People v. ClinkPeople v. Clink
delivered the opinion of the court.
Upon information it was charged that on January 3, 1919, the defendant, Clink, ‘ with a certain instrument commonly called an automobile, said automobile being a dangеrous and deadly weapon,” made an assault upon John Herbeck, contrary to the statute, etc. Upon trial by the court he was adjudged guilty and fined $1,000. By this writ of error he' seeks the reversal of the judgment.
It is contended that an automobile is not a deadly weapon within the meaning of the Statute on Assault, sec. 25, ch. 38 (J. & A. ft 3507). It is probably true that very nearly all of the reported cases involving a deadly weapon relate to an instrument that was lifted by the hand in making the assault, most frequently something in the nature of a bludgeon. There is no sound reason why the deadly nature of the instrument should be determined solely with reference to its use while lifted in the hands; any instrument which through human control is the means of inflicting a blow may be a deadly weapon. It is any instrument so used as to be likely to produce death or great bodily harm. (Bouvier’s Law Dictionary; McNary v. People,
Can one so nse an automobile as to show intent to inflict bodily harm or death? We hold thаt it can be so used. In the recent case of People v. Adams,
“Negligence, to be criminal, must be gross or wanton negligence. Gross negligеnce is negligence that borders onto recklessness, and wanton negligence, as applied to the running of motors and vehicles, implies a pоsitive disregard of the rules of diligence and a reckless heedlessness of consequences, according to Babbitt, in his work on motor vehicles, section 1517. * '* * Negligence, to become criminal, must necessarily be reckless or wanton and of such a character as shows an utter disregard of the sаfety of others under circumstances likely to cause injury. People v. Falkovitch,
An excellent statement of the general principles is contained in Aiken v. Holyoke St. R. Co.,
“The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to hаve intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a cоnstructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes to the offender, and in this way a charge which othеrwise would be mere negligence becomes, by reason of a reckless disregard of probable consequences, a wilful wrong. That this constructivе intention to do an injury in such cases will be imputed in the absence of an actual intent to harm a particular person, is recognized as an elementary principle in criminal law.”
In State v. Schutte, 87 N. J. L. 15, the defendant was convicted of an assault and battery, with an automobile as the instrument, and this was affirmed, the court saying there were few, if any, decided cases in which the assault was committed with an automobile, “a comparatively modern appliance, but the principles involved are as old as the criminal law itself”; and
“The running of a car at a high rate of speed is an act in which the will of thе driver concurs and hence is clearly a wilful act as distinguished from merely negligent conduct when considered with respect to the state of mind of the offender, which is what the criminal law considers.”
And the opinion concludes:
“There is, therefore, no legal reason why the crime of assault and battery may not be committed by driving an autоmobile on a public highway at a rate of speed that endangers the safety of other persons and actually results in such an injury.”
Intention may be impliеd from, highly dangerous and reckless conduct resulting in injury. (Dunaway v. People,
The trial court was.justified in finding the facts to be that in the early morning, about 4 o’clоck of January 3,1919, John Herbeck was delivering newspapers in a horse-drawn wagon in the City of Chicago. It was clear; an ordinary object could be оbserved nearly two blocks away. The wagon had a step at the rear on which the driver stood. It was standing near 24th street, on the southbound street car track, when Her-beck, having delivered some papers near by, got on the rear end, standing on the step, and started southward. He had gotten but a little way when he was struck by an automobile coming from the north. This automobile was driven by the defendant, Clink. The results to Herbeck were injuries to the head, right leg broken in two places and the left leg so shattered as to necessitate amputation. The front of the automobile was damaged and the windshield broken. Therе were no lights on Clink’s automobile and no horn was sounded as it approached. Clink testified that he was running from 15 to 18 miles an hour. There was convincing evidence that he was somewhat intoxicated. After the collision Herbeck called to Clinic to take him to a hospital, which he finally did, although showing no reаdiness to help Herbeck. An officer who heard the crash came to the scene, and together they drove to the hospital. Clink was so under the influеnce of liquor that he could not help the officer take Herbeck into the hospital. In the hospital Clink began to quarrel with Herbeck, but was stopped by the officer. Later the officer told Clink to wait for him and he would take him to the police station; while the officer was hitching Herbeck’s horse Clink drоve away. He was traced and arrested about 3 weeks afterwards.
Defendant’s story is that as he was going south he saw Herbeck lying in the street and that attеmpting to avoid him he turned out of the roadway and collided with a trolley pole at the curb line. He also denied being intoxicated. We are of the opinion, however, that the evidence shows beyond a reasonable doubt that the injury was inflicted as described by plaintiff’s witnesses; that while partially intoxicated, on a clear night, without lights or signaling with the horn, defendant ran his car on the street rapidly, without any diligence or care for other vehicles аnd wholly reckless and indifferent to the consequences of any one else being upon tbe street in- his way. The natural and probable consequenсe of such conduct would be the infliction of injury and perhaps death to any one in front of him, and under the circumstances he must be held to have intendеd to inflict the injuries which Herbeck suffered.
The amount of the fine is not excessive. The injuries to Herbeck were serious and permanent, and the reckless act of the defendant should not be treated lightly. The finding and sentence of the court are in accord with the law and the evidence and the judgment will be affirmed.
Affirmed.