People v. Layman, 61.

• Decision Date: 02 September 1941
• Docket Number: No. 61.,61.
• Citation: 299 N.W. 840,299 Mich. 141
• Parties: PEOPLE v. LAYMAN.
• Court: Michigan Supreme Court

299 Mich. 141

299 N.W. 840

PEOPLE

v.LAYMAN.

No. 61.

Supreme Court of Michigan.

Sept. 2, 1941.

James Layman was convicted of the offense of involuntary manslaughter by the operation of an automobile, and appeals.

Affirmed.

Appeal from Recorder's Court of Detroit, Traffic and Ordinance Division; George T. Murphy, Judge.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., and William E. Dowling, Pros. Atty., Henrietta E. Rosenthal, Asst. Pros. Atty., and Glenn C. Hague, Asst. Pros. Atty., all of Detroit, for the People.

SHARPE, Chief Justice.

Defendant, James Layman, was convicted of the offense of involuntary manslaughter by the operation of an automobile. The information charged that James Layman ‘did by the operation of a vehicle, to wit, an automobile, in a careless, reckless and negligent manner, wilfully and wantonly, cause the death of James Barnhard * * *.’

In the city of Detroit, Pembroke avenue runs east and west and Wyoming avenue runs north and south. About 1:30 a. m., on December 24, 1939, defendant, driving a Dodge car, was traveling west on Pembroke avenue approaching Wyoming avenue. At the same time, James Barnhard was a passenger in his own car which was being driven by Wilmur Newman north on Wyoming avenue approaching Pembroke avenue. At this time the weather was clear and cold and the pavement dry. Barnhard's car and defendant's car collided in or near the intersection of the above streets. As a result of the collision, Barnhard's car proceeded approximately 70 feet north of the center of the intersection on Wyoming avenue where it collided with another car which was headed south and which had stopped. In the collision, Barnhard suffered injuries from which he later died.

During the trial of the cause, the prosecuting attorney introduced evidence from three police officers that after the accident defendant was under the influence of intoxicating liquor to such an extent that his ability to drive a car would be affected and impaired. Three other witnesses testified that they could smell alcoholic liquor upon defendant's breath.

Newman, the driver of Barnhard's car, testified that he first saw defendant's car after he (Newman) had entered the intersection, but that defendant was traveling so fast that he (Newman) could not stop in time to avoid the collision. Another witness testified that he watched defendant's car from the time it was one and a half blocks east of the intersection and that it was traveling 55 miles per hour and at the rate it was going it would be impossible to stop.

Defendant appeals and contends that the sentence for involuntary manslaughter was contrary to law and if any crime was committed, it was one of negligent homicide; that the verdict was against the great weight of the evidence; that prejudicial error was committed in the argument of the prosecuting attorney and the charge of the court; that the court erred in charging the jury as to what constitutes the offense of involuntary manslaughter; and that counsel for defendant was unduly restricted in his cross examination of one of the people's witnesses.

Defendant relies upon People v. Orr, 243 Mich. 300, 220 N.W. 777, 779, in support of his claim that the sentence of involuntary manslaughter was contrary to law. In the above case the conviction was set aside and a new trial granted because of the failure of the trial court to instruct the jury on the burden of proof, but we said in an advisory capacity that:

‘The charge of manslaughter is here without evidential support. 26 Mich.Law Rev. 820. Before defendant may be found guilty of willfulness, or of wantonness and recklessness, which in effect are willfulness,three necessary elements must be found according to note 69 L.R.A. 516, and text 20 R.C.L. [p.] 145, heretofore approved by this court:

‘(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.

‘(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.

‘(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’

In People v. Townsend, 214 Mich. 267, 273, 183 N.W. 177, 179, 16 A.L.R. 902, we said: ‘It is gross and culpable negligence for a drunken man to guide and operate an automobile upon a public highway, and one doing so and occasioning injuries to another, causing death, is guilty of manslaughter. It was unlawful for defendant to operate his automobile upon the public highway while he was intoxicated; made unlawful by statute, and wrong in and of itself, and it was criminal carelessness to do so and he is guilty of manslaughter, provided the death of Agnes Thorne was a proximate result of his unlawful act.’

The trial court having in mind the above citation instructed the jury as follows: ‘The defendant, James Layman, is charged with the offense known as involuntary manslaughter with a motor vehicle. Involuntary manslaughter, under the common law, is defined as follows: Where a person in the doing of an act, which act in itself is unlawful, but not amounting to a felony, kills another person by accident, such person is guilty of involuntary manslaughter. For instance, the driving of an automobile while under the influence of intoxicating liquor is in itself a misdemeanor, but if while driving that automobile while under the influence of intoxicating liquor a death results then that constitutes the offense known as involuntary manslaughter * * *.’

The above instruction is in harmony with what we said in People v. Townsend, supra.

The trial court also gave the following instructions:

‘Gross negligence means something more than ordinary negligence and something more than heedlessness, thoughtlessness and inattention. It means wantonness or disregard of the consequences which may result or ensue and an indifference or reckless disregard to or for the rights of others that is equivalent to a criminal intent, it goes back to the same proposition I explained to you originally. * * *

‘Before a defendant may be found guilty of wilfulness or of wantonness and recklessness, three necessary elements must be found:

‘First: Knowledge of a situation requiring the exercise of ordinary care and diligence to avert...