19 A.2d 920 | Pa. | 1941
This is an appeal from a judgment and sentence upon a conviction for involuntary manslaughter.
On January 10, 1939, at 6:40 p. m., appellant was operating a Ford automobile in a southerly direction *284
on Ridge Avenue at or near the intersection of that avenue with Rector Street, which enters Ridge Avenue from the east but which does not continue westward of Ridge Avenue. His automobile struck a young woman named Philomena Wilson while she was crossing Ridge Avenue, killing her instantly. The Commonwealth produced testimony that the defendant's car was being driven at about 60 miles an hour. Defendant was placed on trial on April 26, 1939, and on the following day was found guilty of the charge of involuntary manslaughter and was sentenced to undergo imprisonment in the Philadelphia County Prison for a term of 18 months and to pay a fine of $25.00. Upon appealing to the Superior Court a new trial was granted (see
The first assignment of error is as follows: "The Superior Court erred in overruling appellant's fourth assignment of error. This assignment was as follows: 'The court below erred when in defining the crime of involuntary manslaughter the jury were instructed that it is committed by a lawful act which merely approximates unlawfulness, as follows: "This defendant is charged with involuntary manslaughter, and the definition of involuntary manslaughter, members of the jury, is where it plainly appears that neither death nor great bodily harm was intended, but that the death was caused accidentally by some unlawful act not amounting to a felony, or by the commission of a lawful act, not merely carelessness, but so rash and reckless as to approximate unlawfulness." ' " *285
On this phase of the case the Superior Court said: "As to the second question, appellant recognizes that his complaint of the use of the word 'approximate' in the charge of the court was fully argued on the first appeal to this court, and appellant's contention dismissed. The trial court followedCommonwealth, v. Gill,
The basis of the present appeal is the use of the word "approximate" in the excerpt quoted from the instructions. The verb "approximate" literally means to "come near". Webster's New International Dictionary, 2d ed., defines it as follows: "to advance near". The instruction complained of amounted to this: If the death of the victim named in the indictment was caused by the defendant's commission of an act so rash and reckless as to come near to being unlawful, he could be convicted of involuntary manslaughter. This was error. It fell short of what the Commonwealth charged in the indictment and it lowered the standard of proof legally required of the Commonwealth in order to warrant a conviction of the charge made. When recklessness of conduct causes another's death, it must in order to sustain a charge of involuntary manslaughter amount to unlawfulness of conduct. "An unlawful act such as constitutes an element of involuntary manslaughter is a thing which one has no right to do"; quoted in Warren on Homicide, Vol. 1, sec. 86, p. 420, from State v. Woods (Del.)
The Act of March 31, 1860, P. L. 382, sec. 79, amended by the Act of April 11, 1929, P. L. 513, sec. 1, 18 PS sec. 2226, provides: "If any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, it shall and may be lawful for the district attorney, with the leave of the court, to waive the felony and to proceed against and charge such person with a misdemeanor," etc. In other words, the very essence of the crime of involuntary manslaughter is the death of a human being "in consequence ofan unlawful act". The Act of April 28, 1871, P. L. 244, sec. 1, 19 PS sec. 352, provides: "In any indictment for involuntary manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for involuntary manslaughter to charge that the defendant did unlawfully kill and slay the deceased."
If the contention of the Commonwealth is correct, it would be sufficient in any indictment for involuntary manslaughter to charge that the defendant did "almost unlawfully kill and slay the deceased." The Commonwealth's contention is not correct, for he whose acts *287 merely approximate unlawfulness is doing nothing criminal and for such acts he is not subject to indictment. To make out a case of involuntary manslaughter, it must be proved that the death of a human being was caused by another's unlawful act. It is immaterial whether the unlawfulness of the act is inherent in its very nature and purpose or arises only from the mannerof performing an act which in its inception and aims is not unlawful.
The law nowhere countenances careless, negligent and reckless conduct when that conduct menaces the physical well-being of others. Such conduct is therefore unlawful. It may not be unlawful if it menaces only the well-being of the reckless individual himself. It becomes so when others are brought within its compass. In Bisson v. Kelly,
What we have said herein is in harmony with what has long been the accepted law as to involuntary manslaughter. Blackstone in his Commentaries, Lewis Ed., Book 4, star page 192, says: "The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure in this, — that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawful one. . . . So, where a person does an act lawful in itself, but in an unlawful manner, and without due caution and circumspection, as when a workman flings down a stone or piece of timber into the street and kills a man, this may be either misadventure, manslaughter, *288 or murder, according to the circumstances under which the original act was done. If it were a country village where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning, and murder if he knows of their passing and gives no warning at all, for then it is malice against all mankind."
In Com. v. Gable, 7 S. R. 422, at 427, this court, in an opinion by Chief Justice TILGHMAN, said: "Involuntary manslaughter is, where it plainly appears that neither death nor any great bodily harm was intended, but death is accidentally caused by some unlawful act, or an act not strictly unlawful in itself, but done in an unlawful manner and without due caution." In Com. v. Micuso,
In Com. v. Mayberry,
While the basis of a charge of involuntary manslaughter is the causing of another's death by one's negligent act or negligent omission to act, the proof of negligence that will support that charge must be something more than the slight negligence which will support a civil action for damages based on negligence. In 26 American Jurisprudence, sec. 210, p. 299, it is well stated: "Aside from the facts that a more culpable degree of negligence is required in order to establish a criminal homicide than is required in a civil action for damages and that contributory negligence is not a defense, criminal responsibility for a negligent homicide is ordinarily to be determined pursuant to the general principles of negligence, the fundamental of which is knowledge, actual or imputed, that the act of the slayer tended to endanger life. The facts must be such that the fatal consequence of the negligent act could reasonably have been foreseen. It must appear that the death was not the result of misadventure, but the natural and probable result of a reckless or culpably negligent act."
In Com. v. Pierce,
On the other hand, the proof of negligence to support a charge of involuntary manslaughter need not be proof of acts or omissions exhibiting reckless, wicked and wanton disregard of the safety of others. Negligence of that high degree will support a charge of murder in the second degree, as this court recognized in Commonwealth v. McLaughlin,
In Com. v. Beattie,
In 1 East's Pleas of the Crown, 263, is laid down this rule: "A person driving a carriage happens to kill another: If he saw or had timely notice of the mischief likely to ensue, and yet wilfully drove on, it will be murder; for the presumption of malice arises from the doing of a dangerous act intentionally. There is the heart regardless of social duty. If he might have seen the *291 danger, but did not look before him, it will be manslaughter, for want of due circumspection. But if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and he will be excused."
If the appellant in the instant case ran his car in a manner which was rash and reckless at the time and place in question, he was guilty of an unlawful act, for he was doing something the law forbids. He could not be convicted if the act which had fatal consequences only approximated unlawfulness. In criminal trials the proof offered by the Commonwealth must measure up to the charge made in the indictment. Here the charge was that defendant "unlawfully killed" the victim named.
The first assignment of error is sustained. The judgment is reversed and a new trial ordered.