State v. Barnett

• Decision Date: 10 January 1951
• Docket Number: No. 16454,16454
• Citation: 63 S.E.2d 57,218 S.C. 415
• Parties: STATE v. BARNETT.
• Court: South Carolina Supreme Court

Page 57

63 S.E.2d 57

218 S.C. 415

STATE v. BARNETT.

No. 16454.

Supreme Court of South Carolina.

Jan. 10, 1951.

Williams & Parler, Lancaster, Hemphill & Hemphill, Chester, for appellant.

Gregory & Gregory, Lancaster, Solicitor W. G. Finley, York, for respondent.

OXNER, Justice.

Appellant was convicted of involuntary manslaughter. It was alleged in the indictment that the homicide resulted from criminal negligence in the operation of an automobile. The exceptions on this appeal relate solely to the charge.

It is contended that the Court failed to charge that any doubt as to the guilt or innocence of the accused must be resolved in his favor. The jury was fully instructed that the burden was upon the State to prove the guilt of the accused beyond a reasonable doubt and after carefully explaining the meaning of this term, the Court said: 'Now, do you have any such doubt as that in this case? If so, it would be your duty to resolve the doubt in favor of the accused and write a verdict of not guilty.' There is no merit in this exception.

Another assignment of error relates to an oversight on the part of the Court in failing to charge on the presumption of innocence. The jury was fully instructed as to reasonable doubt. At the conclusion of the charge, the Court inquired if any further instructions were desired but appellant's counsel did not call the Court's attention to the omission now complained of. This exception is overruled under the authority of State v. Johnson, S.C., 156 S.E. 351, 352, and State v. Biggs, 192 S.C. 49, 5 S.E.2d 563. In the Johnson case, the Court said: 'It would have been the proper thing in this case for the trial judge to have given such instruction; but, in view of the fact that he instructed the jury fully as to reasonable doubt, and that there was no request for a specific charge as to presumption of innocence, we do not think, under the authorities cited, that his failure to charge as to such presumption was reversible error.' Also, see State v. McGee, 185 S.C. 184, 193 S.E. 303; State v. Lyles, 210 S.C. 87, 41 S.E.2d 625.

Error is assigned in the instructions relating to the degree of negligence necessary to sustain a conviction of involuntary manslaughter. It is said that the Court erred in charging that ordinary negligence is sufficient and that the jury should have been instructed that it was incumbent upon the State to show gross negligence or recklessness.

After defining involuntary manslaughter and distinguishing that offense from voluntary manslaughter, the Court stated that involuntary manslaughter may consist in the 'killing of another without malice and unintentionally, but while one is engaged in the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm', or in 'the killing of another without malice and unintentionally but while one is negligently engaged in doing a lawful act.' The jury was given the usual definition of negligence but was not instructed as to gross negligence, recklessness or wantonness. The testimony is not incorporated in the record but we assume from the charge that the State relied on the violation of certain statutes in this State regulating the operation of automobiles, and the jury was instructed that a violation of a statute of this kind constitutes negligence per se.

The charge of the trial Judge is in accord with the rule laid down by this Court in State v. Hanahan, 111 S.C. 58, 96 S.E. 667; State v. Dixon, 181 S.C. 1, 186 S.E. 531; State v. Staggs, 186 S.C. 151, 195 S.E. 130; State v. Brown, 205 S.C. 514, 32 S.E.2d 825. It was held in these cases that simple negligence in the operation of an automobile is sufficient to support a conviction of involuntary manslaughter.

We ordered a reargument of this case on the question of whether we should adhere to the rule established by the foregoing decisions and have been furnished excellent briefs by counsel for both appellant and respondent, as well as an able and comprehensive brief by the Attorney General, all of which have been of much aid in our reexamination of the question.

The degree of negligence necessary to establish criminal liability has perplexed the courts of England and America for centuries. The subject has at times been the source of much confusion. In the early development of the criminal law in England it was held that ordinary negligence, that is, the failure to exercise due care, was sufficient. Later it was found that this rule was too harsh. A noted English authority observed that an accident brought about by an act of ordinary negligence 'may be the lot of even the wisest and best of mankind.' The English courts finally concluded that more carelessness was required to create criminal liability than civil but they found it difficult to determine 'how much more'. They use such words as 'gross', 'reckless' and 'culpable', and hold that it is for the jury to decide, in view of all the circumstances, whether the act was of such character as to be worthy of punishment. An excellent review of the English decisions will be found in People v. Angelo, 246 N.Y. 451, 159 N.E. 394. Professor Moreland made a valuable contribution to the subject in an article entitled 'A Rationale of Criminal Negligence', reported in Volume 32 of the Kentucky Law Journal. It seems to be the rule in Canada that there is no criminal liability unless there is gross negligence or wanton misconduct and that 'to constitute crime, there must be a certain moral quality carried into the act before it becomes culpable.' Rex v. Greisman, 4 D.L.R. 738, 49 Can.C.C. 172. There was a tendency in the early American decisions to follow the rule first adopted in England to the effect that ordinary negligence was sufficient. That standard was soon repudiated, however, by the great majority of the courts in this country and it is now generally held that the negligence of the accused must be 'culpable', 'gross', or 'reckless', that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or conduct amounting to an indifference to consequences. 26 Am.Jur., Homicide, Section 210, page 299; 40 C.J.S., Homicide, § 62. Of course, under all the authorities the conduct of the accused must be judged in the light of the potential danger involved in the lawful act being performed. In perhaps a majority of the states, the offense of involuntary manslaughter is now defined by statute. Although variously worded, these statutes, with a few exceptions, have been construed as requiring gross negligence or recklessness. Annotation 161 A.L.R. 10.

Adverting now to homicides resulting from the operation of automobiles, in almost all jurisdictions, either by statute or by application of the rule governing involuntary manslaughter at common law, the rule is that the negligence necessary to convict a motorist of involuntary manslaughter must be of a higher degree than is required to establish negligent default on a mere civil issue and that the proof must show recklessness or such carelessness as is incompatible with proper regard for human life. 5 Am.Jur., Automobiles, Section 790, page 927; 61 C.J.S., Motor Vehicles, § 659(b); Annotation 99 A.L.R., page 829; Blashfield Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 8, Section 5388. Most courts have refused to consider an automobile as an inherently dangerous instrumentality so as to warrant the application of the 'deadly weapon' rule. State v. Clark, 196 Iowa 1134, 196 N.W. 82.

In the light of the foregoing general background, we shall now consider and review the decisions of this Court relating to involuntary manslaughter resulting from negligence. The legislature of this State has never undertaken to define involuntary manslaughter. The general statutory definition, Section 1107 of the 1942 Code, that manslaughter is 'the unlawful killing of another without malice, express or implied', includes both voluntary and involuntary manslaughter. For a long number of years the punishment for both offenses was the same, namely, imprisonment for not less than two years nor more than thirty years In 1931 the statute was amended so as to provide a maximum term of three years. for involuntary manslaughter. 37 St. at L. 332. In 1934 the statute was further amended, so that now the punishment for this form of homicide is imprisonment for a period of not less than three months nor more than three years in the discretion of the trial Judge. 38 St. at L. 1463; Section 1107 of the 1942 Code.

There being no statutory definition of involuntary manslaughter, the courts of this State necessarily followed the common law definition. In doing so, as might have been expected from the experience of other courts, there has been some difficulty, and at times confusion, in determining the degree of negligence necessary to establish the offense.

We shall first review the cases in this State involving the use of firearms. Passing over the earlier decisions, it was held in State v. Gilliam, 66 S.C. 419, 45 S.E. 6, that one who causes the death of another by the negligent use of a pistol or gun is guilty of involuntary manslaughter, unless the negligence is so wanton as to make the killing murder. In State v. Clardy, 73 S.C. 340, 53 S.E. 493, 500, the Court indicated that gross carelessness in the handling of a deadly weapon was necessary to support a verdict of involuntary manslaughter, and quoted with approval the following: 'And undoubtedly the common-law rule is that criminality may be affirmed of a lawful act carelessly or negligently done. The negligence, however, must be aggravated, culpable, gross. That is, it must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as evidences a...