Summary
In Albert v. Commonwealth, 181 Va. 894, 27 S.E.2d 177 (1943), an involuntary manslaughter conviction was upheld where, a pedestrian on a bridge, who could be clearly seen for 400 feet, was killed by a drinking driver operating a car with defective brakes.
Summary of this case from Lewis v. CommonwealthOpinion
Record No. 2718.
October 14, 1943.
Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. HOMICIDE — Involuntary Manslaughter — Definition. — Involuntary manslaughter is the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act.
2. AUTOMOBILES — Involuntary Manslaughter — Driving While Drunk — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, accused, who was driving a truck, struck deceased who was walking on a bridge. There was evidence that accused was intoxicated.
Held: That if accused was drunk when he struck the deceased, the accident was due to the commission of an unlawful act not felonious, since it is a misdemeanor to drive a truck on a public highway while drunk.
3. AUTOMOBILES — Involuntary Manslaughter — Driving While Drunk — Evidence — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, accused, who was driving a truck, struck deceased who was walking on a bridge. A Sergeant of the State Police Force testified that accused stated after the accident that if he struck anybody he was so drunk that he did not know it. Another witness testified that prior to the accident he had called up the owner of the truck which accused was driving and told the owner that accused was so drunk that he should be taken out of control. The officer who arrested accused about a half hour after the accident said that he was then drunk.
Held: That the evidence was amply sufficient to warrant the jury in believing that accused was drunk at the time of the accident.
4. AUTOMOBILES — Involuntary Manslaughter — Unlawful Performance of Lawful Act — Sufficiency of Evidence — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, accused, who was driving a truck, struck deceased who was walking on a bridge. A Sergeant of the State Police Force testified that accused stated after the accident that if he struck anybody he was so drunk that he did not know it. Another witness testified that prior to the accident he had called up the owner of the truck which accused was driving and told the owner that accused was so drunk that he should be taken out of control. The officer who arrested accused about a half hour after the accident said that he was then drunk. When accused turned into the bridge his speed, according to his estimate, was from 30 to 35 miles an hour; deceased was 400 feet away; the bridge was 23 feet wide; there was no intervening traffic, and it was broad daylight. The steering gear was in working order, and there was ample room for accused to pass in safety. Accused testified that he never saw deceased.
Held: That if accused never saw deceased he was grossly negligent, and if he saw her he was grossly negligent. The most that could be said for him if he were sober was that he was guilty of the unlawful performance of a lawful act.
5. HOMICIDE — Involuntary Manslaughter — Established by Recklessness. — Recklessness in itself may establish involuntary manslaughter. Proof of malice is not necessary and negligence must be the proximate cause of the homicide.
6. HOMICIDE — Involuntary Manslaughter — Instruction — Case at Bar. — In the instant case, a prosecution for homicide, the court instructed the jury that involuntary manslaughter is the killing of one accidentally, in the commission of some unlawful act, not felonious, or in the unlawful performance of a lawful act. Accused objected to the instruction on the ground that it was an abstract statement or definition, which, applied to a specific case, was misleading and confusing.
Held: That accused's objection was without standing, since the instruction stated the law.
7. HOMICIDE — Involuntary Manslaughter — Instruction — Failure to Point out How Instruction Misleading or Confusing. — In the instant case, a prosecution for homicide, the court instructed the jury that involuntary manslaughter is the killing of one accidentally, in the commission of some unlawful act, not felonious, or in the unlawful performance of a lawful act. Accused objected to the instruction on the ground that it was an abstract statement or definition, which, applied to a specific case, was misleading and confusing. No attempt was made to tell the trial court wherein the instruction could have misled or confused the jury.
Held: That the objection of accused was without standing, since in failing to tell the trial court wherein the instruction could have misled or confused, Rule 22 of the Supreme Court of Appeals was ignored.
8. AUTOMOBILES — Involuntary Manslaughter — Instruction — Driving While Intoxicated — Case at Bar. — In the instant case, a prosecution for homicide, the court instructed the jury that if they believed beyond a reasonable doubt that accused, while under the influence of intoxicants, drove a truck upon a public highway or bridge, at the time and place of the accident, which struck and killed the deceased, and that such intoxication caused the accident, then they should find defendant guilty of involuntary manslaughter. Defendant objected on the ground that the instruction did not take in the view or defense of accused; that it assumed as a fact that accused was drunk, and also that the truck driven by accused struck and killed the deceased; and, that it was otherwise incomplete, insufficient and misleading.
Held: That the objection was without merit. The instruction was neither incomplete, insufficient nor misleading. It was not mandatory and left upon the Commonwealth the burden of proving beyond a reasonable doubt that the defendant was under the influence of intoxicants and that such intoxicants were the proximate cause of the accident. It told the jury that if it believed that the guilt of the defendant had been established in the manner indicated, he was guilty.
9. AUTOMOBILES — Involuntary Manslaughter — Instruction — Reckless Driving — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, the court instructed the jury that if they believed beyond a reasonable doubt that at the time and place of the accident mentioned in the evidence, the defendant was recklessly, negligently, and carelessly driving a truck, and that such recklessness, negligence and carelessness was so gross and culpable as to indicate a callous disregard of human life and of the probable consequence of his act, and resulted in the death of the deceased, then they should find the defendant guilty of involuntary manslaughter. Defendant objected to this instruction.
Held: No error.
10. HOMICIDE — Involuntary Manslaughter — Carelessness So Gross as to Indicate Disregard of Human Life. — Recklessness itself may establish involuntary manslaughter and when there is added to it a carelessness so gross as to indicate a callous disregard of human life, liability is too plain for argument. When these facts have been established beyond a reasonable doubt and to the satisfaction of the jury, plainly there should be a verdict of guilty.
11. AUTOMOBILES — Homicide — Proof of Negligence. — In a prosecution for involuntary manslaughter from the negligence of the driver of an automobile, as in all criminal cases, proof of the negligence must be clear.
12. AUTOMOBILES — Negligence — Responsibility of Drivers Not to Be Taken Away. — The Supreme Court of Appeals has no intention of whittling away the responsibility of careless or reckless drivers.
13. AUTOMOBILES — Homicide — Instruction — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, accused, who was driving a truck, struck deceased who was walking on a bridge. Error was assigned because of the failure of the court to instruct the jury that before they could convict defendant they must believe beyond a reasonable doubt that the alleged killing was the result of some negligent act, or acts, of the defendant intentionally done, and the defendant could not be convicted if the death was occasioned by mechanical defect in the truck or mere inadvertence for which he was not responsible. The deceased was in plain sight, 400 feet from the accused, at the time of the accident, but the accused said that he never saw her. The brakes on the truck were out of order but the steering gear was not.
Held: No error. If the negligent act was intentionally done, then it would constitute a case of murder and not of involuntary manslaughter. There was nothing to show mere inadvertence.
14. AUTOMOBILES — Homicide — Driving While Drunk — Care Used by Driver Immaterial — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, accused, who was driving a truck, struck deceased who was walking on a bridge. There was evidence to show that accused was drunk at the time of the accident.
Held: That if accused was drunk and his drunkenness brought about the death, he was still liable even though he was as careful as a drunken man could be expected to be.
15. JURY — Conduct of Jury — Casual Conversation of Juror with Witness — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, it appeared that when a Sergeant of the State Police Force took the stand as a witness he had a tablet of papers to which he referred, and a juror was heard to say to him afterwards and during the progress of the trial, "of course you have to take notes." This conversation was known to counsel for the accused, who made no report of the incident to the court.
Held: No error.
16. JURY — Prejudice — Time for Making Objection — Case at Bar. — In the instant case, a prosecution for involuntary manslaughter, it was assigned as error that one of the witnesses for the Commonwealth had told the accused that one of the jurors had said that the accused had killed the deceased to keep from having to go to the army, and that the circumstances raised a strong inference that the witness and juror had talked about the case at the time it happened. Matters in the assignment of error relied upon by counsel for accused were known to him when the witness was examined, and yet the witness was not questioned as to them. Moreover, all of the circumstances were known to counsel when the juror was examined on his voir dire, and the record did not show that any mention was made to him of the facts.
Held: That the assignment of error came too late. Even if it were concluded that inferences could be predicated upon the circumstances, they should have been brought out before the juror was accepted. Counsel was silent when he should have spoken.
17. PRESUMPTIONS AND BURDEN OF PROOF — Proving Unfairness — Person Claiming Injustice. — The burden of showing essential unfairness is to be sustained by him who claims such injustice and seeks to have the result set aside, and it should be sustained not as a matter of speculation but as a demonstrable reality.
Error to a judgment of the Circuit Court of Giles county. Hon. A. C. Buchanan, judge presiding.
Affirmed.
The opinion states the case.
W.B. Snidow, for the plaintiff in error.
Abram P. Staples, Attorney General, and Edwin B. Jones, Assistant Attorney General, for the Commonwealth.
The plaintiff-in-error has been convicted of involuntary manslaughter and sentenced to four years' confinement in the penitentiary. That sentence is now before us on a writ of error.
On the afternoon of July 27, 1942, William E. Johnson and his wife, Lydia, were walking eastward on a bridge in Giles county which spans New River and its immediate valley. That bridge is a thousand feet long and 23 feet wide. On either side of the bridge is a concrete wall or parapet about four feet high, and at its base is a curb about twelve inches high and eight inches wide. Just before the accident Mr. and Mrs. Johnson stopped on the right hand side of the bridge to watch some young people bathing. They then started across the bridge and were proceeding in an easterly direction in single file, the wife in front and both close to the curb, when they were struck by an oncoming truck driven by the defendant. Mr. Johnson, in an effort to escape, mounted the curb; some of his clothes were torn, and he fell from it but was not seriously hurt. Mrs. Johnson was hit and fatally hurt. She died in a short time thereafter. The point of the accident was 397 feet from the east end of the bridge.
For the Commonwealth the court gave this instruction:
"The court instructs the jury that involuntary manslaughter is the killing of one accidentally, in the commission of some unlawful act, not felonious, or in the unlawful performance of a lawful act."
To it this objection was interposed:
"The defendant objected to Instruction No. 1, and assigned as reasons for his objections that the instruction was an abstract statement or definition of involuntary manslaughter, which applied to a specific case, is misleading and confusing."
In Wharton's Criminal Law, Vol. 1, 12th Ed., section 427, involuntary manslaughter is thus defined:
"Involuntary manslaughter, according to the old writers, is where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed. Hence it is involuntary manslaughter where the death of another occurs through the defendant's negligent use of dangerous agencies, * * *" citing many cases.
This in substance is the law on this subject as administered in Virginia:
"Involuntary manslaughter is the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act. 1 East. P. C., ch. 12, sec. 1; 4 H. Comm. 192. See Souther's Case, 7 Gratt. (48 Va.) 673, 678; Com. v. Jones, 1 Leigh (28 Va.) 598, 610." Mundy v. Commonwealth, 144 Va. 609, 131 S.E. 242.
In the Mundy case, on this state of facts, the judgment was reversed by this court. Bertha Mundy was walking down the road with Napoleon West, who was leading his horse. He had proposed to her that they go into the woods and was undertaking to tie his horse to the fence. She was doubtful about his purpose and he said "if you don't believe I am going to tie this horse and do what I am, you take this gun and shoot me." He handed her a pistol, with the barrel pointing to himself, and as he did so, it went off and he was killed. This court was of opinion that it was a simple accident, but we think it plain that the judgment of the trial court would have been sustained had it appeared that the accident occurred in the prosecution of some unlawful purpose or in the improper performance of a lawful one.
The two conditions which make for involuntary manslaughter might have been written into separate instructions or they might very properly have been embodied in one instruction, as they were. So written, they are neither confusing nor misleading.
If Albert was drunk when he drove this truck over Mrs. Johnson, we have an accident due to the commission of an unlawful act not felonious, for it is a misdemeanor to drive a truck on a public highway while drunk. Code, section 4722a.
In reaching the conclusion that Albert was drunk, the jury had before them the evidence of E. B. Hedrick, a sergeant on the State Police Force, who said that this defendant, after having been cautioned that his statements might be used against him, said that if he struck anybody he was so drunk that he did not know it. Some one called up the owner of the truck as Albert was about to start on his last trip and told him that Albert was so drunk that he should be taken out of control. Another witness identified himself as being the one who had called up the owner and corroborated his statement. Another witness, a deputy sheriff for Giles county, arrested Albert about a half hour after the accident and said that he was then drunk.
This evidence is amply sufficient to warrant the jury in believing that he was drunk on this occasion.
The defendant's own account of what happened does not help him but shows that he killed Mrs. Johnson in the unlawful performance of a lawful act.
He testified that he was not drunk but that the brakes to his truck were broken and would not work; that coming down to the east end of the bridge the road was down-grade, and that because of this grade his truck got out of control. If this be true, there was no occasion for him to turn into the bridge at all, for his road led straight ahead.
Let us assume that his turning into the bridge was an error of judgment in a sudden emergency. As a matter of fact, the emergency was not sudden. Moreover, the grade fell away a hundred yards from the bridgehead.
When he turned into the bridge his speed, according to his estimate, was from 30 to 35 miles an hour; the Johnsons were 400 feet away; the bridge was 23 feet wide; there was no intervening traffic, and it was broad daylight. His steering gear was in working order. There was ample room for him to pass them in safety, yet he tells us that he never saw them. If he never saw them, he was grossly negligent, and if he saw them, he was grossly negligent. His truck scarred the right-hand parapet of the bridge for 60 feet from where they were. The most that can be said for him if he was sober is that he was guilty of the unlawful performance of a lawful act.
Recklessness in itself may establish involuntary manslaughter. Goodman v. Commonwealth, 153 Va. 943, 151 S.E. 168. In that case it is said that proof of malice is not necessary and that negligence must be the proximate cause of the homicide.
That case and Mundy v. Commonwealth, supra, are cited with approval in Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675. An instruction given there and affirmed in part reads: The killing must be "accompanied by such carelessness or recklessness on the part of the accused as is incompatible with a proper regard for human life."
[6, 7] Instruction No. 1 states the law as we have written it; the defendant's objection to it is without standing, and for another reason — he said that applied to this case it "is misleading and confusing." No attempt was made to tell the trial court wherein it could have misled or confused the jury and so our Rule 22 has been ignored.
Instruction No. 2 was given on behalf of the Commonwealth:
"The court instructs the jury that if you shall believe from the evidence, beyond a reasonable doubt that the defendant, Homer Albert, while he was under the influence of intoxicants, drove a truck upon the public highway or bridge, at the time and place of the accident mentioned in the evidence in this case, which struck and killed the deceased, and that such intoxication caused the said accident, then you shall find the defendant guilty of involuntary manslaughter as charged in the indictment in this case."
To it the defendant made these objections:
"The defendant also objected to Instruction No. 2, and assigned as his reason for said objection that it was a finding instruction, not taking in the view or defense of the accused; that it assumed as a fact that the accused was drunk, and also that the truck driven by the accused struck and killed the deceased; and, that it was otherwise incomplete, insufficient and misleading to the jury."
These objections are without merit. The instruction was neither incomplete, insufficient nor misleading. It is not mandatory and left upon the Commonwealth the burden of proving beyond a reasonable doubt that the defendant was under the influence of intoxicants and that such intoxicants were the proximate cause of the accident. It told the jury that if it believed that the guilt of the defendant had been established in the manner indicated, he is guilty. Code section 4722a. And in so doing it was plainly right.
The court also gave, at the instance of the Commonwealth, this instruction:
"The court instructs the jury that if you shall believe from the evidence beyond a reasonable doubt that at the time and place of the accident mentioned in the evidence in this case, that the defendant was recklessly, negligently, and carelessly driving a truck, and that such recklessness, negligence and carelessness was so gross and culpable as to indicate a callous disregard of human life and of the probable consequence of his act, and resulted in the death of the deceased, then you shall find the defendant guilty of involuntary manslaughter as charged in the indictment."
The defendant objected:
"The defendant objected to Instruction No. 3, and assigned as reason for his objection that it was a finding instruction, without taking into consideration the defense of the accused, and assumed the fact as proved, that the accused's truck struck and killed the deceased; and, that it was otherwise incomplete, insufficient and misleading to the jury."
Recklessness itself may establish involuntary manslaughter and when we add to it a carelessness so gross as to indicate a callous disregard of human life, liability is too plain for argument. When these facts have been established beyond a reasonable doubt and to the satisfaction of the jury, plainly there should be a verdict of guilty.
In the recent case of Lawrence v. Commonwealth, ante, page 582, 26 S.E.2d 54, decided June 14, 1943, we said:
"There is nothing peculiar about the law of automobiles. Here, as in all criminal cases, proof of negligence must be clear. The general rule was applied in these cases: State v. Fredlund, supra; Fay v. State, 62 Okla. Cr. 350, 71 P.2d 768; People v. Allen, 368 Ill. 368, 14 N.E.2d 397, and Flemming v. Commonwealth, 284 Ky. 200, 144 S.W.2d 220.
"We have no intention of whittling away the responsibility of careless or reckless drivers. A list of our dead is eloquent in their denunciation as are the facts in this case."
This instruction, offered on behalf of the defendant, was refused:
"The court instructs the jury that before they can convict the defendant they must believe from the evidence beyond a reasonable doubt that the alleged killing was the result of some negligent act, or acts, of the defendant intentionally done, and the defendant can not be convicted if the death was occasioned by mechanical defect in said truck or mere inadvertence for which the defendant was not responsible."
If the negligent act was intentionally done, then we have a case of murder and not of involuntary homicide; certainly it was not involuntary if it was intentional. There is nothing to show mere inadvertence. The brakes were out of order but the steering gear was not. On a straightaway bridge, 23 feet wide, the Johnsons were in plain sight for 400 feet, and yet the defendant says that he never saw them. To designate such conduct as inadvertence is to give an extraordinary construction to ordinary words. This instruction is so plainly wrong chat it does not merit discussion.
It may in passing, however, be said if Albert was drunk and if his drunkenness brought about Mrs. Johnson's death, he is still liable even though he was as careful as a drunk man could be expected to be.
J. A. Newton was a juror. It appears that when Hedrick took the stand as a witness he had a tablet of papers to which he referred, and Mr. Newton was heard to say to him afterwards and during the progress of the trial, "of course you have to take notes," etc. This casual intercourse with Hedrick, Sergeant of the State Police Force, took place during the progress of the trial. It was known to counsel for the accused, who made no report of the incident to the court.
This also is assigned as error:
"It came out in the evidence of the defendant, who was the last witness to testify, that Hedrick on the same occasion that he had called the defendant 'a damned liar', had told him that, 'Mr. Newton said that you had been called to the army, to go on the 8th day of August, and you know you killed that woman to keep from having to go to the army.' Neither Hedrick, Sheriff Johnston, nor Deputy Poole denied this statement of the witness; either Johnston or Poole was present when it was made. All these men were in the court room, heard the statement and none was called to deny it. Mr. Newton, doubtless, knew that it was true and they could not deny it. The circumstances raise strong inferences that Hedrick and Newton had talked about the case at the time it happened because Newton was Secretary-Treasurer of the hospital in which Mrs. Johnson died and Hedrick in his elaborate preparation doubtless took in the hospital in making his memoranda. Newton was also Chairman of the Giles County Selective Service Board and Hedrick would naturally inquire as to the defendant's status in the Draft, and the Chairman would be the one to whom he would go."
Hedrick was the first witness introduced on behalf of the Commonwealth. Matters in this assignment relied upon by counsel for the accused were known to him when Hedrick was examined, and yet Hedrick was not questioned as to them at all. Moreover, all of this was known to counsel when Mr. Newton, the juror, was examined on his voir dire, and if any mention was made to him of the facts here relied upon, the record does not show it. Even if we were to conclude that inferences could be predicated upon these circumstances, they should have been brought out before Newton was accepted as a juror. These assignments of error came too late. Counsel was silent when he had a chance to speak.
As was said by the court in Adams v. United States, 317 U.S. 269, 281, 63 S. Ct. 236:
"It is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality."
We think the jury was well warranted in believing that the defendant was under the influence of intoxicants to an extent which made it dangerous for him to attempt to drive this truck and that this was the proximate cause of Mrs. Johnson's death.
The evidence amply supports the verdict. The judgment appealed from is plainly right and should be affirmed.
Affirmed.