Reagan, John A., Jr.

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Automobiles--Manslaughter in First Degree--Intoxicated Driver

St. John's University School of Law

St. John's Law Review Volume 9 Number 2 Volume 9, May 1935, Number 2 Article 7 June 2014 Automobiles--Manslaughter in First Degree--Intoxicated Driver John A. Reagan Jr. Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Reagan, John A. Jr. (1935) "Automobiles--Manslaughter in First Degree--Intoxicated Driver," St. John's Law Review: Vol. 9 : No. 2 , Article 7. Available at: https://scholarship.law.stjohns.edu/lawreview/vol9/iss2/7 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. NOTES AND COMMENTAlthough the courts have not said the burden is on the insuredto prove the performance of conditions precedent or the truth of hismaterial representations, they have placed upon him the duty of goingforward with the proof after the insurer has given evidence of abreach of a representation. The recent decisions have achievedthat result.38Not being able to waive the physician's immunity, the beneficiaryin life policies often finds it hard to overcome the prima facie casewhich the insurer is allowed to prove without overstepping the boundsof privilege. The result of this is, in many cases, the obstruction ofjustice and a concealment of the facts.39 The legislature by allowingsuch beneficiaries the right to waive the privilege would overcomethis defect.LEO F. BOLAND.AUTOMOBILES-MANSLAUGHTER IN FIRST DEGREE-INTOXICATEDDRIVER.Manslaughter is defined as homicide not amounting to murderin the first or second degree, or justified or excusable homicide.' Itis specifically defined in its most common form by Section 1050, Sub-division 1, of the New York Penal Law as homicide committed with-out a design to effect death while engaged in committing or attemptingto commit a misdemeanor affecting the person or property either ofthe person killed or of another.2sSupra note 34.(1933) 12 ORE. L. RFv. 216, quotes from a letter from Professor Wig-more on the subject of privilege:"For two centuries it has been settled in the law of evidence thatconfidential communications as such are not entitled to any brivilege.The administration of justice must get at the facts of the controversy,or else it is blocked. Any privilege is a distinct exception. The privilegethat was established some years ago in many states for communicationsbetween medical men and patients has proved to be nothing but anobstruction of justice; it obstructs the ascertainment of facts in insur-ance cases and in personal injury cases and in most instances its appli-cation makes a laughing stock of the law of evidence; nor was itjustified by any necessity."IN. Y. PENAL LAW (1909) §1049.2People v. Koerber, 244 N. Y. 147, 155 N. E. 79 (1926) ; People v. Dar-ragh, 141 App. Div. 408, 126 N. Y. Supp. 522 (1st Dept. 1910), aff'd, 203 N. Y.527, 96 N. E. 1124 (1911); People v. Stacy, 119 App. Div. 743, 104 N. Y.Supp. 615 (3d Dept. 1907), aff'd, 192 N. Y. 577, 85 N. E. 1112 (1908) ; Peoplev. Harris, 74 Misc. 353, 134 N. Y. Supp. 409 (1911); People v. McKeon, 31Hun 449 (N. Y. 1884).ST. JOHN'S LAW REVIEWThis statute is intended to protect society from killings whicharise out of misdemeanors of such a nature that, when they are com-menced, they are directed against person or property.3 The crime ofmanslaughter is repugnant to human nature and properly merits adrastic punishment.4  But it is not fitting that a person should beconvicted of manslaughter in the first degree for a death which isnot readily foreseeable as a natural consequence of the commissionof the misdemeanor. For example: A, while driving an automobileat a rate of speed in excess of the speed limit in the locality, struckand killed B who stepped into the path of A's car in such closeproximity that A was unable to stop in time to avoid striking B. IfA was not driving at a speed which would constitute gross or culpablenegligence, he cannot be convicted of manslaughter in the seconddegree.The majority of jurisdictions have held that to kill a person inthe course of driving an automobile in an intoxicated condition isgross or culpable negligence. 5 What constitutes gross or culpablenegligence is a subject of a variety of interpretations.6 In NewYork, it is accepted as meaning a great deal more than negligencesufficient to support a civil action 7 but less than a wanton disregardfor human life or safety.8 In other words, it is a question of degree.The New York Vehicle and Traffic Law is designed to protectthe people of this state from injury to person or property due toany unlawful use of motor vehicles or other means of transportationon its highways. At first glance it would appear that a violation ofIN. Y. PENAL LAW (1909) §1050, subd. 1; People v. Grieco, 266 N. Y.48, 193 N. E. 635 (1934).'N. Y. PENAL LAW (1909) §1051. Manslaughter in the first degree ispunishable by imprisonment for a term not exceeding twenty years.Id. §1053. Manslaughter in the second degree is punishable by imprison-ment for a term not exceeding fifteen years, or by a fine of not more than onethousand dollars.King v. Commonwealth, 253 Ky. 775, 70 S. W. (2d) 667 (1934) ; Morrisv. Commonwealth, 255 Ky. 276, 73 S. W. (2d) 1 (1934); People v. Townsend,214 Mich. 267, 183 N. W. 177 (1921); State v. Horner, 266 Mo. 109, 180S. W. 873 (1915) ; State v. Rountree, 181 N. C. 535, 106 S. E. 669 (1921) ;State v. Palmer, 197 N. C. 135, 147 S. E. 817 (1929); State v. Stansell, 203N. C. 69, 164 S. E. 580 (1932).1 Culpable negligence is something more than the slight negligence neces-sary to support a civil action for damages and means a disregard of theconsequences which may ensue from the act and an indifference to the right ofothers. People v. Angelo, 246 N. Y. 451, 159 N. E. 394 (1927).Gross negligence is the want of even slight care and diligence. White v.Western Union Telegraph Co., 14 Fed. 710 (C. C. D. Kan. 1897); McGrath v.Hudson River R. R. Co., 19 How. Prac. 211 (N. Y. 1860); Seybel v.National Currency Bank, 54 N. Y. 288 (1873).A reasonable degree of care is required of a person to successfully defenda civil action.'A charge of murder in the first degree may be predicated on an actwhich is imminently dangerous to others and evincing a depraved mind regard-less of human life, although without a design to effect death. N. Y. PENALLAW (1909) §1044, subd. 2.NOTES AND COMMENTany of its prohibitions would constitute a misdemeanor affectingperson or property, but it must be kept in mind that this statute isfundamentally intended for the protection of the people as a wholeand secondarily for that of the individual. 9 Violations of its prohibi-tions, except in so far as they are designated by it as felonies, aremisdemeanors. 10 An analysis of Section 1050 of the Penal Lawreveals that the misdemeanors referred to therein are such thataffect either the individual killed or his property, or affect anotheror his property."A strict construction of this statute would require an affirmancein People v. Grieco,12 but since it must be liberally construed,' 3 thecourt held that the statute did not include a misdemeanor affectingsociety as a whole,14 and reversed the conviction. In that case thedefendant was driving an automobile while intoxicated when hestruck two persons who were standing in a safety zone, killing oneand injuring the other, and then struck another automobile. Griecowas indicted for manslaughter in the first degree and for violationsof the Vehicle and Traffic Law, Sections 58 15 and 70, Subdivi-sion 5.1 On the trial, the court charged the jury that to drive anautomobile while intoxicated is, as a matter of law, a misdemeanoraffecting the person or property either of the person killed or ofanother within the meaning of Section 1050, Subdivision 1, of thePenal Law. The Court of Appeals reversed the conviction, sayingthat the misdemeanor charged was not sufficient to support man-slaughter in the first degree. 17  The court, however, did not denythat the indictment found against Grieco would support the crimecharged, but expressly finds that the driving of an automobile whileintoxicated, is a misdemeanor not specifically directed against anindividual.' 8'People v. Grieco, supra note 3.11N. Y. VEicIC AND TRAFFIc LAW (1929) §§16, 17, subds. 2, 5; §§57, 58,65, subd. 1; §§66, 70, subds. 1-9; §§74, 93, 94b; N. Y. PENAL LAW (1909) §29.IN. Y. PENAL LAW (1909) §1050.* * * Homicide is manslaughter in the first degree, when committedwithout a design to effect death;"1:-By a person engaged in committing or attempting to commit amisdemeanor affecting the person or property either of the person killed.or of another; or"2:_* * ,2Supra note 3." N. Y. PENAL LAW (1909) §21." People v. Grieco, supra note 3."Defines reckless driving as a misdemeanor."0 Defines driving while intoxicated as a misdemeanor, unless the personcharged therewith has been previously convicted of the same offense, in whichcase it becomes a felony."' People v. Grieco, supra note 3."8Ibid.ST. JOHN'S LAW REVIEWAssault in the third degree1 9 is the outstanding example of amisdemeanor affecting a person; unlawful entry 2 0 of a misdemeanoraffecting property. But, it will be noticed, here there is either aspecific intent,2 ' or an implied intent 2 2 necessary to commit themisdemeanor. This intent runs directly from the person acting, toand against the property or the individual. In People v. Stacy,2 3 thedefendant was convicted of manslaughter in the first degree. Hehad assaulted and beaten his wife and as a result thereof she died.The court held that this was assault in the third degree, 24 and wassufficient to sustain a conviction of manslaughter in the first degree.2 5When the decision in the Grieco case is considered from theview of an injury to property, the fact that there was an injury toproperty of another person allows the reasoning of the courtto be applied equally to misdemeanors affecting property.2 6The question, therefore, now is whether our statute,27 as it nowstands, is sufficient to include the inebriated driver of an automobilewho runs down and kills a pedestrian, or otherwise kills a personusing the public highways. The court pointed out in the Grieco casethat the defendant could have been indicted for assault in the thirddegree 28 or manslaughter in the 'second degree.29  The sole chargewas manslaughter in the first degree under two counts.30In the prevailing opinion by Hubbs, J., the court said,"A moment before the collision, the defendant's conductconstituted a crime, a misdemeanor against society, againstlaw and order, and against the people of this state. The"N. Y. PENAL LAW (1909) §244."Id. §405."Unlawful entry requires that the person committing the misdemeanorhave the specific intent to enter the premises and commit a felony. Supranote 20.Assault in the third degree requires a specific intent to inflict a bodilyinjury. Supra note 19, subd. 1.Assault in the third degree under the second subdivision of §244 impliesan intent to inflict the bodily injury when there is culpable negligence shown."Supra note 2; see also, People v. McKeon, supra note 2, where thedefendant was convicted of manslaughter in the first degree for a death whichresulted from an assault and battery." "Nor is it apparent how any substantial rights of the defendant havebeen prejudiced by the failure to allege the conclusion that the defendant wasengaged in the commission of a felony or a misdemeanor." People v. Stacy,119 App. Div. 743, 748, 104 N. Y. Supp. 615 (3d Dept., 1907). The indictmentwas sustained. Ibid."People v. Stacy, sutpra note 2."Grieco also ran into an automobile belonging to a third party.'Supra note 11.Supra note 25."N. Y. PENAL LAW (1909) §1052.Manslaughter in the first degree committed while driving in an intoxi-cated condition; and manslaughter in the first degree committed while drivingrecklessly.NOTES AND COMMENTconclusion of the misdemeanor was not one affecting the per-son or property of the person killed or of another." 3,This is a holding which construes the statute 32 to include only thosemisdemeanors which directly and primarily affect the person or prop-erty of an individual, for the court continues,"He had not seen the deceased and did not know that shewas present. The fact that his automobile struck her couldnot instantly change his conduct so as to make it an act affect-ing the person of the deceased and thereby make him liable formanslaughter in the first degree." 33Therefore, if the misdemeanor charged is not such a misdemeanorthat it is primarily directed against an individual's person or propertyand a person is killed thereby, that misdemeanor cannot be the basisfor a charge of manslaughter in the first degree.3 4 O'Brien, J.,dissented from the reversal in this case, however, and said,"The fact that the defendant did not intentionally rundown the deceased does not appear to have any relevancy tothe case. The gravamen of the misdemeanor is the failure toexercise the care of the reasonably prudent man. If he failedto see his victim when he should have seen her, he committedthis misdemeanor. The question is, therefore, whether thecommission of this misdemeanor was such a one as 'affected'the person or property either of Mrs. Burgess or of another.* * * Not only did defendant's commission of the misdemeanoras defined in Section 58 of the Vehicle and Traffic Law offendagainst society in general, but it affected the person of Mrs.Burgess and simultaneously affected the person of Mrs. Briantand almost instantaneously affected the property of the ownerof the car with which defendant collided." 35But the conduct which directly affected the person of the deceasedand Mrs. Briant was the fact that the defendant drove his car throughthe safety zone, which is not a misdemeanor, but is an unlawful act.8 6As applied to this case, Section 21 of the Penal Law is to beconstrued to intend a liberal interpretation of the Penal Law againstthe state and in favor of the person indicted. The decision in theGrieco case, at first glance, seems to be a strained construction ofs' People v. Grieco, supra note 3, at 51, N. E. at 635.Supra note 11.' People v. Grieco, supra note 3, at 52, N. E. at 635.People v. Grieco, supra note 3.People v. Grieco, supra note 3, at 55, N. E. at 637."0N. Y. VEHICLE AND TRAFFIC LAW (1929) §87, subd. 2.ST. JOHN'S LAW REVIEWthe statute3 7 but, when carefully considered, is merely a liberalinterpretation of its terms. If, however, it is the legislative intentthat to kill a person, while driving an automobile in an intoxicatedcondition, shall constitute manslaughter in the first degree, the statuteshould be amended.JOHN A. REAGAN, JR.THE APPLICABILITY OF THE PAROL EVIDENCE RULE TO PLEDGEESAND PURCHASERS UNDER THE NEW YORK FACTORS' AcT.'In a recent New York case,2 the plaintiff, a dealer engaged inthe business of buying and selling jewelry, delivered to anotherdealer in the same business, a diamond ring. The dealer signed thefollowing memorandum: "These goods are sent for your inspectionand remain our property and are to be returned to us on demand.Sale takes effect only from date of our approval of your selection."The dealer pledged the ring with the defendant as security for a loanof $125.00. The defendant advanced the money to the dealer ingood faith and without knowledge of the plaintiff's ownership. Inan action of replevin, against the pledgee, the validity of the pledgeunder the New York Factors' Act,3 was set up as a defense. Thedefendant attempted to show by parol that the ring was delivered tothe dealer for the purpose of sale to such customer as he could find;and that he was merely obligated to return either the goods or theproceeds. The plaintiff contended that these facts were inadmissibleunder the parol evidence rule. Upon an agreed statement of facts,the question was submitted to the Appellate Division,4 which heldthat the evidence should have been excluded. The Court of AppealsIN. Y. PENAL LAW (1909) §1050.IN. Y. PERS. PROP. LAW (1909) §43.2 Nelkin v. Provident Loan Society of N. Y., 265 N. Y. 393, 193 N. E.245 (1934).IN. Y. PERS. PROP. LAW (1909) §43, subd. 1: Every factor or otheragent, entrusted with the possession of any bill of lading, custom-house permit,or warehouseman's receipt for the delivery of any merchandise, and every suchfactor or agent not having the documentary evidence of title, who shall beintrusted with the possession of any merchandise for the purpose of sale, or asa security for any advances to be made or obtained thereon, shall be deemed tobe true owner thereof, so far as to give validity to any contract made by suchagent with any other person, for the sale or disposition of the whole or anypart of such merchandise and any account receivable or other chose in actioncreated by sale or other disposition of such merchandise, for any moneyadvanced, or negotiable instrument or other obligation in writing given bysuch other person upon the faith thereof.'Nelkin v. Provident Loan Society, 241 App. Div. 875, 271 N. Y. Supp.314 (2d Dept. 1934).

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Automobiles--Manslaughter in First Degree--Intoxicated Driver

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