State v. LesterState v. Lester
Dеfendant demurred to an indictment accusing him of the offense of manslaughter in second degree, on the ground that the acts or оmissions charged were not stated with sufficient certainty to, and did not, constitute a public offense. The court below overruled the demurrer and certified the case here.
The indictment was found under G. S. 1913, § 8612, subd. 3, declaring manslaughter to be of this degree when committed without any design to effect death, “by any act, procurement or culpable negligence” not constituting a higher crime. Omitting formal рarts, it alleged that defendant:
“Without authority of law, but without a design to effect her death, did feloniously use and employ upon the body of one Buth Nass, an electrical machine or instrument commonly known as an X-ray machine (a more particular description of said instrument or machine being to said grand jury unknown), for the purpose of taking an X-ray picture of the hip of the said Buth Nass for thе sole use and purpose of said Charles A. Lester, with her consent extracted from her upon his assurance that the expоsure of such X-ray would do her no harm, and she relying upon his assurance as a medical man and not otherwise, said Charles A. Lester did then and there attempt to take such picture of subjecting the body of said Buth Nass to the rays of said machine, and did then and there turn аnd apply said X-ray upon the body of the said Buth Nass in and over the region of her right hip, the said machine being a dangerous instrument, except when operated by a skilful manager it was not necessarily dangerous, which danger the said C. A. Lester knew, or in the exercise of the care required under the circumstances he should have known, and said Charles A. Les
This court has frequently declared that an indictment must sеt out the complete criminal offense charged, and every essential element must be alleged directly and certainly; the omission of an allegation without which a criminal offense would not be described being fatal. State v. MacDonald,
The only question necessary to be considered in applying the foregoing tests is whether the criminality of defendant’s acts as constituting the crime of homicide by “culpable negligence” is sufficiently alleged.
Numerous definitions of this term may be found. 2 Words & Phrases, 1780; 1 Id. (2d Series) 1174. But these would be of little, if any, value ih the premises, for the term does not appear in the indictment. Moreover, culpable negligence, that is criminal negligence, is largely a matter of degree, and, as has well been said, incapable of precise definition. Whether it exists to such a degree as to involve criminal liability is a question that must be left, to a great extent, to the common sense of the jury. Hampton v. State,
The failurе to allege knowledge on defendant’s part that his acts involved probability of serious consequences to the decеased, is not fatal to the indictment, the defect, if any, in this regard, being cured by the presumption of contemplation of probable consequences. Com. v. Pierce, supra. Neither was it necessary to allege defendant’s duty to deceased under thе circumstances, nor to set up a specific standard by which his acts might be measured, these being matters of law. If, then, the facts аlleged sufficiently show such incompetency or inattention or indifference to the safety of deceased as has beеn indicated as necessary to give rise to criminal liability, the indictment must he upheld, though it charges neither “culpable” nor any other degree of negligence eo nomine, nor defendant’s acts in other than general terms and as ultimate facts. To state more аs to the latter would be to plead the evidence, which is not required, and “negligence” prefixed by adjectives could not aid the former, unless the facts stated justified
We must takе judicial notice that X-ray machines sometimes inflict serious burns, and the indictment characterizes the instrument used as dangerous unless skilfully hаndled and presumptively known by defendant to be such, notwithstanding which he placed it too close to his subject, and also failed during аn excessive exposure to give her the attention requisite to prevent injury. These allegations import criminal negligence and the questions raised thereby are for the jury. State v. Hardister,
Order affirmed.