Commonwealth v. Aurick

• Citation: 342 Pa. 282,19 A.2d 920
• Decision Date: 12 May 1941
• Docket Number: 143
• Parties: Commonwealth v. Aurick, Appellant
• Court: United States State Supreme Court of Pennsylvania

19 A.2d 920

342 Pa. 282

Commonwealth v. Aurick, Appellant

No. 143

Supreme Court of Pennsylvania

May 12, 1941

Argued April 21, 1941.

Appeal, No. 143, Jan. T., 1941, from judgment of Superior Court, Oct. T., 1940, No. 233, affirming judgment of Q.S Phila. Co., Feb. Sessions, 1939, No. 711, in case of Commonwealth v. George W. Aurick, Jr. Judgment reversed.

Indictment charging defendant with involuntary manslaughter, assault and battery by automobile and failure to stop and render assistance. Before SMITH, P.J.

The facts are stated in the opinion of the Supreme Court and also in the opinion of the Superior Court, reported in 142 Pa.Super. 364.

Verdict of guilty of involuntary manslaughter and judgment and sentence thereon. Defendant appealed to the Superior Court which affirmed the judgment of the lower court. An appeal was allowed to the Supreme Court.

Errors assigned, among others, related to the dismissal by the Superior Court of various assignments of error.

The first assignment of error is sustained. The judgment is reversed and a new trial ordered.

Thomas D. McBride, for appellant.

James W. Tracey, Jr., Assistant District Attorney, with him Charles F. Kelley, District Attorney, for appellee.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN and PATTERSON, JJ.

OPINION

MR. MAXEY, JUSTICE.

This is an appeal from a judgment and sentence upon a conviction for involuntary manslaughter.

On January 10, 1939, at 6:40 p.m., appellant was operating a Ford automobile in a southerly direction on Ridge Avenue at or near the intersection of that avenue with Rector Street, which enters Ridge Avenue from the east but which does not continue westward of Ridge Avenue. His automobile struck a young woman named Philomena Wilson while she was crossing Ridge Avenue, killing her instantly. The Commonwealth produced testimony that the defendant's car was being driven at about 60 miles an hour. Defendant was placed on trial on April 26, 1939, and on the following day was found guilty of the charge of involuntary manslaughter and was sentenced to undergo imprisonment in the Philadelphia County Prison for a term of 18 months and to pay a fine of $25.00. Upon appealing to the Superior Court a new trial was granted (see 138 Pa.Super. 180, 10 A.2d 22). Defendant was again placed on trial on June 26, 1940, and was found guilty of involuntary manslaughter. The verdict contained a recommendation of mercy. Defendant was then sentenced to undergo imprisonment in the Philadelphia County Prison for a term of one year. Upon appeal to the Superior Court, the judgment was affirmed. An appeal was thereupon allowed to this court.

The first assignment of error is as follows: "The Superior Court erred in overruling appellant's fourth assignment of error. This assignment was as follows: 'The court below erred when in defining the crime of involuntary manslaughter the jury were instructed that it is committed by a lawful act which merely approximates unlawfulness, as follows: "This defendant is charged with involuntary manslaughter, and the definition of involuntary manslaughter, members of the jury, is where it plainly appears that neither death nor great bodily harm was intended, but that the death was caused accidentally by some unlawful act not amounting to a felony, or by the commission of a lawful act, not merely carelessness, but so rash and reckless as to approximate unlawfulness."'"

On this phase of the case the Superior Court said: "As to the second question, appellant recognizes that his complaint of the use of the word 'approximate' in the charge of the court was fully argued on the first appeal to this court, and appellant's contention dismissed. The trial court followed Commonwealth v. Gill, 120 Pa.Super. 22, 182 A. 103, and Commonwealth v. Matteo, 130 Pa.Super. 524, 197 A. 787. Careless, negligent, and reckless conduct is not necessarily an unlawful act, that is, an act forbidden by law, but it may under certain circumstances approximate unlawfulness so that in the mind of the law it amounts to an unlawful act. However, death caused by, or resulting as a consequence of, recklessly driving a motor vehicle is involuntary manslaughter."

The basis of the present appeal is the use of the word "approximate" in the excerpt quoted from the instructions. The verb "approximate" literally means to "come near". Webster's New International Dictionary, 2d ed., defines it as follows: "to advance near". The instruction complained of amounted to this: If the death of the victim named in the indictment was caused by the defendant's commission of an act so rash and reckless as to come near to being unlawful, he could be convicted of involuntary manslaughter. This was error. It fell short of what the Commonwealth charged in the indictment and it lowered the standard of proof legally required of the Commonwealth in order to warrant a conviction of the charge made. When recklessness of conduct causes another's death, it must in order to sustain a charge of involuntary manslaughter amount to unlawfulness of conduct. "An unlawful act such as constitutes an element of involuntary manslaughter is a thing which one has no right to do"; quoted in Warren on Homicide, Vol. 1, sec. 86, p. 420, from State v. Woods (Del.) 77 A. 490. No person is guilty of involuntary manslaughter unless he kills another by acting unlawfully. It is immaterial whether the unlawful act which is an essential of involuntary manslaughter was unlawful in its inception as, e.g., discharging a deadly weapon into a crowded street, or became unlawful after it was begun, as, e.g., driving a car in a public street and so accelerating its speed as to make it naturally tend to cause death or great bodily harm to persons in that street. The first example is of an inherently unlawful act; the second is of an act (driving a car) not unlawful in itself but done without due caution, i.e., in an unlawful manner. In Com. v. Godshalk, 76 Pa.Super. 500, that court, in an opinion by President Judge ORLADY, said at page 503: "Reckless driving upon the highway is not the exercise of reasonable or ordinary care in the use of it, and is a failure to perform a duty imposed by law."

The Act of March 31, 1860, P.L. 382, sec. 79, amended by the Act of April 11, 1929, P.L. 513, sec. 1, 18 PS sec. 2226, provides: "If any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, it shall and may be lawful for the district attorney, with the leave of the court, to waive the felony and to proceed against and charge such person with a misdemeanor," etc. In other words, the very essence of the crime of involuntary manslaughter is the death of a human being "in consequence of an unlawful act". The Act of April 28, 1871, P.L. 244, sec. 1, 19 PS sec. 352, provides: "In any indictment for involuntary manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for involuntary manslaughter to charge that the defendant did unlawfully kill and slay the deceased."

If the contention of the Commonwealth is correct, it would be sufficient in any indictment for involuntary manslaughter to charge that the defendant did "almost unlawfully kill and slay the deceased." The Commonwealth's contention is not correct, for he whose acts merely approximate unlawfulness is doing nothing criminal and for such acts he is not subject to indictment. To make out a case of involuntary manslaughter, it must be proved that the death of a human being was caused by another's unlawful act. It is immaterial whether the unlawfulness of the act is inherent in its very nature and purpose or arises only from the manner of performing an act which in its inception and aims is not unlawful.

The law nowhere countenances careless, negligent and reckless conduct when that conduct menaces the physical well-being of others. Such conduct is therefore unlawful. It may not be unlawful if it menaces only the well-being of...