Commonwealth v. Lowans.

• Court: Pennsylvania District and County Court
• Writing for the Court: Hargest
• Citation: 21D.&C.66
• Docket Number: January term, 1934, no. 4.
• Decision Date: 09 May 1934
• Parties: Commonwealth v. Lowans.

21 D.&C. 66

Commonwealth v. Lowans.

January term, 1934, no. 4.

The Judicial Districts of Pennsylvania.

May 9, 1934.

Criminal law — Involuntary manslaughter — Criminal Code of 1860, sec. 79 — Operation of automobile without driver's license — Malum prohibitum — Absence of negligence — Causal connection with death — Necessity to conviction.

1. No conviction may be had, in a prosecution for involuntary manslaughter under section 79 of the Criminal Code of 1860, as amended by the Act of April 11, 1929, P.L. 573, where defendant, driving an automobile without an operator's license, while proceeding at a reasonable rate of speed and without negligence, struck and killed a child who ran across the street and into the path of the vehicle.

2. Section 79 of the Criminal Code of 1860, as amended, relates only to homicide occurring as the proximate consequence of defendant's unlawful act, at least where that act is malum prohibitum and not malum in se.

Indictment for involuntary manslaughter. O. & T. of Dauphin County.

Karl E. Richards, district attorney, and E. Leroy Keen, assistant district attorney, for Commonwealth.

Walter H. Compton, for defendant.

HARGEST, P.J., May 9, 1934.

The defendant was indicted for involuntary manslaughter. He entered a plea of nolo contendere. The testimony was such that the court cannot find him guilty of the negligent operation of the automobile, it appearing clearly that the deceased child, while rolling an inflated inner tube and running across the street, ran into the path of the automobile which was not proceeding at an unreasonable speed.

However, the defendant had no operator's license. Is it involuntary manslaughter where one operating a motor vehicle without an operator's license causes the death of another person, and the operation is without other negligence?

Section 79 of the Act of March 31, 1860, P.L. 382, as amended by the Act of April 11, 1929, P.L. 513, provides, in part:

"If any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act . . . such person, on conviction, shall be sentenced. . .".

In 4 Bl. Com. (15 ed.) 192, distinguishing between excusable homicide and involuntary manslaughter, it is declared that the former "always happens in consequence of a lawful act, but this species of manslaughter [involuntary] in consequence of an unlawful one."

In Commonwealth v. Mayberry, 290 Pa. 195, 198, involuntary manslaughter is defined as follows:

". . . `the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty': 29 Corpus Juris, page 1148; Wharton on Homicide (3d ed.) section 211; Com. v. Micuso, 273 Pa. 474; Com. v. Gable, 7 S. & R. 423; 13 R.C.L. page 784."

This definition liberally construed, would include the operation of a motor vehicle by an unlicensed operator. But the statute provides that the act is involuntary manslaughter when "happening in consequence of an unlawful act". This is also Blackstone's definition. The precise question before us is whether the unlawful act must be the immediate or proximate cause of the death. There is no Pennsylvania appellate court case on this subject.

In Commonwealth v. Tole, 25 Dist. R. 957, the defendant was driving without a license and in an intoxicated condition, and he was held to be properly convicted. In that case, the intoxicated condition may have been the direct and proximate cause of the injury. There seems to be nothing in the case to indicate that the conviction would have been sustained if the element of intoxication had not been present.

In Commonwealth v. McCawley, 46 Pa. C.C. 306, and in Commonwealth v. Beamesderfer, 39 Lanc. 418, it is held that where the killing was done while the defendant was doing an unlawful act, though not the proximate cause, the offense was made out. In the McCawley case, the defendant accidentally shot a companion while hunting without having a license, and in the Beamesderfer case the defendant was operating an automobile with license plates on it that had been issued for another automobile. However, in the case of Commonwealth v. Smith, sess., 1933 no. 4, in this court, Judge Wickersham adjudged the defendant not guilty, on a plea of nolo contendere, without giving any reasons, the only evidence of illegality being the failure to have a license.

A criminal statute must be strictly construed. The essence of the crime of involuntary manslaughter, at least insofar as it emanates from an illegal act on the part of the...