Duren v. State

• Decision Date: 14 January 1954
• Docket Number: No. 69,69
• Citation: 203 Md. 584,102 A.2d 277
• Parties: DUREN v. STATE.
• Court: Maryland Court of Appeals

Page 584

203 Md. 584

102 A.2d 277

DUREN v. STATE.

No. 69.

Court of Appeals of Maryland.

Jan. 14, 1954.

Gordon H. Levy, Baltimore, for appellant.

W. Giles Parker, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., Baltimore City, and Julius A. Romano, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant was tried in the Criminal Court of Baltimore City on the charge of manslaughter by automobile. The Court, sitting without a jury, found him guilty, and from the judgment and sentence which followed, he appeals on the formal ground that the evidence was insufficient to sustain the conviction, as a matter of law, relying, however, in substance, on a version of the occurrence different from the State's and on the lack of weight of the evidence.

Neusbaum v. State, 156 Md. 149, 143 A. 872, held that gross and criminal negligence in the operation of a motor vehicle resulting in the death of the victim, was involuntary manslaughter at common law. This was in 1928. Thirteen years later, the Legislature enacted the statute now codified as Section 455 of Article 27 of the Code of 1951, which provides that: 'Every person causing the death of another as the result of the driving, operation or control of an automobile, * * * or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as 'manslaughter by automobile * * *."

The Court of Appeals of New York in a well reasoned and documented opinion, reported as People v. Angelo, 246 N.Y. 451, 159 N.E. 394, 395, dealt with a statute of that State similar to Maryland's manslaughter by automobile statute, and the effect on its interpretation of the common law understanding of negligence which amounts to crime. It was there said that: '* * * at least as early as 1664 the distinction is made between negligence so great as to be blameworthy and, therefore, deserving punishment, and the slight degree of negligence that would not justify a criminal charge.' The opinion then cites a number of old cases and adds: 'They use such words as 'gross,' 'reckless,' 'culpable.' Consistently they assert, expressly or by implication, that something more is required than the bare negligence that might be sufficient to support a civil action. They hold that it is for the jury to decide, in view of all the circumstances, whether the act was of such a character as to be worthy of punishment.' The court added that this rule, as part of the common law, became the law of New York and the Legislature must be deemed to have used the word 'culpable' in the statute: '* * * in the same sense as it had been used for centuries--as the equivalent of 'criminal,' 'reckless,' 'gross,' such negligence as it is worthy of punishment.' It means, said the Court: '* * * disregard of the consequences which may ensue from the act, and indifference to the rights of others.'

The Maryland statute has been given the same interpretation as that of New York. In Hughes v. State, 198 Md. 424, 84 A.2d 419, this Court held that the Legislature had carried over into Section 455 of Article 27 of the Code, 1951 Edition, the common law concept and meaning of gross negligence. In State of Maryland v. Chapman, D.C., 101 F.Supp. 335, 341, Judge Chesnut in the United States District Court for the District of Maryland, declared that proof of simple negligence will not support a conviction of manslaughter but that there must be proven gross negligence, which must be '* * * such that it amounted to a 'wanton or reckless disregard for human life." This Court, in Hughes v. State, supra [198 Md. 424, 84 A.2d 422], said that Judge Chesnut's statement of the law '* * * seems to be the test to be applied under the manslaughter statute'. See also Allison v. State, Md., 98 A.2d 273, 275.

The State produced testimony at the trial which showed that the defendant was driving a Cadillac automobile north on Fremont Avenue in the City of Baltimore at a speed estimated by an experienced driver to have been at least sixty miles an hour, at about 7:00 o'clock on a Sunday evening in December. As the car approached the intersection of Fremont Avenue and Laurens Street a heavily congested residential and business area, the man who was killed walked west from the east side of Fremont Avenue, into the street from between the second and third of three cars parked in a line along the east curb of Fremont Avenue at a point not precisely located, but from police measurements and the testimony of eyewitnesses, necessarily from sixty to seventy-seven feet north of the north curb line of Laurens Street. He was struck by the right front bumper of the appellant's car and hurled in the air with such force and in such a manner that he landed on the trunk of the third parked car. The investigating Police Officer found four skid marks, admittedly made by the tires of the appellant's car, starting twelve feet south of the north curb line of Laurens Street and continuing uninterruptedly northward, with occasional zig-zags for a distance of one hundred forty-four feet. The streets were dry.

The State contends that it was culpable, reckless, gross and so, criminal negligence, to have operated an automobile on a City street in a populous residential and business area at a time when citizens afoot and in cars were likely to be on the street, at a speed great enough for the car, after it had skidded, with the brakes holding on all four wheels, seventy-two feet at a minimum to eighty-nine feet at a maximum, to still be going fast enough to throw a human body high and far enough to cause it to land on the trunk of a car a number of feet away and then to continue to skid as far again, the trial court agreed and found that the car was operated in a dangerous and wanton manner at a grossly excessive rate of speed and that this was an efficient cause of the death of the victim. As Judge Chesnut said in the Chapman case, to which we have referred, whether there is gross negligence in any occurrence must be determined: '* * * on the consideration of all the facts of the particular case * * *.' Again, he says the test is: '* * * whether the conduct of the defendant, considering all the factors of the case, was such that it amounted to a 'wanton or reckless disregard for human life."

The Court of Appeals of New York in the Angelo case, supra, in speaking of gross negligence, said it means: '* * * disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment. Ordinarily for the judgment of the jury, as is the question whether negligence exists at all.' When a case is tried by a court without a jury, this Court on appeal, under Rule 7(c) of the Criminal Rules of Practice and Procedure, may review both the law and the evidence to determine whether the evidence is sufficient to sustain a conviction but the verdict of the trial court shall not be set aside on the evidence unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Hughes v. State, supra. We cannot say that the trial court was clearly wrong when it found that the appellant was driving on a City street at a speed so grossly excessive that his car was beyond effective control and that this conduct, under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others, and so was a wanton and reckless disregard for human life.

Long before automobiles, with their power and speed measured in terms of the number of horses theoretically under their hoods, the Courts held that allowing a horse drawn vehicle to proceed at an excessive or immoderate speed could constitute criminal negligence in a given environment. A number of the early cases are collected in People v. McMurchy, 249 Mich. 147, 228 N.W. 723. In that opinion the Supreme Court of Michigan was considering the constitutionality of an act similar to Section 455 of Article 27 of the Code. One of the provisions of the act was that the operation of a vehicle at an immoderate rate of speed which caused the death of another, was negligent homicide. The Court held this a valid exercise of legislative power, relying on the common law concept of involuntary manslaughter. One of the authorities cited was Rex v. Walker, 1 Carrington & Payne 191,

Page 320

(1824). There the defendant was driving a cart with two horses which were cantering. The pedestrian who was struck was drunk and could not get out of the way because of that fact and the rapid pace of the horses. The Court, in its charge, laid down the following: 'That if a man drive a cart at an unusually rapid pace, whereby a person is killed, though he called repeatedly to such person to get out of the way; if from the rapidity of the driving, or any other cause, the person cannot get out of the way [in] time enough, but is killed, the driver is in law guilty of manslaughter, * * *' Another case relied on was Rex v. Timmons, 7 Carrington & Payne 728,

Page 499

(1836). The accused was driving an omnibus which was racing with another. The charge to the jury was that they must be satisfied: '* * * that the prisoner was driving in such a negligent manner that by reason of his gross negligence, he had lost command of his horses?'

It is plain that the environment in which speed is indulged must determine whether it does or does not show gross negligence at a given time. Speed in the open country on a four lane highway may be very high and not constitute negligence. A much lower rate of speed in a city street may constitute gross negligence. This, too, was the law long before...