A jury found appellants guilty of involuntary manslaughter. Ark. Stat. Ann. § 41-2209 (Repl. 1964). The punishment of each was assessed at a one year suspended sentence in the State Department of Correction and fines of $100. The sole issue upon appeal is the sufficiency of the evidence to sustain the verdicts. Appellants recognize that in determining the sufficiency of the evidence, upon appellate review, it is only necessary to ascertain that evidence which is most favorable to the appellee and if any substantial evidence exists, then we must affirm. Williams v. State,
The appellants, Robert L. Flippo, Jr., and Robert M. Flippo, are respectively father and son. Late in the afternoon of the tragic occurrence, the father drove his son, Bobby, and the son’s teenage friend, Terry Dunlap, to a clover field several miles from their home for the purpose of discovering deer tracks in preparation for the forthcoming hunting season. Among other weapons, Bobby, a college student, took a new 30.06 rifle with him. Mr. Flippo stopped the truck in the field and the two youths got out. Bobby took his rifle with him thinking he might see a deer. After walking about 150 yards, Bobby raised the rifle, which was equipped with a telescopic sight, and fired once thinking he saw a deer. The weather conditions impaired visibility since it was overcast and approaching nightfall.
About a minute later, Bobby returned to the truck and expressed his belief that he had killеd a deer which he heard “bay.” Terry, however, said he heard three small caliber rifle shots, which were later determined to be distress signals. After approximately ten minutes, Bobby convinced his father to return to the scene and search for the deer. Bobby and Terry found Roy Ralph Sharp approximately 140 yards from where Bobby fired his rifle in the direction of the victim. There was evidence that the victim was partially obscured by a tree with low branches from which the bullet ricocheted. The victim was conscious and asking for help. He was a “big man,” weighing 225 pounds, and he left leg was “almost off at the hip.” He had “drug” himself approximately twenty paces out of the woods. Bobby administered no first aid although there was evidence that he had won a “National 4-H Safetyman” award based upon his knowledge of “all aspects оf safety.” He and Terry ran to a nearby residence, which happened to be the residence of the victim’s 72 year old father. There they told Mr. Sharp that they had found a person who was wounded. The boys returned to the Flippo truck where they told Mr. Flippo about the accident. Bobby then told his father than Mr. Sharp was going to follow them back to the scene of the accident. When they arrived neаr the scene, Mr. Flippo and Bobby told Mr. Sharp that they were going to call an ambulance. Bobby gave Mr. Sharp directions as to the location of the victim. There was no offer of assistance tо Mr. Sharp in removing the victim in one of the trucks for medical aid. After they had left, Mr. Sharp found the victim and then learned that he was his son. He asked his father to get assistance. Mr. Sharp told him “|S]on, some folks have gone to call an ambulance. You lay right still and it will be here in just a few minutes.”
The Flippos left and drove to the Flippo home which was twelve or fourteen miles away. Mr. Flippo, who was told by Terry that the victim’s leg was nearly severed, drove past numerous houses, some of which had telephones, and a cafe, which was only 2.3 miles from the wounded man. The cafe was open and an outside public teleрhone was plainly visible. Mr. Flippo stopped once at a residence to use a phone at Bobby’s suggestion and when the motor almost stopped, they continued on to the Flippo residеnce where they were certain there would not be a party line. “[T]here was conversation about removing the rifle from the truck so nobody would know we had the rifle and was hunting out of season. ” At Mr. Flippo’s direction, after reaching the, residence, Bobby and Terry switched the high powered rifle and another rifle from the truck to a “shack” for a shotgun, which was placed on the gun rack in the truck. Then, Mr. Flippо called an ambulance which met him approximately 25 minutes later at the cafe, which he had passed en route to his residence. While Mr. Flippo waited at the restaurant for the ambulance, Terry and Bobby returned in the Flippo truck to the scene where they assisted Mr. Sharp in placing his son in the Sharp truck. A short distance down the road, they met the ambulance to which the victim was transferred, it aрpears Roy Sharp died either shortly before or after he was placed in the ambulance.
After giving up on the Flippos, Mr. Sharp left his son in the field and found someone at a nearby residence, whо then had a neighbor call an ambulance. Mr. Sharp was only away from his son about four minutes. He further testified that from the time he found his son and Bobby and Terry returned, it was about forty minutes to an hour and fifteen minutes.
A pathologist testified that the victim bled to death, and it is possible that the victim “could have been saved” if he had been hospitalized while still conscious. He testified there were other things that could have possibly saved his life: i.e., “the quicker you get a person in the better their chances of living;” “if a shirt or anything had been put around the body, the thigh, above that point that would have stopped the bleeding.” It was his opinion “[T]hat had proper treatment been initiated immediately at the site, he could have been saved.”
Ark. Stat. Ann. § 41-2209 (Repl. 1964), which defines involuntary manslaughter, reads:
If the killing be in the commission of an unlawful act, without maliсe,, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.
In State v. Green,
A mor$ difficult question is presented with respect to Mr. Flippo. He, as a parent, cannot be deemed an accessоry after the fact in the circumstances here. Ark. Stat. Ann. § 41-121 (Repl. 1964). The cases cited by appellee that appellant was an active participant in the tragic shooting are distinguishable. Those cases involve the owner of a car or truck who allows another to knowingly drive in a culpably negligent manner under the owner’s direction and control. In this case, Bobby, a college student who is knowledgeable in gun safety, cannot be said to have been within his father’s control. Neither did Mr. Flippo acquiesce in the culpable manner in which Bobby fired. Bobby was out of and away from the truck.
However, the stаte alleged and presented evidence to the jury that Mr. Flippo and his son had a duty to render aid to the wounded man, upon disovering him, and failed to do so causing death. “For criminal liability to be based uрon a failure to act it must be found that there was a duty to act - a legal duty and not simply a moral duty.” Lefave & Scott, Criminal Law 183 (1972). If the omission to act was intentional, but without the intention or expectation оf fatality, the crime would be involuntary manslaughter because of criminal negligence. Perkins on Criminal Law 603 (2d Ed. 1969). In Janes v. United States,
There are at least four situations in which the failure to act may constitute breаch of legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the hel/dess person as to prevent others frоm rendering aid. (Emphasis added.)
See also 40 Am. Jur. 2d, Homicide § 90, and King v. Commonwealth,
Affirmed.