People v. Angelo

• Citation: 246 N.Y. 451,159 N.E. 394
• Parties: PEOPLE v. ANGELO.
• Decision Date: 22 November 1927
• Court: New York Court of Appeals

246 N.Y. 451

159 N.E. 394

PEOPLE

v.ANGELO.

Court of Appeals of New York.

Nov. 22, 1927.

Michael Angelo was convicted of manslaughter in the second degree, and he appealed to the Appellate Division. The judgment of conviction was reversed as a matter of law, and a new trial granted (219 App. Div. 646, 221 N. Y. S. 47), and the People appeal.

Affirmed.

See, also, 126 Misc. Rep. 448, 214 N. Y. S. 499.

Pound, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth department.

Guy B. Moore, Dist. Atty., of Buffalo (John J. Kane, of Buffalo, of counsel), for the People.

Michael J. Montesano and Joseph LeC. Bell, both of Buffalo, for respondent.

ANDREWS, J.

At a street intersection there was a collision between two automobiles, a passenger in one being killed. The driver of the other has been convicted of manslaughter in the second degree. The judgment was reversed by the Appellate Division because it was thought that erroneous instructions were given to the jury as to the meaning of the words ‘culpable negligence.’ Whether this is so or not requires an analysis of two sections of the Penal Law.

[1][2] Any killing is homicide-either murder or manslaughter-unless the act is excusable or justifiable. With the latter exception we do not here deal. If is excusable, however, if the homicide is committed by accident or misfortune in doing a lawful act by lawful means, with ordinary caution, without unlawful intent. Penal Law (Consol. Laws, c. 40), § 1054. What is meant by ‘ordinary caution’ is defined by section 1052. Where the killing is the result of ‘any act, procurement or culpable negligence’-not constituting the crime of murder or manslaughter in the first degree-the defendant is guilty of manslaughter in the second degree. ‘Ordinary caution’ must mean the absence of culpable negligence, otherwise a gap might exist-a case of homicide not excusable under section 1054, yet not criminal under the definitions of sections 1044, 1046, 1050 and 1052. But section 1043 is intended to include every species of homicide. The ultimate question, therefore, is as to the intent of the Legislature in using the two words ‘culpable’ and ‘negligence.’

‘Culpable’ has been defined as ‘guilty, criminal, deserving punishment or condemnation,’ and more mildly as ‘deserving blame or censure, blameworthy.’ Oxford Dictionary. It may be said that any negligence resulting in injury to another is blameworthy. Were this the meaning of the Legislature, the use of the adjective is superfluous. In truth, however, our criminal law has an historic background. Criminal negligence is no new invention. We did not first use the word ‘culpable.’

A sketch of the common law as to homicide may be found in Stephen's History of the Criminal Law, vol. 3, p. 1. He says Bracton distinguishes between casual homicides caused by a lawful act without or with negligence and casual homicide caused by an unlawful act. In the first of the three cases he believed no offense was committed. As time went on the rules as to homicide became fixed. About 1762 Sir Michael Foster defines homicide per infortunium as death caused unintentionally in doing a lawful act with due caution or with only slight negligence. Stephens sums up the common-law rule in his Digest of the Criminal Law, p. 169:

‘No one is deemed to have committed a manslaughter only because he had caused the death * * * of another by negligence which is not culpable. What amount of negligence can be called culpable is a question of degree for the jury, depending on the circumstances of each particular case. An intentional omission to discharge legal duty always constitutes culpable negligence.’

Abundant support of this proposition is found both in text-books and in opinions. Chapter 39 of Hale's Pleas of the Crown discusses involuntary homicide, and a note at page 475 says that the test of criminal responsibility is--

‘whether the conduct of the accused is contrary to law or not being so forbidden was so gross, negligent, or violent as necessarily to produce the belief that the act which * * * caused death was such an act or was done in such a manner as to involve moral impropriety.

Some similar statements are found in East's Pleas of the Crown and in Russell on Crimes. And in Wharton on Homicide we find the statement that to warrant a conviction of manslaughter there must be criminal intent or negligence so gross as to imply it. Page 9.

As to precedents, 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. J. Kelyng, Crown Cases, 40. And later cases reiterate this settled rule. 1829: Rex v. Van Butchell, 3 Car. & P. 629; Rex v. Williamson, 3 Car. & P. 635. 1807: Rex v. Long, 4 Car. & P. 398. 1831: Rex v. Long, 4 Car. & P. 423. 1835: Rex v. Green, 7 Car. & P. 156. 1857: Reg. v. Hughes, 1 Dears. & B. 248. 1860: Reg. v. Gregory, 2 Fost. & F. 153. 1864: Reg. v. Markuss, 4 Fost. & F. 356. 1866: Reg. v. Noakes, 4 Fost. & F. 920. 1874: Reg. v. Finney, 12 Cox. C. C. 625; Reg. v. Nicholls, 13 Cox, C. C. 75. 1883: Reg. v. Franklin, 15 Cox, C. C. 163. 1887: Reg. v. Doherty, 16 Cox, C. C. 306. 1889: Reg. v. Elliott, 16 Cox, C. C. 710. 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.

This, then, was the common law. And in this condition it passed to the colony of New York. In the original grant to the Duke of York he was authorized to establish laws and ordinances civil and criminal. ‘Soe always as the said statutes ordinances and proceedings, bee not contrary to but as neare as conveniently may bee agreeable to the lawes, statutes and government of this our realme of England.’ Accordingly his laws state that as it was impossible to provide sufficient laws for all cases and proper punishments, the Court of Assizes shall award punishments in their discretion, but ‘not contrary to the known laws of England.’ And in the instructions to Dongan in 1683 the Governor was required to follow established and known laws ‘not repugnant to but as nigh as may be agreeable to the laws of the kingdome of England.’ Apparently, under the colony this was thought sufficient, and no independent definition of manslaughter appears in the statutes.

Under our first state Constitution, such parts of the common and statutory laws of England, and such acts of the colonial Legislature as formed the law of the colony on April 19, 1775, were continued in force. Chapter 22 of the Laws of 1787 related to murder. It says, however, that if the homicide occurred by misfortune the accused is to be acquitted-the old phrase homicide per infortunium. The reference is to the older usage-a conviction of the accused, followed by pardon. Manslaughter is not directly defined. It is considered a felony and as such is included in a statute fixing penalties for various unnamed felonies. 1 Rev. Laws (Revision 1801) c. 58, § 4.

Finally came the Revised Statutes in 1828. Part 4 was substantially a Penal Code and a Code of Criminal Procedure. It, for the first time, gives a precise definition of murder and manslaughter. And the latter is divided into four degrees. The revisers in their notes speak of the existing law. They say the offense is anomalous, ranging from murder to excusable homicide. They wish to apportion the punishment to the depravity of the offense. If the act is imminently dangerous to others, evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, it is murder. If the accused, engaged in a lawful act in which there is no apparent risk of life, but not using ordinary care and precaution, kills another he is guilty of manslaughter in the fourth degree. Evidently the Legislature was not satisfied with this definition. Its intent was to soften existing rules, not to make them more rigorous. It contained eminent lawyers well instructed as to the common law. It...