Johnson v. State

• Decision Date: 18 March 1902
• Citation: 63 N.E. 607,66 Ohio St. 59
• Parties: JOHNSON v. STATE.
• Court: Ohio Supreme Court

63 N.E. 607

66 Ohio St. 59

JOHNSON v. STATE.

Supreme Court of Ohio.

March 18, 1902

Error to circuit court, Scioto county.

Noah Johnson was convicted of manslaughter, and brings error. Reversed.

The plaintiff was indicted for the crime of manslaughter, in unlawfully killing one Emory Barrows on the 25th day of May in the year 1901. On the trial of the case under this indictment the defendant was convicted on the following, as the conceded facts: ‘ That the defendant, Noah Johnson who is a young man about twenty-three years of age, and an expert bicycle rider, in the county of Scioto and state of Ohio, on the 25th day of May, 1901, as it was growing dusk in the evening, rode a bicycle, known as a ‘ racing machine,’ noiselessly down the main street of a village containing about 1,200 inhabitants, and over one of its most prominent street crossings, at a speed of about twenty miles per hour. That the evening was fair, and many people were walking up and down said street, and over its crossings. That defendant was leaning forward, and over his bicycle, the handle bars being dropped, and was in the position commonly used in riding in bicycle races. There was no bell attached to his bicycle, no alarm was given by defendant, and he could have seen ahead of him. While riding over the aforesaid street crossing at said rate of speed, the defendant collided with Emory L. Barrows, who was at the time walking, at the usual and customary place, from one corner of said crossing over the street upon which said defendant was riding, to another corner, the force of which collision lifted said Emory L. Barrows from the ground, hurled him a distance of about fifteen feet through the air, and fractured and crushed his skull in several places, thereby causing his death. The decedent and the defendant saw each other an instant before the collision, and each tried to avoid it. The defendant did not intend to, and did not purposely, collide with the decedent, and there never was any personal feeling existing between them whatever.' Exception was taken by the defendant to the following portion of the charge of the court to the jury, bearing on the legal effect of the facts stated ‘ An act lawful in itself when properly performed may be performed so improperly (that is, so recklessly and wantonly) as to render it unlawful, and in such case, if the death of another result directly and proximately therefrom it is manslaughter; the wanton recklessness or gross negligence in such a case supplying the place of direct criminal intent. But inferences of guilt are not to be drawn from remote causes, and the law does not hold a person criminally responsible for slight negligence, nor even for a mere failure to observe or to exercise ordinary care and diligence, but only for gross negligence, in the sense that I have above defined that term to you. In other words, to make it entirely plain to you, the carelessness or negligence with which an act must be done in order to render the death of another, resulting therefrom, criminal homicide or manslaughter, must be gross, and such as an ordinarily reasonable and prudent person (that is, a person of ordinary discretion and judgment) might, and reasonably ought to foresee and anticipate would endanger the lives and safety of others, and be likely to result in fatal injuries to others.’ A general exception was saved to the charge. A verdict of guilty was rendered, and the defendant was sentenced accordingly. He prosecuted error in the circuit court, where the judgment of the common pleas was affirmed, and he prosecutes error in this court to reverse the judgments of both the lower courts.

On a prosecution for manslaughter, the evidence showed that defendant, while riding on a bicycle at a high rate, ran over a boy in the public street, killing him. Defendant was indicted, under Rev.St. § 6811 (See Gen.Code, § 12404), for manslaughter for unintentionally killing another while in the commission of some unlawful act. There was no ordinance of the village in which the killing occurred regulating the speed or manner of riding bicycles in the street. Held, that it was necessary to show that the alleged unlawful act was prohibited by law, and it was not sufficient to show that such act was a crime at common law, or one of gross or culpable negligence.

Syllabus by the Court

In a prosecution for manslaughter, wherein the state relies for conviction on the ground that the deceased was killed unintentionally while the slayer was in the commissioner of an unlawful act, it must be shown that the alleged unlawful act is prohibited by law; and it is not sufficient to establish that such act so engaged in was a crime at common law, or one of gross and culpable negligence.

Thomas C. Beatty, for plaintiff in error.

Henry Bannon, for the State.

PRICE, J. (after stating the facts).

If the conceded facts are sufficient, and the charge of the trial court sound law to govern the jury in deciding on such facts, the plaintiff in error may have been properly punished for very reprehensible conduct. That part of the charge contained in the statement of the case, as well as a subsequent paragraph which we will notice, was equivalent to directing a verdict of conviction, inasmuch as there was no dispute as to the facts. There was a verdict of conviction, and a sentence upon the verdict, which the circuit court sustained, and thereby must have held that the charge correctly stated the law of the case. The importance of what is presented as an apparently new doctrine in this state, as well as respect for the opinions of both the lower courts, has been sufficient reason for giving the questions involved a careful consideration.

The indictment for manslaughter in this case is in the short form authorized by section 7217 of the Revised Statutes, and it charges that ‘ Noah Johnson * * * on the 25th day of May in the year of our Lord 1901, in the county of Scioto, did unlawfully kill one Emory Barrows then and there being, contrary to the form of the statute,’ etc. Prior to the codification of the criminal statutes manslaughter was thus defined: ‘ That if any person shall unlawfully kill another without malice, either upon a sudden quarrel, or, unintentionally, while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter, and on conviction thereof, be punished,’ etc. 1 Swan & C. Ohio St. 403. The statute on the subject now is section 6811, Rev. St., which reads, ‘ Whoever unlawfully kills another, except as provided in the last three sections is guilty of manslaughter, and shall be imprisoned,’ etc. The preceding sections define murder in the first and second degrees. But the present section 6811 is not different in substance and meaning from the original section above quoted, and, to ascertain the elements of the crime of manslaughter, we look to the original as it stood before codification or revision. Therefore, to convict of manslaughter, it is incumbent upon the state to establish that the killing was done ‘ either upon a sudden quarrel, or, unintentionally while the slayer was [is] in the commission of some unlawful act.’ It is clear that, from the facts and the instructions given the jury, Barrows was not killed by Johnson in a quarrel, nor was the killing intentional. Hence the latter clause of the definition of the crime is the one to which our investigation should be confined. The state was required to show that, while the killing was unintentional, it was done by Johnson while he was in the commission of some unlawful act; and the question arises whether the negligent act or acts of the slayer, though no beach of any law, may be sufficient to constitute the unlawful act designated in the statute. Or, is the state required to show that he was in the commission of an act prohibited by law? At the time of this homicide there was even no ordinance of the village of Scioto regulating the speed or manner of riding bicycles upon its streets. None appears in the record, and we therefore assume there was no such ordinance. And it is not claimed that there was any statute then in force on that subject. What, then, is the proper construction of the clause ‘ while in commission of some unlawful act’ ? The construction which prevailed in the lower courts is found again in a portion of the charge which we quote as the final admonition to the jury: ‘ Now, gentlemen, apply these principles to the case, and determine from the evidence introduced upon the trial whether the defendant, Noah Johnson, at the...