219 A.D. 646 | N.Y. App. Div. | 1927
The defendant has been convicted of the crime of manslaughter in the second degree, in violation of section 1052, subdivision 3, of the Penal Law, the charge being that he caused the death of one Veronica Fee on the morning of the 1st day of November, 1925, in the city of Buffalo, by carelessly and in a culpably negligent manner operating his automobile so it ran into a Ford sedan in which this young woman was a passenger, causing her to be thrown to the pavement, and that she sustained injuries that caused her immediate death.
Miss Fee was sitting at the right of the driver and on the same seat. They were driving in a westerly direction on West Ferry street, and driving at a speed of from twelve to fifteen miles an hour. As they reached the intersection of West Ferry street and Elmwood avenue defendant approached from the north driving a Cadillac car at a rate of speed which the jury found to be excessive. There was a collision and Miss Fee was killed.
The jury could find that defendant’s car was being driven at a reckless rate of speed at the time of the collision, that he ran
The verdict could be sustained were it not for the fact that the learned trial judge in submitting the case to the jury fell into error which we regard as substantial.
In the main charge the learned court in defining culpable negligence stated that “ culpable ” meant “ blamable,” and that a slight act of negligence might not be culpable, but the court refused to charge, as requested by counsel for defendant, that if defendant was guilty of only slight negligence he must be acquitted, the court refusing the request if the jury should find that the slight negligence referred to was culpable.
We think this was erroneous, for it was misleading, and must have left the impression with the jury that slight negligence might be considered culpable negligence. We do not understand that to be the law.
The court by way of illustration said: “ If this defendant was driving along at a reasonable rate of speed, and from some little error of judgment did some slight negligent act, that, perhaps, might not be in the minds of the jury a blamable act or it might not be culpable negligence.”
That in effect permitted the jury to say that even though defendant was driving along at a reasonable rate of speed, and from some little error of judgment and some slight negligent act he caused the death of this young woman, the jury might, or might not, say that he was culpably negligent.
The jury might from this language have understood the court to mean that even a slightly negligent act on the part of the defendant might be deemed culpable, or otherwise, in the discretion of the jury. We think that was erroneous. (Martin v. Herzog, 228 N. Y. 164, 169.)
The word “ culpable ” in the phrase “ culpable negligence ” is something more than a mere epithet; it suggests or indicates some such meaning as criminal and its use was intended to mark a distinction of some sort between the negligence which is merely a tort paid for by money damages and the negligence which is a crime — an offense against society which must be paid for by penal punishment.
The same negligent act may be both a tort and a crime, but there may be negligent acts that are torts and not crimes.
“ A distance separates the negligence which renders one criminally liable from that which establishes civil liability.” (People v. Rosenheimer, 209 N. Y. 115, 123.)
“ The charge of manslaughter could be sustained only if the
There can be no concise definition of culpable negligence. The existence of the criminal element is in each case a matter for the determination of the jury in view of all the facts, if different inferences may be drawn from the evidence.
A charge under an indictment for culpable negligence should define negligence clearly and then add that culpable negligence must be something more than that, consisting of aggravated facts and circumstances which, in the opinion of the jury, demand criminal punishment rather than mere civil liability.
If the trial judge is beset, as he was here, with requests to charge in terms of gross and slight negligence he should refuse altogether, or else explain them as having been legally embraced in the definition of negligence already given.
We think the learned trial court erred in the ruling on the requested charge relating to slight negligence, for the jury might have understood the court to mean that slight negligence and culpable negligence meant the same thing, and this was erroneous. In other words, the jury might well have understood from the language of the charge that any negligence, however slight, might be deemed culpable, and with this we do not agree.
While the remarks of the assistant district attorney in his summary do not in and of themselves require a reversal of the judgment, we do not approve of his conduct in using the inflammatory language of which the appellant complains.
The judgment should be reversed on the law and a new trial granted.
All concur. Present — Httbbs, P. J., Clark, Sears, Crotjch and Sawyer, JJ.
Judgment of conviction reversed and new trial granted; the said reversal is solely for errors of law and not for errors or questions of fact or as a matter of discretion; this court having reviewed all questions of fact and found no error therein.
