The following opinion was filed April 11, 1922:
Prоspect avenue, one of the principal thoroughfares of Milwaukee, runs in a nearly north and South direction. At its south end it opens into Juneau avenue, an east-and-west highway; a short block north is Knapp- street, also rümíing east and west. Prospect avenue and Juneau avenue are paved with asphalt, and Prospect avenue at the place in question is forty-four feet wide from curb to curb. Shortly before 9 o’clock on the evening in question defendant, with several companions, was in an' automobile driven by defеndant. They had just left a place in the city where they had taken intoxicating liquors. The night was dark and stormy, snow falling and blowing and covering the pavement with a thin coating. A little north of Knapp street an automobile was parked along the east curb of prospect avenue. Several automobiles were parked along its west curb at intervals further north. On turning into Prospect avenue from Juneau avenue there
The court in rendering his judgment stated or found in substance:
That at the time of the collision the defendant was driving his automobile while intoxicated to such an extent that it materially interfered with his guidance of the car and his
That the car was being driven at the time at a speed of at least twenty-five miles an hour;
That considering all the circumstances he was guilty of reckless conduct that might very greatly endanger other travelers upon the highway at that timе;
That, irrespective of the statutes regulating the operation of automobiles, the act of the defendant under the circumstances. in driving such a vehicle at such a speed with other travelers upon the highway, resulting as it did and threatening as it did, was one clearly within thе field of common-law homicide; and that although the defendant should be acquitted of any intentional killing or any intentional or express malice, the circumstances were such as to impute to him implied malice.
Thereupon the court found and determined that thе defendant was guilty, of manslaughter in the first degree under the provisions of sec. 4346, Stats., which reads:
“The killing of a human being, without a design to effect death, by the act, procurement or culpable negligence of any other, while such other is engaged in the perpetration of any crime or misdemeanor not amounting to a felony, or in an attempt to perpetrate any such crime or misdemeanor, in cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
Defendant contends uрon this review that the evidence does not warrant'a conviction under the statute just quoted.
It having been conceded in this case that this was an involuntary, that is unintentional, killing of Mr. Fehlinger, it was necessary, in order to support a conviction for manslaughter in the first degreе under this statute, that the state should prove by evidence that satisfied beyond a reasonable doubt that there were present the following elements:
Second, that it occurred while defendant was engaged in the commission of an offense less than felony;
Third, that defendant’s act would be sufficient to create the common-law offense of murder;
Fourth, that there was causal connection between the particular prohibited act and the death.
We shall first discuss the third of the above stated elements, because it is so strongly urged upon us on defendant’s behalf that such element is, under the evidence here, lacking.
That the circumstances must be such as to present the element of common-law murder and that such element is a constituent part of the whole of the above quoted statute has alreadybeen held by this court. Rowan v. State,
In Dillon v. State,
/ Just what class or kind of negligent acts resulting in the killing of a human being were deemed sufficient to supply thе requisite of implied malice to make homicide murder, at common law is quite difficult of ascertainment. In trac-1 ing back through the text-books and the English Reports great difficulties are met to find reported cases in the common law in which a clearly defined statement of the rule is made. But be that as it may, now, and evidently at the time of the adoption of this statute, the generally accepted doctrine is and was that an unintentional killing of a human being through the reckless and wanton doing of an act,
Such has been the declared doctrine even when the aсt resulting in the death was merely wrong in itself though not expressly forbidden by any statute. Comm. v. Hawkins,
But where,vas here, the act from which the death resulted was not only one malum in se but in addition one malum prohibitum, the resultant death is clearly sufficient to warrant a finding of the implied mаlice which would make the causal act murder at common law.
In Pliemling v. State,
The precise point, however, has been squarely held in cases of accidental death resulting from the reckless driving of automobiles, in such cases as State v. Campbell,
The fourth element, namely, a causal connection between defendant’s act so in violation of the statute and the death, was found to exist here by the court, and the evidence clearly warranted such conclusion. This element requires that the state has the burden of showing more than the mere fact that there is coincidence of' time and place between the act declared to be a misdemeanor and relied upon to sustain the given charge of manslaughter and the fact of death. Under the facts here there was a clear connection of causé and effect between the specific violations by defendant of sec. 1636 — 49, supra, and the death. That there must be such causal connection in order to sustain a conviction is held in Pliemling v. State,
The distinction is manifest between such violations as here presented of a misdemeanor statute with their possible and evident relationship of cause and effect to the killing and the mere coincidence of time in the killing and the violation of some other statute, such, for instance, as punish the driving of an unlicensed or unregistered motor vehicle
It is further illustrated in the case of State v. Horton,
It is further urged on defendant’s behalf that the evidence in this case warrants or requires a determination to thе effect that the deceased was himself guilty of negligence in his management of the motorcycle to such an extent that it should be held to have proximately contributed to the collision, and that such contributing negligence by him may be successfully interposed as а bar to this prosecution, as much so as it might or could be in a civil action against him for the resultant damages.
In a criminal prosecution such as this by the state, in which a defendant is charged with the taking of a human life, the fact that deceased may have in a measurе, by his own carelessness, contributed to the unfortunate result cannot be recognized as a defense. The reason is plain, owing to the substantial difference between a criminal action prosecuted on behalf of the state and a civil action instituted tо recover the damages resulting from the same accident. While no doubt the entire circumstances surrounding the killing are proper for the consideration of the jury in determining whether or not the defendant was negligent, yet his
Although the question has not been decided in this state upon this precise statute, yet we are satisfied that such is the proper view to take. It has been so held in other jurisdictions. State v. Campbell,
That no precise rate of speed is. fixed in the statute regulating the management of automobiles (sec. 1636-49, supra), in the provision thereof as to. reckless driving, and for that reason subject to the possible criticism of there being' no definite standard fixed by which a person can regulate his conduсt with any degree of certainty that he is at the given time violating or not violating such a statute, cannot be recognized as a valid objection. A fixed and definite rate of speed under one set of circumstances might clearly be not careless or recklеss, and under another set clearly so. It is inherent in the nature of the subject matter of the legislation and cannot be avoided or defeat the application of such statute. The same question was but recently fully discussed and determined by this court. Mulkern v. State, 176 Wis. 490,
Being therefore convinced that the evidence fully war
By the Court. — Judgment affirmed. x
The plaintiff in error moved for a rehearing.
In support of the motion there was a brief by A. C. Umbreit and Glenway Maxon, attorneys for plaintiff in error, and C. H. Van Alstine, of counsel, all of Milwaukee.
The motion was denied, without costs, on June 6, 1922.