Jett, W. S., Jr.

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University of Kentucky

Kentucky Law JournalVolume 25 | Issue 2 Article 111937Criminal Negligence--Standard of Care NecessaryW. S. Jett Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.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 CitationJett, W. S. Jr. (1937) "Criminal Negligence--Standard of Care Necessary," Kentucky Law Journal: Vol. 25 : Iss. 2 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol25/iss2/11STUDENT NoT swas a matter of degree. So long as the basis of criminal responsibilityIs predicated upon negligence it is immaterial whether the defendantwas engaged in a lawful or an unlawful act,2 or what the degree ofthe homicide happened to be,2 ' the only question being whether, underthat particular situation, the defendant's conduct measured up to thatof an ordinary man. It, therefore, seems erroneous to instruct thatsimply because the defendant was using a dangerous weapon a higherdegree of care should be required, or on the other hand that criminalliability cannot be imposed unless there is something in the nature ofgross negligence. In determining criminal responsibility based uponviolation of any duty owed to the state, the jury should be instructedas to whether, under that particular situation, the defendant exercisedsuch care as an ordinary man would have exercised.CnTErxI s TIGNOn.CRIMINAL NEGLIGENCE-STANDARD OF CARE NECESSARYThe defendant was indicted for manslaughter. The act of culpa-bility as alleged In the information was that defendant feloniously andrecklessly, without regard to the lives or safety of others, placed aloaded trap gun in such a position and manner on the inside of hischili stand in Joplin, Missouri, as to cause said gun to be fired ordischarged by the movement or opening of a certain window in thebuilding. The court instructed the jury that culpable or criminalnegligence, within the meaning of the law, is the omission on thepart of a person to do some act under given circumstances which anordinarily careful and prudent man would do under like circum-stances, or the doing of some act, under given circumstances, whichan ordinarily careful and prudent man under like circumstanceswould not do, and by reason of which omission or action another per-son is endangered in life or bodily safety. The supreme court ofthe state of Missouri upheld the instructions of the lower court asbeing correct.1The court in the principal case adopted the standard of care laiddown by the majority of the courts in civil cases based on actions oftort. It shall be the purpose of this paper to attempt to show that sucha standard of care should be followed by the courts in cases based oncriminal negligence. However, the court must keep in mind the factthat in these cases they are dealing with Crime, and not mere civilliability. Therefore, they should instruct the jury that the negligenceof the accused must be established beyond a reasonable doubt, andnot by mere preponderance of the evidence, as is the general rule incases involving civil liability.'Comm. v. Adams, 114 Mass. 323 (1873).Gregory v. State, 152 Miss. 133, 118 So. 906 (1928).State v. Beckham, 306 Mo. 566, 267 S. W. 817 (1924).KENTucKy LAw JOURNALWhen do the negligent acts of an individual cease to be merenegligence and become criminal negligence? It has been said, "Theterm criminal negligence has reference mainly to the authority bywhom reparation is sought. An inseparable incident of criminal negli-gence may be that it is a violation of duty imposed for the preserva-tion of human life. It is criminal because it constitutes a violationof an obligation to the state, which can be remittea only by the state.Criminal negligence Per Se does not differ from negligence simply. Thesame negligence as it affects the individual and the state is respectivelygross negligence and criminal negligence, while it is the ground workof reparation to the private individual; however heinous it may be itis no more than negligence. So soon as it is the subject matter in re-spect of which reparation is exacted by the state, it becomes criminalnegligence. . . Criminal negligence then is negilgence in such cir-cumstances that it imposes an obligation remissible by the state, butirremissible by the individual actually damnified by it, and since thestate will not lightly intervene, criminal negligence must be somesubstantial thing and not a mere casual inadvertence. Between crim-inal negligence, however, and actionable negligence, there is no prin-ciple of discrimination, but a question of degree only."'It Is well settled that a negligent act or failure to act may be thebasis for a manslaughter.' Quaere: What degree of negligence willsuffice to justify a conviction? It is conceded that at the present timea majority of the courts say that negligence must be in the nature ofrecklessness and indifference.4 However, it is submitted that staredecisis should not be an impediment in cases involving criminal lia-bility. The purpose of a criminal action is the protection of society,and not any individual right. However, such an action must be basedupon justice. That is most just which is most fair. Can it be arguedthat a fairer result for all parties concerned can be reached by fol-lowing the standard of "Ordinary Care" than that of "RecklessDisregard"?The tendency of criminal courts in the present day is to enlargethe safety of individuals from the negligent onslaughts of other mem-bers of society. From the time of the early English law we seeattempts made by the courts and text writers to adopt a uniformstandard, for injuries inflicted upon the person of another by negli-gence. Reading from passages of early English law, we see attemptsto adopt the standard of care of an "ordinary man" In cases of man-slaughter committed through negligence. One early English writersays, "Law in these cases does not require the utmost caution thatcan be used, it is sufficient that a reasonable precaution, what is usual'Beven, Negligence in Law, Vol. 3, p. 7.3 See 61 L. R. A. 277-note.4People v. Adams, 289 Illinois 339, 124 N. E. 575 (1919); Fitz-gerald v. State, 112 Ala. 34, 20 So. 966 (1896); State v. Clark, 196Iowa 1134, 196 N. W. 82 (1923); People v. Barnes, 182 Mich. 179, 148N. W. 400 (1914).STUDENT NoTEsand ordinary in like cases be taken. '5 While another says the cri-terion in such eases is whether common or social duty would, underthe circumstances, have suggested a more "circumspect conduct."OWhile still a third says the criterion is whether or not he used "duediligence." 7 The foregoing show the idea in its embryonic stage ofadopting a standard which could be applied to all cases with a reason-able assurance that justice to all would be equally and fairlyadministered.Wrongs may be placed in two categories, public and private. "Aprivate wrong", otherwise termed a "tort" or "civil injury" ,is "anInfringement or privation of the civil rights which belong to indi-viduals, considered merely as individuals." A public offense, or crime,is "a breach and violation of the public rights and duties due to thewhole community, considered as a community in its social aggregatecapacity." sAs has been said before, by the weight of authority the negligencerequired in criminal cases must be more than the failure to exercisethe care of an "ordinary man" under like or similar circumstances.Quaere: Could the tort standard of care be used in cases of criminalnegligence and a better result be reached than that gained by themajority rule?The term "reasonable man" denotes a person exercising thosequalities of knowledge, concept of duty, intelligence, and judgmentwhich society requires of its members for the protection of their owninterests and the interests of others.One advantage to be gained by the adoption of the tort standardof care in criminal negligence cases, is that the minds of the jurorsare relieved from the vague and illusory task of determining hairsplitting distinctions as to due care and negligence, and then refittingthem in their respective compartments.Although "culpable negligence" in criminal law is usually definedas an offense resulting from an accident produced by such careless-ness and recklessness on the part of the party charged as to indicatea disregard for the safety of others, 1 one court has gone so far as todefine "culpable negligence" as the omission to do something which areasonable and prudent person would do, or the doing of somethingwhich such a person would not do under the circumstances surround-Ing the particular case.It has been said in tort actions that "gross" negligence is nothing5Foster's Crown Law (1791) 302.e1 East's Cases of the Crown (1806) 268.7 Hale's Pleas of the Crown (1680) 475.'4 Bl. Comm. 5; see 16 C. J. 50, and cases there cited.I"Sipra note 4."Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270 (1926).11 See American Digest System, Criminal Law, Key No. 23.198 KENTucY LAW JouRNmore than negligence with a vituperative epithet.22 Is it not best tosay that it is only reasonable care that is required in any case; but thegreater the danger the more precautions and the closer vigilance rea-sonable care requires? Rather than to say in order to find the de-fendant guilty of a crime you must find that he was guilty of "wanton"or reckless disregard for the safety of others. The suggested standardwould be open, practicable, and easily applied to any given statementof facts, instead of being a standard based entirely upon degree.The term "culpable" or "gross" negligence is vague and illusory,and places upon the jury the burden of making an arbitrary decision,which may be based upon facts which are not any too clear, whilethe adoption of the standard of care of an "ordinary" man would eradi-cate these difficulties, and place before the jury a clear mental pictureof just what their duties consisted of, thereby simplifying, and at thesame time clarifying, their sworn duty to the state, thus enabling themto reach a practical and just decision.The terms "gross negligence" and "reckless disregard" are notvery helpful in determining what the term criminal negligence means.It is better to describe negligence in terms of care or caution, and tosay one is guilty of manslaughter if he kills another in the commissionof an act in such a way that an ordinarily prudent person under thecircumstances would not have acted. We cannot say, however, thathe is guilty merely because he did not adopt the safest mode of doingthe act, even though that mode were accessible; on the other hand Inorder to be guilty he need not have adopted a clearly unsafe mode. Itis submitted that the proper test should be, "Did he exercise the careof a reasonably prudent person under the circumstances in adoptingthe mode of acting which he followed?"It is well known that cases based upon criminal negligence do notrequire a criminal intent, as is the usual rule in cases of homicide ingeneral. It is submitted that "gross" and "culpable" negligence areso closely associated with actual intent that it is almost impossible toseparate the two entirely, and reach a result which is based uponnegligence alone, which is the desired result.It is the duty of every citizen of a state to conduct himself In amanner consistent with reason and due care. Is it fair to the othermembers of society to say that a man must be guilty of an act border-ing on actual intent as is required, before it can be said that he hasbeen guilty of gross negligence, before society should be entitled toprotection from his depredations? If his conduct is not that of agentleman, and of one who recognizes his duty to safeguard the livesand property of others, then he should be removed beyond the sphereof every-day society and given an opportunity to meditate on his mis-deeds and capricious conduct.Every negligent omission of a legal duty whereby death ensuesto another is indictable either as murder or manslaughter. When auWilson v. Brett (1843 Exch.) 11 M. & W. 113-116.STUDENT NOTES 199man, says Archbold," takes upon himself an office or duty requiringskill or care, if, by his ignorance, carelessness, or negligence he causesthe death of another, he will be guilty of manslaughter.If there be any negligence or want of proper care in the action ofany person from which death to another ensues, the cause of suchdeath cannot be said to be purely accidental; it is the consequenceof such act of negligence or want of proper care, and criminal liabilityshould attach, without proving there was a reckless disregard for thelives of others on the part of the one accused.It is generally well known that in cases of criminal liability basedupon negligence an intent is not required. Yet some of the cases,holding the accused must be guilty of gross negligence, say that suchgross negligence will supply the criminal intent.1V Such a result showsthe confusion in which a court finds itself in trying to separate grossnegligence and criminal intent.It is often said that the negligence or carelessness must be sogross as to imply a criminal intent, but the question still remains asto when it reaches that point, and no rule by which to test it has beenor can be given.A man is responsible for the natural consequences of his criminalacts, although from ignorance, carelessness, or neglect, he does not takeprecautionary measures to prevent those consequences.So long as the crime resulted from the neglect of a plain legalduty imposed by law or contract upon the defendant personally, is itfair to the other members of society to say that the one in breach ofhis legal duty must have shown a "wanton" or "reckless" disregard forthe safety of others? Such a position is untenable and is withoutmerit.It might well be argued that Kentucky is in accord with themajority in saying that a person may be guilty of an offense resultingfrom negligence if it was produced by such carelessness and reckless-ness on his part as to indicate a disregard for the safety of others.5However, the Kentucky courts say that the carelessness or recklessness,necessary to convert the accident from an innocent into a guilty one,must occur under such circumstances as to indicate a disregard onthe part of the perpetrator for the safety of others. It is submittedthat such a qualification could be complied with more logically byshowing that the perpetrator did not exercise that degree of carewhich an ordinarily prudent person would have used under the sameor similar circumstances.13 Bishop Crim. Law (6th ed. 1923), See. 314, p. 178.State v. Irvine, 126 La. 534, 52 So. 667 (1910).Pray v. Commonwealth, 181 Ky. 396, 205 S. W. 404 (1918).200 KENTUCKY LAW JOURNALConclusionIn order to reach more just decisions, and in order to facilitatepresent day litigation in the criminal courts, certainly there can be noharm done in incorporating into the criminal law certain standardsand measurements as they exist in the civil law. However, the courtshould take cognizance of the fact that it is dealing with a crime andnot merely a civil action between two or more individuals. Thestandard of care proposed in this paper will cover any given sort ofsituation and make it possible for the court to instruct the jury fairlyand clearly, and at the same time make it possible for the jury toreach a just verdict after the case has been presented to them.The growth of criminal law in this country has been more re-tarded than that of any other branch of the law. It is time to call ahalt to the old guesswork manner of construing what the law is, andstart applying sound principles based upon the facts of the case as itwas presented before the court.W. S. JLTT, JR.

Criminal Negligence--Standard of Care Necessary

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Criminal Negligence--Standard of Care Necessary

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