Rice, William

English

University of Kentucky

Kentucky Law JournalVolume 41 | Issue 1 Article 151952The Misdemeanor-Manslaughter Doctrine inKentuckyWilliam RiceUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law Commons, and the State and Local Government Law CommonsClick here to let us know how access to this document benefits you.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationRice, William (1952) "The Misdemeanor-Manslaughter Doctrine in Kentucky," Kentucky Law Journal: Vol. 41 : Iss. 1 , Article 15.Available at: https://uknowledge.uky.edu/klj/vol41/iss1/15KENTuCKy LAw JouRNALreform on the subject. Consequently, although there may be certainpractical advantages in retaining the negligent voluntary manslaugh-ter, the better course is to include the negligent murder as part of astatute covering the entire field of negligent homicide. This statuteshould cover negligent murder and negligent involuntary man-slaughter,28 and it should define and distinguish as precisely as pos-sible the greater and lesser degrees of negligence required for therespective crimes. Language should be used which will sufficientlyinform a jury that the degree of negligence in involuntary manslaugh-ter is greater than ordinary civil negligence, and less than that extremedegree of negligence requisite to a conviction of murder. Also, it islikewise imperative that such a statute establish an appropriate stand-ard of care for negligent murder. This negligence is of the highest de-gree, that type of conduct which at common law is said to evince adepraved mind and a heart devoid of social duty.29Wu.um RICETHE MISDEMEANOR-MANSLAUGHTER DOCTRINEIN KENTUCKYBracton apparently originated the general proposition that wherelife has been taken in the commission of an unlawful act the slayeris guilty of culpable homicide notwithstanding the death was unin-tentional; or, stated differently, that an unintentional homicide can inno case be held misadventure unless it happened in the commissionnary negligence is sufficient for involuntary manslaughter. Lewis v. Com., 801 Ky.269, 191 S.W. 2d 416 (1945); Com. v. Mullins, 296 Ky. 190, 176 S.W. 2d 403(1943); King v. Com., 285 Ky. 654, 148 S.W. 2d 1044 (1941); Cornett v. Com.,282 Ky. 322, 138 S.W. 2d 492 (1940); Embry v. Com., 236 Ky. 204, 32 S.W. 2d979 (1980). In the Marye case the court said that voluntary manslaughter shouldrequire a finding of reckless and wanton conduct and that involuntary manslaughtershould require a finding of gross negligence. Note that the court used the ad-jective gross, whereas it has used the same adjective in describing voluntary man-slaughter in practically all cases. Of course, this is confusing, but the court madesome progress in expressly overruling all cases approving a conviction of involun-tary manslaughter on a finding of no more than ordinary negligence.'Perhaps it should be pointed out that some 34 states have incorporatedwithin their statutory law of homicide a crime designated as "negligent homicide."It covers homicide in the operation of a motor vehicle, its object apparently beingto get more convictions. If such a statute be deemed expedient, it is suggestedthat it not preclude convictions under the ordinary negligent murder or negligentinvoluntary manslaughter.' The state of mind in the negligent murder has been variously described as"general malignity of heart", "the heart regardless of social duty and deliberatelybent on mischief," "a wicked, depraved, and maligant heart," etc. See note 28 Ky.L. J. 53 (1939) and citations therein.NOTES .AND COMUMNTSof a lawful act not negligently performed.' From this principle evolvedthe felony-murder and misdemeanor-manslaughter doctrines, whichstate that the degree of homicide of which one is guilty when deathresults from his doing an unlawful act is murder if such act was afelony, or manslaughter if such act was a misdemeanor.2 Hale andFoster qualified the rule by requiring that the unlawful act must bemalum in se3 and not merely malum prohibitum.4 Although the earlywriters apparently used the phrase malum in se to mean "dangerous initself', 5 it was later given the meaning of "morally wrong in itself,""naturally evil in itself," "socially bad in itself," or the like.6 Althoughunfortunately it is impossible to say just what these phrases meant, itis undoubtedly true that they did not mean "dangerous in itself."Illustrative of the error in diverging from the original intended mean-ing is the following supposition: 7 S attempts suicide in the middle of ahundred acre field. Unknown to S, a tramp is asleep in a nearbyclump of bushes, and the tramp is killed by S's poorly aimed shot.The moral evil attributed to suicide would place such act in thecategory of malum in se and S would be guilty of manslaughter al-though obviously the act was not dangerous per se. Such a result wassuggested in State v. Horton.8 There the defendant, while hunting onanother's land in violation of a statute, committed an unintentionalhomicide. The jury found that the defendant's act was not in itselfdangerous to human life and was free from any criminal negligence.The North Carolina court properly reversed a conviction of man-slaughter based on the unlawfulness of the act, but it also said thatwhere one engaged in an unlawful act free from negligence and theact is not in itself dangerous, an unintentional homicide in the com-mission of the act is a criminal offense only where the act is malum inse and not merely malum prohibitum. Stated affirmatively the courthas said that the perpetrator of a non-negligent unlawful act resultingin the death of another is guilty of homicide if the act is malum in se.'Wilner, Unintentional Homicide in the Commission of an Unlawful Act, 87U. or PA. L. REV. 811 (1939).'26 Am.. Jur. 284 et seq. (1940).'FoSTEn, CRoWN LAw 259 (2nd ed. 1791).'1 HALE, PLEAS OF THE CRoWN 475 (Ed. of 1778).MoRELAN, THm LAw OF HoflcmE 187 (1952).'People v. Townsend, 214 Mich. 267, 183 N.W. 177, 179 (1921) where thecourt considered an act malum in se as one which is "condemned as wrong in andof itself by very sense of common decency and good morals .. "; State v. Horton,139 N.C. 588, 51 S.E. 945, 946 (1905) where the court said: "An offense malumin se is properly defined as one which is naturally evil as adjudged by the senseof a civilized community ..."" MORELAND, op. cit. supra note 5, 189.139 N. C. 588,51 S.E. 945, 946 (1905).KENTucKy LAw JourNALThus the court clearly has used malum in se to mean something otherthan dangerous in itself. In most cases dealing with the subject ofhomicide committed in the perpetration of an unlawful act, dangerdoes actually exist to a greater or lesser degree, but the language ofthe courts in attempting to employ the unlawful act doctrine has re-sulted in ambiguity.The Kentucky court has stated the general proposition by defininginvoluntary manslaughter as "the killing of another in doing some un-lawful act but without an intention to kill,"9 and, more narrowly, "thekilling of one by another, in doing some unlawful act not amountingto a felony nor likely to endanger human life and without intention tokill." 10 (Writer's italics) A typical situation in which the rule is ap-plied is that where the defendant assaults another, causing his death,though there is no intent to kill." In such cases there is generally thereckless conduct necessary for a conviction of homicide in some de-gree, and whether Kentucky, or indeed most any court, will convictof involuntary manslaughter on the sole ground that the homicidalact was committed in the perpetration of an unlawful act where therewas in fact no negligence is doubtful. The language used in the casesindicates that it might; the facts suggest that it might not.12 Usuallythe negligence and unlawfulness of the act are spoken of so conjunc-tively that it is difficult to tell whether either would have been suf-ficient for a conviction without the other. Thus in Sparks v. Common-wealth13 the defendant, apparently for sport, recklessly fired his pistolin the streets of a town, killing his cousin. Although the defendant'sreckless conduct would have been sufficient for a manslaughter con-viction, the court said:"If a man, contrary to law and good order and public security,fire off a pistol in the streets of a town, and death be thereby pro-duced, he must answer criminally for it, whether it be malum in seor merely malum prohibitum; and especially so when he knows . . .he is violating the law. .. "''Wiley v. Com., 229 Ky. 63, 16 S.W. 2d 496 (1929); Lewis v. Com., 140 Ky.652, 131 S.W. 517 (1910); Trimble v. Com., 78 Ky. 176 (1879); Conner v. Com.,76 Ky. (13 Bush) 714 (1878)." Com. v. Owens and Evans, 198 Ky. 655, 249 S.W. 792 (1923); Westrupv. Com., 123 Ky. 95, 93 S.W. 646 (1906).U Conner v. Com., supra, where defendant killed deceased by striking himwith a croquet malet in an altercation occurring during a game of croquet.'There are, of course, numerous cases where a deadly weapon or an auto-mobile was used in a reckless or wanton manner and a conviction of manslaughterwas based solely on the ground of such negligence with little, or no, reference tothe unlawfulness of the act.1366 Ky. (3 Bush) 111, 96 Am. Dec. 196 (1868).'4 Id. at 116, 96 Am. Dec. at 199.NoTEs AND CovnvnmTsAs to whether the defendant intended to fire the pistol or whether hedrew it for the purpose of firing it and it went off before he intended,the court said that the purpose to shoot the gun in town was unlawfuland thus "unlawful conduct, in either case, would be the primarycause of the homicide .. ."15 Perhaps the court is using "unlawful"synonymously with "reckless".In Ellison v. Commonwealth"' the defendant, under the influenceof whiskey, unintentionally killed his kinsman who was trying torestrain him from recklessly flourishing his pistol. The court said thatthe facts did not warrant an instruction on involuntary manslaughterbecause the "act was not simply unlawful, it also tended to thedestruction of human life and was calculated to result in injury ..... 17The court thus implied that if the act had been simply unlawful, itwould have been involuntary manslaughter. However, it is highlyprobable that the court merely meant that defendant's conduct was ofa greater degree of negligence than ordinary negligence, which, priorto the 1951 case of Marye v. Commonwealth,8 was all that was neces-sary in Kentucky for the negligent involuntary manslaughter. Similarlanguage was used where the deceased died as a result of the de-fendant's attempt to procure an abortion.' 9 The court said that it wasnot properly a case of involuntary homicide, as the "act was not onlyimmoral, violative of the law of nature, and deliberate in character,but reckless of life, and wrongful per se ...... ,0 Again the court hasimplied that if the act had been immoral but not reckless, it wouldhave been a case of involuntary homicide. But the court added:"This doctrine [that death resulting from an attempted abortionis murder] should not be based upon the rule of law, that wheneveran unlawful act, one malum in se, is done in the prosecution of afelonious intention; or the perpetration of a collateral felony, anddeath ensues, it is murder... but upon the fact that it is a deliberateact, endangering her life."'The court went on to say that if the act was done in such a waythat it was not likely to injure her, "but through negligence in theoperation death does ensue, we incline to the opinion . that it isbut manslaughter .... ",22Id. at 116, 117, 96 Am. Dec. at 200.112 Ky. Opin. 665 (1883).27 Id. at 666.-240 S.W. 2d 852 (1951)."9Peoples v. Corn., 87 Ky. 487, 9 S.W. 509 (1888). Accord: Wilson v. Corn.,22 Ky. Law Rep. 1251, 60 S.W. 400 (1901).Id. at 490, 9 S.W. at 510, 511.-Id. at 492, 9 S.W. at 511." Id. at 492, 493, 9 S.W. at 511.KENTUCKY LAW JOUNALIn the final analysis, danger seems to be the test. Thus where thedefendant officer killed a fleeing misdemeanant and claimed that hehad tried to shoot over his head to frighten him, the court, althoughquoting the rule that involuntary manslaughter is the killing of an-other in doing some unlawful act with no intent to kill, actually pre-scribed the following instruction for the new trial:"... if Lewis ... failed to exercise reasonable care in handlingor shooting his pistol, and so shot Puckett, they should find himguilty of involuntary manslaughter."But in Ewing v. Commonwealth,24 where the defendant playfullyraised his pistol to the deceased's head and pulled the trigger harderthan he intended, the court stated the rule in its baldest form:"It was unlawful for defendant to point it at her whether it wasloaded or unloaded. When a homicide is committed in the doing ofan unlawful act, the offense is involuntary manslaughter, if the factsare not sufficient to constitute murder or manslaughter."''Again the act was criminally negligent regardless of whether it wasunlawful or not.Thus the question whether a conviction will be had where there isan unlawful act perpetrated without negligence remains unanswered,since in practically all cases where the court has employed the mis-demeanor-manslaughter doctrine, unlawfulness and negligence con-cur.26 But the courts should meet the issue squarely and require anaffirmative showing of negligence in each case without regard to theunlawfulness of the act.27 It is often said that there must be a causalconnection between the unlawful act and the death.2 8 But causal con-nection alone should not be enough to support a conviction.29 It should= Lewis v. Com., 140 Ky. 652, 657, 181 S.W. 517, 519 (1910).129 Ky. 287, 111 S.W. 352 (1908). Accord: McGeorge v. Com., 145 Ky.540, 140 S.W. 691 (1911).2 Id. at 246, S.W. at 355.- Courts have more or less naturally or unavoidably developed an unlawfulact doctrine since criminally negligent acts are either misdemeanors or felonies.' Regina v. Franklin, 15 Cox C. C. 163 (1883)." 26 Am. Jun. 283 (1940).'In Com. v. Couch, 32 Ky. Law Rep. 638, 106 S.W. 830, 16 L.R.A. (N.S.)327 (1908), defendant fired a pistol upon a public highway, frightening JimmieHolliday, who was quick with child. She gave premature birth to the child, be-came sick, and died. A demurrer to the indictment for murder was sustained onthe ground that her death may have been due to improper attention or disease orother cause following her confinement, that death was not the "natural andprobable consequences" of defendant's act. It is always difficult to tell what acourt means when it speaks in terms of "probable cause" and "natural and prob-able consequences." It may mean that there were intervening causes, or that de-fendant was not negligent as to the injured party, or that the consequences of theact were unforeseeable. Thus the court merely means that defendant was notculpably negligent. What if deceased in the Couch case had died from fright im-NoTEs AND CoMmNsalso be necessary that defendant's act was so dangerous in itself as toconstitute criminal negligence. The real danger in employing the mis-demeanor-manslaughter doctrine lies in the probability that convic-tions will be had where defendant's conduct is not dangerous in itself,or at least not dangerous in the degree required for criminal liability.Thus it is concluded that the misdemeanor-manslaughter doctrine isworthless and in some cases might work injustice, that it should berepudiated, and that convictions should be frankly based on criminalnegligence.WmLIAM RICECONTRACTS BY RAILWAY COMPANIES GRANTING TOTAXICAB COMPANIES THE EXCLUSIVE PRIVILEGEOF SOLICITING BUSINESS ON DEPOT GROUNDSIn the recent case of Yellow Cab Co. of Ashland v. Murphy' theKentucky Court of Appeals overruled the holding of earlier cases inregard to the right of a railway company to grant to a taxicab com-pany by contract the exclusive privilege of entering and using the rail-way company's grounds to solicit business. The Cab Company hadentered into a contract with the Chesapeake and Ohio Railway where-by the former was granted the exclusive privilege of going on thedepot grounds to solicit the transportation of passengers and baggage.The Company sought to enjoin the defendants from interfering in anyway with the exclusive privilege granted by the contract. The de-fendants relied on the case of McConnell v. Pedigo2 in which the courthad declared a similar contract invalid. In the instant case the courtrejected the reasoning of the Pedigo case and thus aligned Kentuckywith the decided weight of authority on this question.By the terms of the contract in the Pedigo case, McConnell wasgranted the privilege of standing his hacks at the railway company'smediately upon the firing of the shot? In the only case directly in point (Com. v.Owens and Evans, 198 Ky. 655, 249 S.W. 792 (1928) the indicement chargedinvoluntary manslaughter of a woman known to defendants to be afflicted withheart trouble by going to her house and "raising a racket, fuss and altercation"with her. The court, after stating its usual definition of involuntary manslaughter,sustained the demurrer to the indictment on the ground that the allegations thatdefendants raised a racket and altercation were simply conclusions, "Without de-termining the question of whether one may be guilty of homicide in any of its de-grees by the commission of some unlawful act which produces in the victim excite-ment, irritation, anger, terror or agitation.1248 S.W. 2d 42 (Ky. 1951).'92 Ky. 465, 18 S.W. 15 (1892).

The Misdemeanor-Manslaughter Doctrine in Kentucky

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=3664&amp;context=klj

The Misdemeanor-Manslaughter Doctrine in Kentucky

Abstract

Similar works

Full text

Available Versions

University of Kentucky