People v. Scott, Docket No. 8209

• Decision Date: 20 January 1971
• Docket Number: Docket No. 8209,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Nelson SCOTT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 576

185 N.W.2d 576

29 Mich.App. 549

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis Nelson SCOTT, Defendant-Appellant.

Docket No. 8209.

Court of Appeals of Michigan, Division No. 1.

Jan. 20, 1971.

Released for Publication April 20, 1971.

Irving Tukel, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William A. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and DANHOF and MAHINSKE, ^* JJ.

J. H. GILLIS, Presiding Judge.

Defendant appeals as of right from a conviction by jury of involuntary manslaughter, M.C.L.A. § 750.321 (Stat.Ann.1954 Rev. § 28.553).

The defendant, after engaging in an exchange of verbal hostilities with the occupants of a police patrol car, attempted to force the vehicle off the road. A chase ensued and a radio alert was relayed to other cars in the vicinity. An unmarked patrol car, in pursuit of defendant, collided at an intersection with a DSR bus, killing one of the officers in the patrol car.

The single issue raised on appeal is whether trial court committed reversible error when it instructed the jury that to find the defendant guilty of involuntary manslaughter it must be established that the defendant's negligence was 'a' proximate cause of the police officer's death and whether the court further erred in rejecting the defendant's contention that his negligence must constitute 'the' proximate cause.

In People v. Ryczek (1923), 224 Mich. 106, 110, 194 N.W. 609, 611, the Court defined 'involuntary manslaughter' as follows:

'Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.' ¹

Michigan courts have traditionally held that a conviction for involuntary manslaughter, especially when committed with an automobile, may be sustained if the trier of fact is

'(Able to) determine (that) the defendant was guilty of gross and culpable negligence in the operation of his motor vehicle and that said gross negligence in the operation of such motor vehicle was the proximate cause of the death of the deceased.' People v. Layman (1941), 299 Mich. 141, 145, 146, 299 N.W. 840, 841.

See also: People v. Carter (1893), 96 Mich. 583, 56 N.W. 79; People v. Barnes (1914), 182 Mich. 179, 148 N.W. 400; People v. Wardell (1939), 291 Mich. 276, 289 N.W. 328; People v. Marshall (1961), 362 Mich. 170, 106 N.W.2d 842.

Defendant stipulates, on appeal, that the speed and manner in which he was operating his car was such as could be deemed wilful and wanton disregard for the safety of others. It is the contention of the people that because the defendant readily admits that his driving was grossly negligent, that that erratic driving then becomes the proximate cause of the death of the police officer. They contend that if the defendant's driving had not been in violation of state law, the police would never have given chase and the death would not have occurred. Further, it is their contention that even if there were another independent cause for the officer's death, the jury could still find the defendant guilty of the offense charged if they found that his gross negligence was 'a proximate cause' of the death. We find this logic unacceptable.

The trial judge's charge to the jury defined 'proximate cause' to be

'A direct and producing cause of the damage or injury. It doesn't have to be 'the' direct. The reason I say 'a' direct is that there can be more than one proximate cause of the damage or injury complained of * * *. As far as you (the jury) are concerned in this case, it is up to you to determine whether there was a causal connection between the driving of the defendant, if you find there was improper driving, and the end result * * *. There can be more than one proximate cause, as I told you.'

Further, the defense in objecting to the court's instructions, stated:

'Mr. Matish: In essence, I think what your Honor was telling the jury was, first of all, that they both can be negligence (sic) and you can still find the defendant guilty.

'The Court: That's right.

'Mr. Matish: However, the only way you can find him not guilty is to find that only the officer was negligent. I think in essence that was the meaning.

'The Court: I understand what you are pointing out * * *. I think that the definition of proximate cause I gave them was all right.'

The court, in its definition of 'proximate cause,' has adopted the civil law definition and applied it to a criminal prosecution.

The application of tort proximate cause principles to homicide prosecutions was first exhaustively discussed in Commonwealth v. Redline (1958), 391 Pa. 486, 137 A.2d 472 where the court reversed the murder conviction of a felon whose cofelon was killed by the police who thwarted an attempted robbery. The court held that the mere coincidence of homicide and a felony is not sufficient to satisfy the requirements of the felony-murder statute. To convict the felon, the homicide must be committed in furtherance of that felony. The Michigan Supreme Court distinguished their position taken in People v. Podolski (1952), 332 Mich. 508, 52 N.W.2d 201, where the death of one co-felon was imputed to the other, in People v. Austin (1963), 370 Mich. 12, 120 N.W.2d 766, where the majority opinion adopted the rationale of Redline.

Similarly, the Pennsylvania courts recently reconsidered the application of tort proximate cause principles to a homicide which occurred during the commission of a non-felony in Commonwealth v. Root (1961), 403 Pa. 571, 170 A.2d 310, 82 A.L.R.2d 452. In that case the defendant was engaged in a drag race on a public highway with another person who, on his own, swerved to the left side of the road, crashed head-on into an oncoming truck, and was killed. The Pennsylvania Supreme Court, in reversing Root's conviction for involuntary manslaughter, held that the defendant's reckless conduct was not a sufficient direct cause of the competing driver's death to make him criminally liable for the death. Further, the court held that the,

'Tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction.' (Root, supra, p. 580, 170 A.2d p. 314). ²

Chief Justice Jones illuminated the majority holding when he said:

'While precedent is to be found for application of the tort law concept of 'proximate cause' in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. More specifically, this area of civil law has been progressively liberalized in favor of claims for damages for personal injuries to which careless conduct of others can in some way be associated. To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of Civil liability of defendants in tort actions for negligence would be to extend possible Criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death.' Root, supra, p. 574, 170 A.2d p. 311.

If the tort liability concept of proximate cause were applied in criminal homicide prosecutions, the conduct of the decedent would have to be considered. That conduct would be examined not to prove that it was merely an additional proximate cause, but rather to determine whether it amounted to a subsequent wrongful act and thus superseded the original conduct chargeable to defendant. The trial court properly instructed the jury that they could find defendant not guilty if they determined that deceased's conduct was the sole cause of the collision. However, the court did give the instruction that the defendant could be found guilty if it was determined that both defendant and deceased had acted negligently. Such a charge is in opposition to the fundamental principles of criminal responsibility. It is axiomatic that 'criminal guilt under our law is personal fault.' People v. Sobczak (1955), 344 Mich. 465, 470, 73 N.W.2d 921, 923. 'It is the very essence of our deeprooted notions of criminal liability that guilt be personal and individual.' ³ Commentary on Commonwealth v. Redline, Supra, reiterates why the tort standard of proximate cause is unacceptable in criminal prosecutions:

'A closer causal connection between the felony and the killing than the proximate-cause theory normally applicable to tort cases should be required because of the extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with who shall bear the burden of a loss.' ⁴

Other states have agreed with the reasoning adopted by Pennsylvania and have compelled their triers of fact, when implementing 'proximate causation' in criminal prosecutions, to find that the defendant's act be the proximate cause of the homicide charged. It has been said this way:

'Whether the misconduct proven constitutes gross negligence or ordinary negligence it must appear that it was The proximate cause of the death.' People v....