Moffit, Robert C.

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University of Kentucky

Kentucky Law JournalVolume 40 | Issue 2 Article 121951Negligent Manslaughter in Kentucky--The Rule inMarye v. CommonwealthRobert C. MoffitUniversity 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 CitationMoffit, Robert C. (1951) "Negligent Manslaughter in Kentucky--The Rule in Marye v. Commonwealth," Kentucky Law Journal: Vol. 40: Iss. 2 , Article 12.Available at: https://uknowledge.uky.edu/klj/vol40/iss2/12RECENT CASESperhaps the time has come for the legislature to amend the criminalcode to provide, like the Federal Rules of Criminal Procedure, that:"If the defendant appears in court without counsel, thecourt shall advise him of his right to counsel and assign counsel torepresent him at every stage of the proceedings unless he elects toproceed without counsel or is able to obtain counsel."'GEORGE R. CREEDLENEGLIGENT MANSLAUGHTER IN KENTUCKY THE RULE INMARYE v COMMONWEALTH'What degree of negligence is reqmred in Kentucky for a convictionof manslaughter? This question is of particular importance in Ken-tucky since the statutes set out the punishment for voluntary man-slaughter but do not attempt to define the elements of the crime.2Involuntary manslaughter remains a common law crnme 3 with thepunishment being fixed by a general statute.4In a case decided in 1919,5 where the homicide resulted from thenegligent operation of an automobile, the tort standard of care wasapplied and on a finding of ordinary negligence the defendant wasconvicted of involuntary manslaughter. Seven years later in a similarcase involving a homicide resulting from the negligent operation ofan automobile,6 the court said that failure to exercise ordinary carein the driving of an automobile was sufficient negligence to constitutethe crime of involuntary manslaughter. These cases were followed inKentucky, and the law seemed to be settled that ordinary negligencein the operation of an automobile was sufficient to authorize a con-viction of involuntary manslaughter.7As one might expect, since the court had resorted to the rule thatordinary negligence was sufficient to constitute involuntary man-slaughter, when it was later confronted with a case involving a greaterdegree of negligence and consequently deserving a greater degree ofpunishment, the natural solution was to convict the guilty party of- FED. R. Crm. P. 44.1240 S.W 2d 852 (Ky. 1951).Ky. REv. STAT. sec. 435.020 (1948).3 Sikes v. Com., 304 Ky. 429, 200 S.W 2d 956 (1947).'Ky. Rmv. STAT. see. 431.075 (1950).'Held v. Com., 183 Ky. 209, 208 S.W 772 (1919).'Jones v. Com., 213 Kv. 356, 281 S.W 164 (1926).'Lewis v. Com., 301 Ky. 268, 191 S.W 2d 416 (1945); Lowe v. Com., 298Ky. 7, 181 S.W 2d 409 (J944); Com. v. Mullins, 296 Ky. 190, 176 S.W 2d 403(1943).KENTUCKY LAw JOURNALvoluntary manslaughter. That is exactly what was done. Variousphrases were used to describe this higher degree of negligence re-quired for a conviction of voluntary manslaughter,-such phrases as"reckless conduct",8 "reckless or gross" 9 "reckless disregard",1 ° "reck-less and wanton",i "grossly careless",12 and "gross negligence" 13Even though various phrases were used, it appears that involuntarymanslaughter could be committed by ordinary civil negligence whileany negligence of a higher degree would authorize a conviction ofvoluntary manslaughter.In the recent case of Marye v Commonwealth'4 the court wasconfronted with the extreme harshness of the rule as it applies toinvoluntary manslaughter. In that case two homicides resulted fromthe negligent driving of an automobile by the defendant who wasconvicted of involuntary manslaughter on a finding of ordinary civilnegligence. On appeal the Kentucky Court of Appeals in a well writ-ten opinion by Judge Combs, although recognizing the rule estab-lished by prior decisions, expressly overruled these cases and heldthat ordinary negligence, though sufficient in a civil suit, was not suf-ficient for a criminal prosecution; that in order to convict one of in-voluntary manslaughter there must be a finding of "gross negligence."This case which places Kentucky in accord with the great weightof authority on this question 15 thus becomes one of the landmarkdecisions in the state. It not only changes the law as to the negligencerequired for involuntary manslaughter but will also have repercus-sions as to the negligence required for voluntary manslaughter. Indiscussing the relationship between voluntary and involuntary man-slaughter Judge Combs said:"It is our view that instructions in voluntary manslaughtercases should require a finding of reckless and wanton conduct, andinstructions in involuntary manslatighter cases should require a findingof gross negligence in order to adthorize a conviction. We think thatif the terms gross negligence and reckless and wanton conduct' arecorrectly defined in the instructions, the jury will have a practicalworking basis upon which to render an intelligent verdict.""oIt is respectfully submitted that this paragraph is the weak spot'Rmns v. Com., 226 Ky. 173, 10 S.W 2d 643 (1928).'Thacker v. Com., 263 Ky. 97, 91 S.W 2d 998 (1936)."Boggs v. Com., 285 Ky. 558, 148 S.W 2d 703 (1941)."Haupe v. Com., 234 Ky. 27, 27 S.W 2d 394 (1930).'2 Hill v. Com., 239 Ky. 646, 40 S.W 2d 261 (1931)." Newcomb v. Com., 276 Ky. 362, 124 S.W 2d 486 (1939).u Supra, note 1.' MILLER, CRIIUNAL LAw 287 (1934); MORELAND, RATIONALE OF CIinNALNEGLIGENCE 16 (1944); 65 Con. JUR. SECUN. 1270 (1950); 61 Con. JUR. SECUN.774 (1949); 40 Con. Jur. SECUN. 924 (1944).16240 S.W 2d 852, 855 (Ky. 1951).RECENT CASESin tis important and well reasoned opinion. By way of dictum thecourt approved the cases holding voluntary manslaughter could becommitted by a high degree of negligence. It may well be doubtedwhether negligence, however great, can ever amount to a voluntaryact.17 Ballentine defines voluntary manslaughter as an intentionalkilling of a human being in sudden heat and passion without maliceand under reasonable provocation.iS May in his work on criminal lawstates that it is voluntary manslaughter if it was committed with areal design to kill."' The Kentucky court in cases involving voluntarymanslaughter by negligence2 0 reasons that in such situations one mustbe held to intend the natural consequences of his act and by thismethod reaches the conclusion that such negligent acts are voluntaryIf the Kentucky courts are going to continue to use this fiction it ishard to see how they can make voluntary manslaughter out of "reck-less and wanton conduct" and at the same time refuse to apply thesame reasoning to "gross negligence" and thus make that voluntarymanslaughter also. One can readily see the uncertain and precarioussituation such a doctrine would lead to. The important question is,Is such a doctrine sound?The court states in the paragraph above quoted that they believethat if the terms "gross negligence" and "reckless and wanton conduct"are correctly defined they will serve as a practical working basis todifferentiate voluntary from involuntary manslaughter. Is this areasonable ground for distinguishing them? It is submitted that it isnot. Here are three words, "gross" "reckless", and "wanton." "Gross"and "reckless" have been so universally used as synonyms, even bythe Kentucky court itself, that few citations are necessary to showtheir similarity of connotation,21 yet the court says one denotes an actwhich is involuntary and the other an act which will be held to bevoluntary The court, continuing its discussion, not only attempts todistinguish between "gross" and "recklTes" but also uses the words"reckless" and "wanton" synonymously Professor Moreland in a re-cent extended study on methods which are useful in describing crim-inal negligence came to the conclusion that wantonness, defined as" MORELAND, RATIONALE OF CRm niNAL NEGLIGENCE 37 (1944)." BALLENTINE, LAw DICTIONARY vITH PRONUNCIATIONS 1347 (1930)."'MAY, CRIMINAL LAW 272 (4th ed. 1938).="Largent v. Com., 265 Ky. 598, 97 S.W 2d 538 (1936); King v. Com., 253Ky. 775, 70 S.W 2d 667 (1934); Embry v. Com., 236 Ky. 204, 32 S.W 2d 979(1931).- Jackson v. Edwards, 144 Fla. 187, 197 So. 833 (1940); Thacker v. Com.,263 Ky. 97, 91 S.W 2d 998 (1936); Pelfrey v. Com., 247 Ky. 484, 57 S.W 2d474 (1933); La Plante v. Rousseau, 91 N.H. 330, 18 A. 2d 777 (1941); Thomasv. Southern Lumber Co., 181 S.W 2d 111 (Tex. 1944); PROssEn, TORTS 262(1941).KENTUCKY LAW JoUtnNALarrogant recklessness, 22 was one of the most satisfactory descriptionsof the state of mind required for the negligent murder 23 This is therule which has been adopted m most jurisdictions. 24 It is apparentthat "wanton conduct", which is generally defined as arrogant reck-lessness is a higher degree of negligence than "reckless conduct" andyet the court uses them as synonyms.It may be argued that m using the phrases "gross negligence" and"reckless and wanton" to distinguish between involuntary and volun-tary manslaughter the Kentucky court did not intend to use the words"reckless and wanton" as synonyms but rather as a phrase, whichwhen read in its entirity denotes the conduct which will be held to bevoluntary If tis was the intention of the court, and such an in-terpretation seems reasonable, it is submitted that the use of the words"reckless" and "wanton" conjunctively may cause substantial uncer-tainty in the application of the rule. As has been shown above,"wanton" conduct is best defined as arrogant recklessness and thus issomething much greater than "reckless" conduct. Joining the word"reckless" conjunctively to the word "wanton" can add nothing what-soever to the connotation which the word "wanton" carries by itself,for "reckless" conduct is included within, and is something less than,"wanton" conduct. Therefore in order to avoid the unnecessary con-fusion it would seem reasonable to omit the word "reckless" from thephrase. The effect of the decision m the Marye case would then be tohold "gross negligence" sufficient to authorize a conviction of invol-untary manslaughter, while "wanton" conduct would, m Kentucky,constitute voluntary manslaughter.In summarizing what has been said with respect to the Marye caseit will facilitate clarification to note briefly the main features of theabove discussion: (1) The decision is fundamentally sound m that itrequires a higher degree of negligence for a conviction of involuntarymanslaughter than is required in a civil suit. (2) The use of the phrase"gross negligence" to describe the higher degree of negligence re-qured was an unfortunate choice of language because of the vague-ness of the term. Furthermore the statement by the court to the effectthat "gross negligence" should be defined as the "failure to exerciseslight care" is subject to strong criticism. Is not the failure to exerciseslight care practically no care at all? It would seem that such a defini-tion would be much too advantageous to the defendant. (8) Thephrase "reckless and wanton" as describing the conduct which willWEBSTER s NEw INTERNATiONAL DicTONARY 2871 (2d ed. 1938).SOp. cit. supra, note 17 at 68.Op. cit. supra, note 17, 62 et. seq., and cases there cited.RECENT CASESauthorize a conviction of voluntary manslaughter is ambiguous. If thewords were intended to be used as synonyms, then the distinction be-tween that conduct and "gross negligence" is very vague and uncertainfor "reckless" and "gross" have similar connotations. Further, if thephrase was used to describe the highest degree of negligence, whichis usually described as "wanton", the word "reckless" is superfluousand misleading. (4) The court by way of dictum approved the doetrine of the wantonly negligent voluntary manslaughter, which on itsface is illogical and subject to vigorous criticism; however, much ofsuch criticism of the doctrine should be directed at the state legis-lature rather than to the courts. The legislature has by statute limitedthe punishment for all common law crimes, the punishment for whichis not provided for by statute, to a maximum imprisonment of oneyear.2 - , This statute eliminates the possibility of pumshing wantonhomicides as negligent murders m this state because of the insufficientpenalty As a result of this statute the courts are placed m the difficultposition of providing a sufficient penalty for conduct which in mostother jurisdictions would be murder.26 Is it not reasonable that thecourt would resort to the use of fictions m order to find voluntarymanslaughter so as to sufficiently punish the defendant where he isguilty of a high degree of negligence? The voluntary manslaughterstatute carries a maximum imprisonment of twenty-one years.2 7 It isobvious that the burden of clarifying the Kentucky homicide law restslargely with the state legislature. The need for statutory reform isimperative m order more successfully to execute this phase of thecriminal law of the state.281 This need is emphasized by several recentnewspaper editorials vigorously criticizing various definitions in theMarve case.2 9ROBERT C. MOFFIT'Ky. R1v. STAT. see. 431.075 (1950).' Supra, note 24.' Ky. REV. STAT. see. 435.020 (1948).' It is interesting to note for the record that on the new trial ordered in theMarye case the defendant was acquitted due to a failure to find the required degreeof negligence. Lexington Herald, October 12, 1951, 1.' See for example, the following two editorials: Lexington Leader, Nov. 13,1951, 4; Lexington Leader, Oct. 26, 1951, 4. In the latter it was said: "To obtaina conviction in an involuntary manslaughter case, the court has held, the common-wealth must prove that the defendant failed to exercise slight care in the opera-tion of his automobile. Since it would be virtually impossible for anyone to drivea motor vehicle a half-block without exercising slight care, the legislature cer-tainly owes it to the people of Kentucky to put some teeth in the law. Otherwise,traffic deaths will be legal killing."

Negligent Manslaughter in Kentucky--The Rule in Marye v. Commonwealth

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Negligent Manslaughter in Kentucky--The Rule in Marye v. Commonwealth

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