constituting the crime of manslaughter were known to him.
The count alleges the relation which he sustained to the deceased, his duty to provide for her necessities, her own incapacity and his ability to do it, and that he did “feloniously and willfully [266]*266neglect and refuse to provide necessary clothing, shelter and protection from the cold and inclemency of the weather” for her from the 19th day of January to the 9th day of February, the consequent sickness and death of the wife, and manslaughter by the defendant “in the manner and by the means aforesaid.”
The objection is not sustained. The allegation of a willful and felonious neglect and refusal to perform the duties devolved upon him by law in the premises of itself imports an allegation that he knew the necessities of his wife and the essential facts alleged in the count.
A man cannot be said in any manner to neglect or refuse to perform a duty unless he has knowledge of the condition of things which requires performance at his hands.
The charge of neglect and refusal to furnish the necessary protection against the cold is tantamount to an averment that the defendant had all the knowledge of the facts which it was necessary that he should have, in order to inculpate him. It was not necessary to allege nor to prove that the defendant knew from day to day the effect which his brutal neglect was producing. If such knowledge could have been brought home to him he should have been charged not with manslaughter, but with murder; and it is not easy to see how he could have avoided the inference of malicious intent.
¥e hold the first count to be sufficient, even under the former practice requiring that the manner and means by which the crime was accomplished should be set forth in detail.
But such allegations are now unnecessary under the provisions ofE. S., c. 134, § 7.
The defendant’s objections to the third count are futile. Similar objections were made and overruled in State v. Verrill, 54 Maine, 408.
Nor do we see that the defendant has any good cause of complaint when we examine the instructions and the refusals to instruct as requested. One extended series of requests called for instructions upon the question of the prisoner’s intent, maintaining that, “if the evidence can be reconciled with an innocent intent on the part of the prisoner he must be acquitted;” that a wrongful [267]*267intent was of the essence of the offense without which it could not exist; that, whatever the result of an action or omission, a man can be held guilty only upon the ground of evil intentions; that there must bo proof to the satisfaction of the jury of a wrong intent, of a willful wrong done.
The presiding judge refused these requests and instructed the jury that it was not essential to prove criminal intent in order to constitute the crime charged in this case. This was clearly right.
A criminal intent on the part of a party who has carelessly caused the death of a human being need not be alleged nor proved in order to constitute manslaughter when such death was the result of the neglect of a known duty to the deceased.
Add to the matters charged in this indictment the element of an evil and wicked intent and you have the malice, express or implied, which would make the crime murder, either of the first or second degree according to the character of the intent.
It is settled beyond a question that the naked negligent omission of a known duty, when it causes or hastens the death of a human being, constitutes manslaughter. Hence, Maule, J., in Regina v. Haines, 2 C. & K., 368, charged the jury in these words : “If you are satisfied that it was the ordinary and plain duty of the prisoner to have caused an air-heading to be made in this mine, and that a man using reasonable diligence would have had it done, and that, by the omission, the death of the deceased occurred, you ought to find the prisoner guilty of manslaughter.”
.For further illustration of the doctrine that manslaughter may be committed by a negligent omission of duty see Reg. v. Marriott, 8 Car. & P., 425. Reg. v. Edwards, id., 611. Reg. v. Lowe, 4 Cox C. C., 449. Reg. v. Plummer, 1 Car. & K., 600. Nixon v. People, 2 Scammon, 269.
Another series of requested instructions embody certain general propositions as to degrees of negligence, among others that mere carelessness is not necessarily criminal; that carelessness is not sufficient to convict without proof beyond reasonable doubt of intentional neglect; that there is a difference between the negligent doing of an act and the careless omission to perform one’s duty; the negligence in the former case being greater in degree; [268]*268that many acts of blamable negligence for which one would be liable in a civil action, will not support an indictment for injury or death resulting from such negligence; that it is not every degree of carelessness or negligence upon which death ensues, that will render the negligent person liable for manslaughter; that whether or not the accused is guilty of such acts and intent as to make him criminally liable to conviction of manslaughter, therefor, is purely a question for the jury.
The requested instructions were refused; but the jury were fully instructed as to the facts which it was necessary for them to find before they could pronounce the defendant guilty, and upon the law applicable to the facts.
One obvious reason for refusing the requests was that upon the defendant’s own version of the facts the requests were not pertinent to the condition of things developed, and could only have tended to mystify it, and mislead the jury.
The negligence of the defendant was of the grossest and most culpable kind, regarding only the facts which he himself admitted to be true.
The defendant further requested the judge to instruct the jury “that in order to justify the inference of legal guilt, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt; that the jury must consider whether the circumstances proved necessarily involve the guilt of the prisoner or only probably so; and when the evidence merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof of guilt however great that probability may be.”
The judge did not give these instructions in this form; but the exceptions state that he did “fully instruct the jury as to the burden of proof and the degree of proof necessary to establish every fact required to prove the guilt of the prisoner,” in a manner to which no exception is taken.
The reason last mentioned for the refusal of other instructions applies also to these. There was no occasion for them. It is quite possible to conceive of cases where they might be pertinent [269]*269and proper ; but there was nothing in the questions upon which the jury had to pass in this case that made them so here.
There is another reason. When a judge has once given the law arising upon the evidence fully and correctly, he is under no obligation to repeat the propositions at the request of a party in such form as the whim or shrewdness of counsel may suggest as likely to produce an impression favorable to his side of the case. A refusal to do this is matter of discretion, and not exceptionable. State v. McDonald, 65 Maine. State v. Pike, 65 Maine, 111, and cases there cited.
We find recited in the exceptions two paragraphs of the judge’s charge, of which the defendant complains as being in contravention of c. 212, Laws of 1874. We do not think they can be so regarded. These paragraphs seem to have been selected as most obnoxious to the charge of being expressions of opinion upon questions of fact arising in the case, of all the utterances of the presiding judge during the progress of the trial. They call the attention of the jury to testimony coming partly from the defendant himself, having an important bearing upon the questions upon which the jury were to pass, and consist mainly of interrogatories addressed to the jury, which it behooved them to consider and answer in coming to a conclusion upon the main question.
Considering the cold blooded and cruel recklessness of which the defendant upon his own showing was guilty, we think the judge must have refrained with praiseworthy precision from saying anything that could be deemed incompatible with the statute referred to. Exceptions overruled.
Appleton, O. J., Walton, Daneorth, Virgin and Peters, JJ., concurred.