Neusbaum v. State

• Decision Date: 07 December 1928
• Docket Number: 32.
• Citation: 143 A. 872,156 Md. 149
• Parties: NEUSBAUM v. STATE.
• Court: Maryland Court of Appeals

143 A. 872

156 Md. 149

NEUSBAUM v. STATE.

No. 32.

Court of Appeals of Maryland

December 7, 1928

Appeal from Criminal Court of Baltimore City; George A. Solter Judge.

Lloyd Neusbaum was convicted of manslaughter, and he appeals. Reversed.

Urner J., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Jere J. Santry, of Baltimore, for appellant.

J. Hubner Rice, Asst. Atty Gen., and Wm. H. Maynard, Asst. State's Atty., of Baltimore (Thomas H. Robinson, Atty. Gen., and Herbert R. O'Conor, State's Atty., of Baltimore), for the State.

OFFUTT J.

Lloyd Neusbaum was indicted, tried, and convicted, of the crime of manslaughter in the criminal court of Baltimore city, and upon his conviction sentenced to 30 days in jail. From that judgment he has appealed.

The record shows that about 11:30 o'clock on the night of December 7, 1927, William Powell, while in the act of crossing Ostend street at a point near Cleveland, in Baltimore city, was struck and killed by an automobile which was being rapidly driven "down" that street. The night was rainy, the street surface was slippery, and it was hard to "observe anything." The driver of the automobile did not stop, but proceeded East on Cleveland street to Cross street, turned north on that street, and escaped. For some reason not disclosed by the record, the police suspected that Neusbaum was driving the machine at the time of the collision, and he was arrested, charged with running Powell down, and subsequently indicted for manslaughter on the theory that Powell had been killed as a result of Neusbaum's criminal negligence in the operation of the car which struck him.

The indictment was filed on December 23d, and on the 10th of the following January Neusbaum demanded the particulars of the indictment, and on January 13th he demurred to it. On January the 16th the court granted his demand for the particulars of the indictment, but overruled his demurrer.

The bill of particulars appears to have been filed at or about the time that the case was called for trial, and defendant asserts in his brief that he asked for a postponement, which the court refused. He then demurred to the bill of particulars, and, after the demurrer was overruled, he filed the general issue plea to the indictment and the case proceeded to trial. He elected to be tried before a jury, and, during the process of selecting the jury, the assistant state's attorney, in the presence of certain jurors who had been accepted as members of the special panel, speaking to others who were waiting to be examined on their voir dire, said, referring to the defendant and another jointly indicted with him, "These men are hit and run drivers." The defendant objected to that remark, and moved that a juror be withdrawn and the case continued. That motion was denied, and the examination of the jurors on their voir dire was resumed, and that ruling is the subject of the first exception. But, before the panel was completed, the state amended its bill of particulars, and the defendant again asked for a continuance which was refused. The court then ordered a rearraignment of the defendant and offered him the "right to strike a new jury although the present panel has not been sworn or completed." Counsel for the defense declined the offer, and announced that "the eleven jurors previously examined and accepted were satisfactory to the defense." The defendant was then rearraigned, a plea of not guilty entered, and the trial proceeded.

During the course of it, the defendant reserved ten exceptions referring to rulings on questions of evidence, and those rulings, together with the ruling on defendant's motion to discharge the jury and continue the case because of the statement of the assistant state's attorney referred to above, and the rulings of the court on the demurrers to the indictment are presented by the appeal for review in this court.

The indictment is in the following form: "The Jurors of the State of Maryland, for the body of the City of Baltimore do on their oath present that Jerry Jones and Lloyd Neusbaum late of said City, on the seventh day of December, in the year of our Lord nineteen hundred and twenty seven at the City aforesaid feloniously and negligently did kill and slay William Powell, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State."

The only difference between that form and the form prescribed by section 563 of article 27, Code, is that it adds to the word "feloniously," found in the Code form, the word "negligently." The demurrer to it involved these propositions: (1) That it shows a misjoinder of defendants; (2) that it fails to charge any definite duty upon either defendant and fails to notify either of them of the particular act of negligence charged against them; (3) that it charges them with an illegal measure of care and diligence; and (4) that the indictment "charges upon the defendants a criminal responsibility for the alleged commission of a joint or common wrong, but does not charge that there was an exclusive duty upon any one of the defendants in respect to the happening of the accident."

The first objection may be dismissed without further comment than this, that the indictment does charge both defendants with the joint commission of a single unlawful act, to wit, the felonious and negligent killing of a human being, and, since such act could be and was alleged to be the joint act of two persons, it was not error to join them in the same indictment. 1 Whart. Cr. Proc. par. 351.

The other objections considered together amount to no more than this, that the indictment fails to identify and describe the offense charged against the defendants with such precision and particularity as would apprise them of the specific crime of which they were accused, and that therefore it was in violation of article 21, Maryland Bill of Rights, which provides that "in all criminal prosecutions, every man hath a right to be informed of the accusation against him," and of the Fourteenth Amendment to the Federal Constitution, which prohibits any state from making or enforcing any law abridging the privileges or immunities of citizens of the United States, or from depriving any person of life, liberty, or property without due process of law.

The indictment, as has been noted, follows the statute, except that it adds the word "negligently" to the word "feloniously," but, in all other respects, the two are identical. So that the objection goes not only to the indictment in this case but to the statute, and it becomes necessary to ascertain the nature of the crime of manslaughter and its constituent elements to determine whether the statutory form is sufficient (1) to notify the accused of the crime with which he is charged, and (2) whether the addition of the word "negligently" alters, contradicts, or enlarges the significance of the word "feloniously," and, if it does, whether it vitiates the indictment.

Manslaughter has been defined to be "the unlawful and felonious killing of another, without malice aforethought, either express or implied, and is either voluntary or involuntary homicide, depending upon the fact whether there was an intention to kill or not." 1 Wharton Cr. Law, par. 421. A "felonious homicide is where one takes the life of another human being purposely and without legal excuse, or without such excuse takes it unintentionally while needlessly doing anything in its nature dangerous to life, or who causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong. Life, however, must be actually taken. The law protects human life by punishing as a felon one who, whether purposely or by want of due care or of due attention to legal or contractual duties, does or omits what results in the death of another. The wrong must have attained the law's standard of magnitude, ascertainable only on examinations and comparisons of our past judicial records." 1 Bishop on Cr. Law, par. 629. So that the elements of the offense are (1) the killing of one human being by another, (2) unlawfully, but (3) without malice. And the principal distinctions between that offense and murder at common law are (1) the absence of malice, and (2) that, after 23 Henry VIII, c. 1, par. 3, murder was excluded from the benefit of clergy. Id., par. 627, § 2.

At common law, it was essential that the indictment should show the name of the person charged, the name of the person killed, the jurisdiction within which and the time at which the homicide occurred, that it was felonious, and such of the facts and circumstances incident to the crime as were reasonably necessary to identify it, and to enable the court to see whether a crime had been committed as charged. Wharton Cr. Proc. c. 16. Measured by that standard, the indictment in this case would unquestionably be defective, but that is not the question involved here, which is, whether the indictment in this case conforms to the statute, and (2), whether the statute itself is valid. If the form prescribed by the statute is sufficient to inform the defendant of the "accusation against him," it does not violate article 21 of the Bill of Rights, and consequently is not repugnant to the "due process" clause of the Fourteenth Amendment of the Federal Constitution.

It is said in 31 C.J. 651, that "it is within the power of the legislatures under such a constitutional provision to prescribe the form of the indictment or information, and such form may omit averments regarded as necessary at common law. But the Legislature, while it may simplify the form of an indictment or information,...