People v. McMurchy, 148.

CourtSupreme Court of Michigan
Writing for the CourtBUTZEL
Citation228 N.W. 723,249 Mich. 147
Docket NumberNo. 148.,148.
Decision Date17 January 1930


Error to Recorder's Court of Detroit; W. McKay Skillman, Judge.

John G. McMurchy was charged with causing another's death by careless, reckless, and negligent operation of his automobile, and to review an order quashing the indictment, the People bring error. Reversed, with direction.

Argued before the Entire Bench.Wilber M. Brucker, Atty. Gen., Harold J. Waples, Asst. Atty. Gen., and James E. Chenot, Pros. Atty., and P. J. M. Hally, Jr., and Alex. K. Gage, Asst. Pros. Attys., all of Detroit, for the People.

Chawke & Sloan and John Hal Engel, all of Detroit, for appellee.


Act No. 98 of the Public Acts of 1921 reads as follows:

‘An Act to define the crime of negligent homicide, when committed by the operation of a vehicle, and to prescribe penalties for said crime.

The People of the State of Michigan enact:

Section 1. Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of the crime of negligent homicide and upon conviction shall be sentenced to pay a fine not exceeding one thousand dollars, or to undergo imprisonment in the State Prison for a period not exceeding five years, or by both such fine and imprisonment in the discretion of the court.

Sec. 2. The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committed in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter such jury may in its discretion render a verdict of guilty of negligent homicide.

Sec. 3. In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle.

‘Approved April 28, 1921.’

The provisions of this act were considered by this court in the case of People v. Campbell, 237 Mich. 424, 212 N. W. 97. It was held that the offense that this statute defines is homicide caused by more than slight and less than gross negligence.

This act was again under consideration by this court in the case of People v. Maki, 245 Mich. 455, 223 N. W. 70. The court held that the information under this law should set out all facts in regard to the offense with such particularity as to inform the accused of exactly what constituted the negligence. In the Maki Case the validity of the act was also questioned. The decision of the lower court upholding the constitutionality of the act was affirmed, but only by an evenly divided court. The constitutionality of the act is again assailed in the present case, which comes up from the recorder's court of the city of Detroit on a writ of error.

An information was filed against respondent, charging that on July 23, 1928, by operation of his automobile in a careless, reckless, and negligent manner, but not willfully and wantonly, he caused the death of Caroline Plunkett, etc. The details of the alleged homicide are set forth with full particularity. The information states that respondent was driving at a rate of 35 miles an hour; that he did not have his automobile under control so as to be able to slow down, stop, or turn aside said automobile upon approaching pedestrians and others lawfully upon the highway and the intersecting streets; that he did not give any signal of his approach; that he did not slow down his automobile upon approaching the intersection at which Caroline Plunkett was lawfully driving her automobile; and, as a result thereof, in a careless, reckless, and negligent manner drove his automobile with such force and violence against the automobile driven by said Caroline Plunkett that he inflicted upon her divers injuries from which she died. The information is complete in every detail. Although it does not charge that respondent was driving at an immoderate rate of speed, considering traffic conditions at the time and place of the offense, it does show that he was negligent within the purview of the statute.

A motion was made to quash the indictment. All objections raised as to the insufficiency of the testimony produced before the examining magistrate having been waived, the sole question raised is the constitutionality of the act.

The objections made to the act are numerous. It was contended on behalf of the respondent: (1) That the purpose is not sufficiently expressed by the title; (2) that the act embraces more than one subject; (3) that section 3 confers judicial powers upon the jury and delegates to them the power to sustain or repeal existing statutes governing the operation of automobiles, particularly the motor vehicle laws of the state of Michigan; (4) that it gives the jury legislative powers; (5) that it gives to the jury the power to create the offense and then determine whether the defendant is guilty or not; and (6) that it retains the common-law offense of manslaughter without any notice thereof set forth in the title.

It is further claimed that the act violates the Constitutions of the United States and the state of Michigan, in that it is so indefinite and uncertain as to constitute deprivation of life, liberty, or property without due process; that the act is ex post facto; and that the accused cannot be informed of the accusation against him, because the law governing any particular offense cannot be declared until the offense described in the act has been committed.

The trial judge stated that because of the Maki Case doubt had arisen as to the constitutionality of the act, and for this reason a very large number of negligent homicide cases were being held for trial pending a further expression of this court. He therefore rendered an immediate opinion so that an appeal could be taken to this court. In a written opinion, he sustained the motion to quash, and held that the act was unconstitutional. He based his ruling on the grounds that under this act drivers of cars never would know whether they are guilty or not, until the jury should pass upon their guilt after a fatal accident occurred; that the magistrate to whom the request for a warrant should be presented would not know whether the rate of speed employed by the vehicle that caused the fatal accident was a moderate one or not, and would be obliged to issue the warrant; that it would be mandatory for the trial judge to submit the case to the jury, for the reason that the jury alone would have the right to determine whether the rate of speed was moderate or immoderate; that the accused would not know how to plead; that he would not understand the nature of the offense for which he was charged; that it gives legislative powers to the jury; that it gives the jury the power to suspend the laws governing the speed at which vehicles may be operated under the laws of the state of Michigan; that the act covers more than one subject, and that the purpose of the act is not fully set forth in the title thereof.

The purpose of the act is sufficiently expressed in the title. The purport of the act is fully covered. There is nothing in the title to which the provisions of the act are not germane, auxiliary, or incidental. The clause in regard to involuntary manslaughter in no way changes the common-law crime of manslaughter. There is no general statutory enactment defining manslaughter. Therefore there is no statute to repeal or amend. It is not necessary to state in the title of the act that the crime of negligent homicide is included within every crime of manslaughter. The title, which states that it defines the crime of negligent homicide, is sufficient and complete.

The inclusion of the provision in regard to immoderate speed is proper. It in no way affects the speed limit laws, the violation of which is punishable under the statutes regulating them. While it is permissible to drive within certain limits of speed, the law provides that such speed must always be at a prudent and reasonable rate and not greater than will permit the driver to stop his car within the assured clear distance ahead. The speed limit law provides for the punishment for the violation of its provisions. It does not provide for the additional criminal or civil liability of one who violates the law and in so doing commits homicide. One may be guilty of murder and also of another crime that he commits while in the act of murder. If a person drives at a rate of speed forbidden by the speed limit laws, he would be punishable under such laws. If he commits homicide, he may be punishable under the act defining negligent homicide.

The commonly accepted definition of ‘immoderate’ is: Not within reasonable limits.’ If one drives at a rate of speed that is not reasonable, he is driving at an immoderate rate of speed and not within reasonable limits. If under those circumstances he kills a person, he is guilty of negligence. The term ‘immoderate speed’ constitutes a form of negligence, and may result in damage to person or property. If it causes death, it is negligent homicide. For this reason, the entire discussion in this opinion in regard to negligence is also applicable to negligent homicide by one driving at an immoderate rate of speed.

The law is further attacked on the ground that a prosecuting officer of this state, when requesting the issuance of a warrant under this act, and the magistrate to whom such request is presented, would be bound to issue a warrant for the arrest of the accused even though there might be an honest belief that no crime had been committed. If a crime has been committed, and there is sufficient evidence to secure a conviction, there is no question as to their plain duty in the...

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    ...the sentencing guidelines would work counter to both goals. This demonstrates that severance is not appropriate. People v. McMurchy, 249 Mich. 147, 157-159, 228 N.W. 723 (1930). Given that the offending sections cannot be severed, the guidelines as a whole must be found no longer However, a......
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