183 Ky. 209 | Ky. Ct. App. | 1919
Affirming.
The appellant is appealing from a judgment convicting him of involuntary manslaughter and fixing his punishment at confinement for twelve months in jail and the payment of a fine of $500.00 for driving or forcing an automobile over or against Ernest Combs, a fifteen year old boy, early in the afternoon of Monday, April 8,1917, upon a public street in the city of Owensboro, thereby inflicting injuries from which the latter died within a few hours thereafter.
The errors assigned are the trial court did not instruct the jury upon the whole law applicable to the case, and incorrectly stated the law in instructions given.
Baskett did riot testify, and no witness testified in contradiction of appellant’s testimony upon this question, except there is some confusion as to whether Baskett’s car in passing struck the front or rear fender of appellant’s car.
They are as follows:
2. “If the jury believe from the evidence, that the accused, Browning Held, did not intend to force or drive said automobile in, upon, or against Ernest Combs or in a manner reasonably calculated to endanger the lives of persons then and there upon the highway, and that at such time the accused believed, and had reasonable grounds to believe, that there was no danger in driving said automobile in the manner he then' drove same, but further believe from the evidence, to the exclusion of a reasonable doubt, that in this county, and within twelve months next before the finding of this indictment, the defendant did drive or force said automobile in a careless or reckless manner, in, upon or against said Ernest Combs and that the killing of said Ernest Combs resulted from such carelessness, forcing or driving of said automobile by the accused (if such there was) then the jury should find the defendant guilty of involuntary manslaughter, an offense included in the indictment, and fix his punishment by imprisonment in the county jail in the reasonable discretion of the jury, or by fine in their reasonable discretion, or both by fine and imprisonment in the county jail in their reasonable discretion, and the jury may say in their verdict that said fine or imprisonment, or both, shall be at hard labor, in their reasonable discretion.
3. “If the jury believe from the evidence, to the exclusion of a reasonable doubt, that at the time the automobile in question struck said Ernest Combs (if it did so) the same was proceeding upon a street or highway of the city of Owensboro, Kentucky, at a speed greater than is reasonable and proper, having regard to the traffic and use of the highway or so as to endanger the*212 life or limb or injure the property of another person, then such speed was unlawful, and if the jury believe further from the evidence, to the exclusion of a reasonable doubt, that said automobile struck and killed said Ernest Combs or caused him to sustain certain mortal hurts, wounds, or fractures as described in the foregoing instruction while going at such speed, from which said Earnest Combs did die'within a day thereafter, the jury should find the defendant guilty of involuntary manslaughter, an offense included in the indictment, and fix his punishment as provided in instruction No. 2, unless they further believe from the evidence, to the exclusion of every reasonable doubt, that said automobile was being driven as described in instruction No. 1, in which event they will find as directed in instruction No. 1.”
Obviously, it would, have been much better, both from a standpoint of artful preparation and of easy comprehension, had the two instructions been combined, but the mere fact that the different conditions described in the evidence which separately made the homicide involuntary manslaughter, were separately presented in two rather than one instruction, if correctly set forth, certainly would not be prejudicial error since unless defendant’s conviction was authorized by the jury upon proof of facts not amounting to the offense of involuntary manslaughter, he has no valid cause for complaint under our code, so far as these two instructions aré concerned.
It will be seen that instruction No. 2 makes of the homicide involuntary manslaughter, if committed unintentially, by the careless operation of an automobile upon a highway, while instruction No. 3 states that the homicide was also involuntary manslaughter, if it resulted from defendant’s operation 'of an automobile upon a street in the city of Owensboro, “at a speed greater than was reasonable and proper, having regard to the traffic and use of the highway or so as to endanger the life or limb or injure the property of another person,” such rate of speed at that place being declared unlawful.
It is therefore apparent that the court was attempting to present by separate instructions the two elements always recognized in common law definitions of involuntary manslaughter; the one, unintentional killing resulting from the doing of an unlawful act, and the other
It is therefore apparent instruction No. 3 contained no prejudicial error.
While instruction No. 2 seems to us to unnecessarily qualify the defendant’s intention by the clause, “and that at such time the accused believed, and had reasonable grounds to believe, that there was no danger in driving said automobile in the manner he then drove same, ’ ’ but as this did not affect the instruction prejudicially to the defendant, but rather beneficially, he can not complain thereof, and there is not in the whole instruction, so far as we can discern, anything prejudicial to defendant’s substantial rights, if as a matter of law the careless operation of an automobile near the middle of the day upon a public street, and within the business district of a city of the size of Owensboro, amounts to the doing of a lawful act in an unlawful manner, within the meaning of the ordinarily accepted definition of involuntary manslaughter. This is, we apprehend, the only close question presented by either of the two instructions now under consideration.
This is the first case that has .reached this court, involving criminal liability for homicide resulting from the operation of an automobile, but the principles of law involved are thoroughly settled in this jurisdiction, and there can be no doubt that under the decisions of this court, carelessness or negligence or recklessness in the performance of a lawful act, which results in the death of another, is always unlawful and criminal if the
In Chrystal v. Comlth., 9 Bush 669, this court quoted with approval from 2 Wharton American Criminal Law, sec. 1004:
“Whatever may be the difference as to the degrees of homicide, a party whose negligence causes the death of another is in like manner responsible, whether, the business in which he was engaged was legal or illegal.*215 . . . But even where the business is perfectly legal, negligence in the discharge of it when producing homicide is manslaughter;” but suggested as a necessary qualification thereof:
“To this general rule there may be exceptions, ■ as where an act, careless in itself, is committed with fatal results under circumstances or at a place from which it might be reasonably inferred that no injury' could happen from the carelessness of the party acting. But this is not of that exceptional class of eases; and, considering the instruction complained of, as we must, with reference to its application to the facts, we must conclude that the court did not err in giving it to the jury.”
In that ease, the court approved an instruction upon voluntary manslaughter based upon the “recklessly careless” use of a loaded pistol in a room where others were present, and affirmed a conviction thereunder carrying with it confinement in the penitentiary, from which it is clear that if a “recklessly careless” use of a loaded pistol amounts to voluntary manslaughter, a want of ordinary care in its use in the presence of others liable to kill, and which does kill, would necessarily be involuntary manslaughter. See also to the same effect Sparks v. Comlth., 3 Bush 111; Smith v. Comlth., 93 Ely. 320.
So the remaining question to be determined, and this is the only new feature presented by this case, is whether or not the negligent operation of. an automobile upon a public street in the business section of the city of Owensboro, near the middle of the day, was such careless use of a dangerous agency at a time and place, which, as a matter of law, may be such want of care as under the circumstances, to amount to gross or culpable negligence. If so, then all of the authorities in this state at least, where the common law still applies to such offenses as this, which have not been regulated by statute, are to the effect that such carelessness is culpable negligence involving criminality.
The evidence shows that the place of the accident on. West Fifth street, between St. Ann and Frederica streets, in Owensboro, is near the heart of the business section, and within less than a square and upon the same street with the postoffice, and Owensboro1 is, we know, judicially, a city of the third class, with a population of
Complaint is also made of the 4th instruction given:
“4. An ‘accident’ is an unusual and unexpected event happening without negligence, and if the jury believe from all the evidence in this case, that the killing of Ernest Combs by defendant (if such there was), referred to in the indictment and instructions herein, was the result of such an accident, or of an accident occurring under circumstances or conditions other- than as set forth in instructions Nos. 1 and 2, they should find the defendant not guilty.”
The complaint is that the court did not refer to instruction No. 3 in the latter part of the instruction “or of an accident occurring under. circumstances or conditions other than are set forth in instructions No. 1 or No. 2.”
The whole of this clause is superfluous, since the former part of the instruction excuses all accidents such as are therein defined and without further qualification excluded necessarily the states of case covered by instructions Nos. 1, 2 and 3, so the omission was without effect, and we do not think could have in any way influenced the verdict.
For the reasons indicated the judgment is affirmed.