People v. Wardell

• Decision Date: 20 October 1939
• Docket Number: No. 121.,121.
• Citation: 291 Mich. 276,289 N.W. 328
• Parties: PEOPLE v. WARDELL
• Court: Michigan Supreme Court

291 Mich. 276

289 N.W. 328

PEOPLE

v.WARDELL

No. 121.

Supreme Court of Michigan.

Oct. 20, 1939.

Harvey Wardell was convicted of involuntary manslaughter, and he appeals.

Affirmed.Appeal from Recorder's Court of Detroit, Traffic and Ordinance Division; Thomas F. Maher, Judge.

Argued before the Entire Bench.

Samuel L. Weller, of Detroit (Albert Summer, of Detroit, of counsel), for appellant.

Thomas Read, Atty. Gen., and Duncan C. McCrea, Pros. Atty., and William L. Brunner, Richard V. Nahabedian, and Clifford J. Bird, Asst. Pros. Attys., all of Detroit, for the People.

SHARPE, Justice.

Defendant, Harvey Wardell, on April 14, 1938, was convicted of the offense of involuntary manslaughter by the operation of an automobile. The information charged the defendant with having caused the death of Leona Proctor while operating an automobile at an excessive rate of speed and while under the influence of intoxicating liquor, and while Leona Proctor was standing in a safety zone.

Defendant appeals and complains of the following instructions given to the jury:

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

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

‘2. Ability to avoid a 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 warrant a conviction in this case under the charge of Involuntary Manslaughter, the negligence of the accused, if there was negligence on his part, must have been the proximate cause of the death of the deceased, and must have been characterized by such a degree of culpable negligence as to amount to gross negligence, and this is the question for you to decide.

* * *

‘For the purpose of clearly fixing in your mind what the crime of Involuntary Manslaughter consists of, I will define it again for you; it is the unintentional killing of a person in the commission of an unlawful act, less than a felony, without any intention to do so, in an unlawful manner of an unlawful act, which probably would produce such circumstances, coupled with gross negligence. For example, driving a car while under the influence of intoxicating liquors, where death results, is sufficient, I believe, and goes to make up the offense known as Involuntary Manslaughter; driving through a stop street where properly and duly designated signs have been placed, where death results.’

And of the failure of the trial court to give the following instructions as requested by defendant:

‘I charge you, Ladies and Gentlemen, that the offense of manslaughter is not shown if the People show that on the day in question the acts of the defendant were merely slightly different from those of a person of ordinary prudence under the same or similar circumstances, or if the acts of the defendant are the result of inadvertence, thoughtlessness, or inattention. The offense of manslaughter is not made out short of showing on the part of the defendant wilfulness and wantonness, and a knowing disregard for the consequence of his acts. If the People have failed to prove to you beyond a reasonable doubt that the defendant's acts were wilful and wanton, then you may not find him guilty of manslaughter.

* * *

‘I charge you, Ladies and Gentlemen of the Jury, that you may not infer that the defendant's acts were wilful and wanton because the results of his acts may have been dire and shocking.’

In People v. Ryczek, 224 Mich. 106, 194 N.W. 609, 611, we 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.’ See, also, People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902.

In the case at bar the instructions given to the jury were upon the theory of manslaughter committed by doing an unlawful act as distinguished from the doing of a lawful act in a grossly negligent manner.

In People v. Townsend, 214 Mich. 267, 183 N.W. 177, 179, 16 A.L.R. 902, we said: ‘The distinction between...