State v. Blaine

• Decision Date: 14 February 1928
• Citation: 140 A. 566
• Parties: STATE v. BLAINE.
• Court: New Jersey Supreme Court

140 A. 566

STATE

v. BLAINE.

Court of Errors and Appeals of New Jersey.

Feb. 14, 1928.

(Syllabus by the Court.)

Error to Supreme Court.

Charles Blaine was convicted of manslaughter, the conviction was affirmed (137 A. 829), and he brings error. Affirmed.

John W. McGeehan, Jr., of Newark (John M. Mills, of Morristown, on the brief), for plaintiff in error.

Albert H. Holland, Prosecutor of Pleas, of Morristown, for the State.

PARKER, J. We conclude that the judgment should be affirmed, and in the main for the reasons stated in the per curiam opinion of the Supreme Court, ubi supra. There are a few minor errors in that opinion, which do not affect the result. The amiesite road mentioned is 18 feet wide, and not 150 feet, as stated; no doubt what was running in the mind of the writer was the 150 feet that defendant's car traveled after striking the two men.

The statement that we have a statute declaring that driving of an automobile by a person intoxicated shall be a misdemeanor is incorrect. There was such a statute, Act April 16, 1909 (P. L. p. 200; 3 C. S. 1910, p. 3442, L. 36b), quoted in State v. Dugan, 84 N. J. Law, 603, 607, 89 A. 691, affirmed 85 N. J. Law, 730, 89 A. 1135; but Act March 12, 1913 (P. L. p. 103), turned the offense into a disorderly act, and repealed the 1909 act by implication. State v. Rodgers, 91 N. J. Law 212, 219, 102 A. 433. This in turn was repealed (P. L. 1921, p. 488 [14]) and substantially re-enacted as paragraph (3) of section 14 of the Motor Vehicle Act of 1921 (P. L. p. 665), amended by Act March 21, 1923 (P. L. p. 297). The offender is liable to imprisonment of not less than 30 days nor more than 6 months, and may be tried and convicted in a summary proceeding. P. L. 1921, p. 677 et seq. See State v. Rosenblum (N. J. Err. & App.) 130 A. 614.

But, none the less, the driving of an automobile by a person intoxicated is an unlawful act, as the Supreme Court properly says. Whether, if the death of a person is attributable to such unlawful act, the killing is manslaughter per se, as the Supreme Court seems to intimate, is not so clear. See Estell v. State, 51 N. J. Law 182, 185, 17 A. 118, where the test applied was whether the violation of the law had a dangerous tendency. 2 Russ, Crimes, *638; 29 C. J. 1153. In this class of cases the authorities are not wholly in accord as to the character of the unlawful act as an element of manslaughter. See Wharton, Homicide (3d Ed.) § 213, p. 336.

There is another class of cases, based on killings as a result of gross negligence, without more. For example, in State v. Dugan, supra, it was said, at page 608 of 84 N. J. Law (89 A. 694), that "the real inquiry was: Was the death of McDermott occasioned by some grossly negligent acts or act of the defendant, in the operation of the automobile, as unfolded by the testimony?" And in the case at bar the court followed this quite closely, saying to the jury:

"If you find the defendant was in an intoxicated condition while driving the automobile which struck Haggerty and Cramer, and that because of some grossly negligent act or acts of the defendant in the operation of the automobile, occasioned by the intoxication of the defendant, these two men were killed, then the defendant is guilty of manslaughter."

That instruction was, if anything, too favorable to the defendant, for it limited his criminality to gross negligence due to intoxication, although it need not have been so limited. In this second class of cases the rule is a broad one, as it regards as criminal negligence any act or omission, done or left undone, as the case may be, in reckless disregard of the life or safety of another. State v. O'Brien, 32 N. J. Law, at page 172; State v. Reitze, 86 N. J. Law, 407, 409, 92 A. 576; 29 C. J. 1154. Such negligence is often described as "gross" negligence; the word "gross" in this collocation implying an indifference to consequences. Wharton, Homicide (3d Ed.) p. 681; 29 C. J. 1154, note 96 (c). Such negligence may be, and often is, the result of intoxication, but may well exist without it.

The court might properly have charged the eighth request that, "to convict on the ground of negligence on the part of the defendant, there must be shown more gross and culpable negligence than is sufficient to render a defendant liable in a civil suit for not. exercising that care which a reasonable and prudent person would exercise," but the refusal to charge it was not error or harmful, because the quantum of negligence necessary to justify recovery in a civil suit had nothing to do with the case.

The Supreme Court declined to consider the refusal of the twelth, thirteenth, fourteenth, fifteenth, and sixteenth requests as not properly assigned for error or specified as causes for reversal, in that the language of the several requests is not set forth in the assignments or specifications, but they are merely cited by number. The fourteenth was withdrawn, and the fifteenth was charged. The others we have considered, notwithstanding the objection stated by the court below. The twelfth was charged, omitting the caution to exercise care before convicting on circumstantial evidence alone. This was...