People v. Pavlic

• Decision Date: 18 June 1924
• Docket Number: No. 134.,134.
• Citation: 199 N.W. 373,227 Mich. 562
• Parties: PEOPLE v. PAVLIC.
• Court: Michigan Supreme Court

227 Mich. 562

199 N.W. 373

PEOPLE

v.PAVLIC.

No. 134.

Supreme Court of Michigan.

June 18, 1924.

Exceptions before Sentence, from Circuit Court, Muskegon County; John Vanderwerp, Judge.

Tony Pavlic was convicted of involuntary manslaughter, and he excepts before sentence. Reversed and remanded.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Wiest, Fellows, and Moore, JJ., dissenting in part. Willard J. Turner, of Muskegon (John G. Turner, of Muskegon of counsel), for appellant.

Andrew B. Dougherty, Atty. Gen., and Harry W. Jackson, Pros. Atty., and R. Glen Dunn, Asst. Pros. Atty., both of Muskegon, for the People.

McDONALD, J.

The defendant was convicted of involuntary manslaughter and brings his case here for review on exceptions before sentence. The crime is charged to have been committed through the unlawful act of giving and selling the deceased moonshine whisky, the drinking of which, followed by exposure, caused his death. On the trial the defendant offered no proof, contending that the evidence introduced by the people was insufficient on which to base the charge.

The testimony of the people shows that in February, 1923, Howard Harkness, the deceased, his brother Edward, and one Casey Poort, were cutting ice from a small lake in Newaygo county. They were all accustomed to the use of intoxicating liquor. The defendant lived eleven miles away in Muskegon county and was known to be engaged in the business of manufacturing and selling moonshine whisky. They decided to walk to his place and procure a gallon of the liquor. Starting early in the morning they reached there at noon. The defendant gave them about four drinks each and then sold the deceased a gallon, which he put into a half-gallon glass jug and two quart bottles. When they started home, each had taken six or seven drinks and all were somewhat intoxicated. They arranged with the defendant to drive them part of the way home. After they had gone a couple of miles, something went wrong with the automobile, and they undertook the balance of the journey on foot. As to what happened after that, Edward Harkness testifies:

‘We left the automobile at that point, where we turned it around, and Howard and Casey took the liquor, and we went on. We were traveling in Indian file. We were all companions at that time. Casey had the bottles and Howard had the jug. Howard was feeling better than the rest of us, I guess. He ran through the woods. He ran fast right through the woods. He ran fast through the woods himself for a ways. I followed him on the road. I missed him when he was in the woods. I couldn't say how much liquor he drank, and I don't know how much Casey drank. We went close to three miles from where we left the automobile. It was in the neighborhood of 3 or 4 o'clock in the afternoon. We started from Tony's house somewhere about 1 o'clock in his automobile. It was about 4 o'clock in the afternoon when I left Howard. It was about three hours after we had left Tony.

‘Q. Now, where were you when you left Howard? A. We was north of the Besaw hill.

‘Q. How did you come to leave him? A. He told me to.

‘Q. You thought it safe to leave him? A. He told me, he said, ‘You go home.’

‘Q. I am not asking you what he told you. You thought it was safe to leave him, did you? A. Yes, I did.

‘Q. You stated on your direct examination here that he appeared perfectly normal to you? A. He did in a way, yes, as near as I knew. * * *

‘Q. Where was Casey when you left Howard and him together? A. Sitting by a stump.

‘Q. And where was Howard? A. He was standing in the road by the side of me.

‘Q. And was he talking? A. He was.

‘Q. And how far was this place that you left him there in company with Casey, as you understood, from where afterwards the body was found? A. Somewhere about 60 rods, somewhere along in that.’

No one saw Howard again that night. The next morning his dead body was found lying in the road. There was about eight inches of snow on the ground and the weather had turned cold in the night. Doctors testified that death was caused by acute alcoholism and exposure to the cold.

Counsel for the defendant contends that the facts proven by the people are insufficient to sustain a conviction of involuntary manslaughter. He argues that the defendant is not guilty of manslaughter because the selling of intoxicating liquor is a felony, and that where death results from the commission of a felony, the homicide is not manslaughter but murder. Counsel apparently overlooks the fact that the violation of the liquor law is only criminal because prohibited by statute. It is not a common-law felony. It is not inherently criminal. Notwithstanding the fact that the statute has declared it to be a felony, it is an act not in itself directly and naturally dangerous to life. So if one in the commission of such an act unintentionally causes the death of another, he is not guilty of murder, nor is he guilty of manslaughter unless he commits the act carelessly and in such a manner as manifests a reckless disregard of human life. The act of selling or furnishing intoxicating liquor in violation of the statute is what the law terms an act malum prohibitum, a crime existing only by reason of statutory prohibition. An unlawful act of this character, which unintentionally causes the death of another, is not in itself a sufficient basis for a charge of involuntary manslaughter. But the commission of such an unlawful act will constitute manslaughter if performed under such circumstances as to supply the intent to do wrong and inflict some bodily injury. This is well illustrated in those cases where one kills another while driving an automobile at an unlawful rate of speed. The unlawful act of exceeding the speed limit is not in itself criminal, but if done in a careless manner, in reckless disregard of the safety of others, and death results, the offender is guilty of involuntary manslaughter. The rule is well stated in Thiede v. State, 106 Neb. 48, 182 N.W. 570, 15 A.L.R. 237, as follows:

‘We believe the rule to be that, though the act, made unlawful by statute, is an act merely malum prohibitum and is...