It seems to me quite clear that this judgment should not be allowed to stand.
While granting the existence of a legal obligation on the part of a parent, or one standing in loco parentis, to provide medical attendance for a minor child, it seems to me that the obligation does not necessarily import in every case the calling in of a physician. The indictment in the case at bar, however, is framed upon the assumption that the law (Penal Code, §§ 288, 289) requires the parent of a sick child to cause the child to be attended and prescribed for by a regularly licensed and practicing physician and surgeon. The indictment charges that the defendant, J. Luther Pierson, “ did wilfully, maliciously and unlawfully omit without lawful excuse, to perform a duty imposed upon him bylaw, to furnish medical attendance for his said (J. Luther Pierson’s) female minor child, under the age of two years, the said minor being then and there ill and suffering from catarrhal pneumonia, and he, the said J. Luther Pierson, then and there wilfully, maliciously and unlawfully neglecting and refusing to allow said minor to be attended and prescribed for by a regularly licensed and practicing physician and surgeon, contrary to the form of the statute in such case made and provided.” It *417may be suggested that the first part of the language quoted sufficiently charges the crime, and that the subsequent specification in regard to the defendant’s neglect and refusal to allow the child to be attended and prescribed for by a regularly licensed and practicing physician and surgeon may be disregarded as surplusage. It seems to me, however, that this construction is contrary to the plain meaning of the pleader, and that the intention was to charge that the crime consisted not merely of a failure to furnish medical attendance generally, but a failure to furnish medical attendance by a qualified doctor.
If this view of the indictment is correct, it seems to me that it failed to charge a criminal offense in the absence of an allegation or statement of facts showing that the case was one in which a regularly licensed and practicing physician and surgeon ought to have been called. The question as to whether such a state of facts existed must be determined, I think, by the standard of conduct of an ordinarily prudent person. In other words, I think the medical attendance which the law requires the parent to provide for his child depends upon the circumstances of the case; that in some instances ordinary household nursing by the members of the family may be sufficient; that if the illness is of a graver character it may be enough to call in the services of a trained nurse; and when danger is apparent, then the obligation under the law goes so far as to require that a physician be summoned. But the guide to proper conduct must be ascertained by asking, What would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote the recovery of the patient, do under the given circumstances of the particular case ?
The defendant was not tried upon any such view of the law as this. The learned trial judge told the jury that before they could convict the defendant they must find “ that he knew that the child was ill and deliberately and intentionally failed or refused to call in a physician or to give to it such medicines as the science of the age would say would be proper that a child in its condition should have.” It is true that this portion of the charge presented alternatives, and imported that the defendant might comply with his obligations under the law by giving; proper medicines, even if he did not call *418in a doctor; but I think it' was going too far to imply, as does the. language quoted, that he would necessarily fail to discharge his duty if the medicines he gave were not such as the science of the age would say were proper. As I have already intimated, I think the standard, which should be applied is the conduct of an ordinarily prudent person.
If I am right in my construction of the indictment, in holding that the fair import of the language used therein is to restrict the charge to a failure to allow the child to be treated by a regularly licensed physician and surgeon, and if I am also right in thinking that the medical attendance prescribed by the law does not under all circumstances require a physician to be summoned, it follows that the facts stated in the indictment do not constitute a crime. This objection may be taken under the plea of not guilty, as well as by demurrer (Code Crim. Proc. § 331), and also in arrest of judgment. It is true that no motion in arrest of judgment appears in the record and that no exception was taken to the language which I have quoted from the charge; but where it appears that a criminal case has been submitted to a jury upon an indictment which does not charge a crime and upon an erroneous theory of the law applicable to the subject-matter, the appellate court possesses the power to reverse, even in the absence of exceptions. (Code Crim. Proc. § 527.)
Hirschberg and Jenks, JJ., concurred; Goodrich, P. J., read for affirmance; Woodward, J., not voting.