State v. Budge

Citation137 A. 244
PartiesSTATE v. BUDGE.
Decision Date10 May 1927
CourtSupreme Judicial Court of Maine (US)

Exceptions from Superior Court, Penobscot County, at Law.

Smith Budge was indicted and tried for manslaughter, and he brings exceptions. Exceptions sustained.


Artemus Weatherbee, Co. Atty., of Lincoln, for the State.

William R. Pattangall, of Augusta, and Benjamin W. Blanchard, of Bangor, for respondent.

WILSON, C. J. The respondent was indicted for the crime of manslaughter by reason of having caused the death of one Andrew Bickford by the improper operation of an automobile on the public highway.

On the evening of May 8, 1925, several young men from the town of Lincoln attended a dance in the town of Howland, returning to their homes some time after midnight in automobiles. The respondent with two friends and his fiancée, who lived near Howland, went to the dance and returned in the respondent's car. The deceased and a friend, by name, Gleason, went to Howland in one automobile, and returned in another belonging to a young man living near the scene of the accident.

Bickford and Gleason lived beyond the home of the friend with whom they returned, and after arriving at his home left the automobile and started to walk along the road to their homes or boarding places. After leaving the automobile, as they entered the traveled way, or shortly thereafter—there being no sidewalk or footpath beside the road at this point for pedestrians—Bickford was struck by the respondent's car and killed.

In his charge, the presiding justice correctly instructed the jury as to the essential elements of criminal negligence, and as to the law governing the operation of motor vehicles on the highways, both as to speed and their operation by any person under the influence of intoxicating liquor, but failed to instruct them as to the rules of law applicable to involuntary homicide resulting while a respondent was engaged in some unlawful act, except as he defined what is termed, in law, misadventure.

In the course of his charge, after explaining to the jury the legal limit of speed in the built-up portions of a town and in the open country, as established by the Legislature, and as to operating automobiles on the highways while intoxicated or under the influence of liquor, the presiding justice then gave the following instruction which is the ground of the respondent's exception:

"In order for you to acquit him of the charge of manslaughter by misadventure, you must find as a fact that he was not violating any one of those three rules of law at the time of the accident. That is a fact for you to determine. If he was doing an unlawful act at the time of the accident, then the principles of homicide by misadventure do not apply. If he was not doing an unlawful act, but was doing it in a criminally negligent manner such as I have explained to you under the principles of criminal negligence, then he would be guilty. If he was not performing a lawful act in a criminally negligent manner at the time of the accident, and was not violating any law at that time, then he was innocent, and your verdict should be not guilty."

We think the exception must be sustained. Not only was the instruction erroneous, but was couched in language that under the circumstances of the case and in the light of other parts of the charge might well tend to mislead the jury as to the essential elements of the offense necessary to be proved by the state, and thereby the respondent was aggrieved. State v. Gallant, 124 Me. 135, 126 A. 576.

The only inference the jury could have drawn from the instruction was that, if the respondent was engaged in an unlawful act at the time of the homicide, they must find him guilty. Not only was the respondent aggrieved in this respect, but the instruction put upon him a burden which the law does not impose. To acquit of manslaughter on the ground of misadventure, a jury is not obliged to find as a fact that a respondent was not at the time of the homicide engaged in doing an unlawful act. If that was a controlling fact, no more is required than that the jury should have a reasonable doubt. The burden is not on a respondent to prove the homicide occurred by misadventure, but on the state to show it was either due to a reckless disregard of the safety of others, or that, if it resulted while in the performance of an unlawful act and involuntary, the unlawful act was malum in se, or, if malum prohibitum, that it was at least the proximate cause of the homicide. Com. v. Deitrick, 218 Pa. 36, 66 A. 1007, 120 Am. St. Rep. 861, 11 Ann. Cas. 308; State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 Am. St. Rep. 661; State v. Matheson, 130 Iowa, 440, 103 N. W. 137, 114 Am. St. Rep. 427, 8 Ann. Cas. 430; State v. Cross, 42 W. Va. 253, 24 S. E. 996.

It is urged, however, that the erroneous instruction was harmless because of other correct instructions. It is true, there were in the beginning of the charge correct instructions as to the definition of criminal negligence and the burden of proof, but the same erroneous premise permeated the entire charge: That only misadventure renders a homicide excusable, and that there can be no misadventure when an unlawful act is present. The effect of all of which was virtually a direction to bring in a verdict of guilty, as it was admitted that the respondent was at least violating the law as to speed in the part of the town of Lincoln where the accident occurred.

At another point in the charge, the presiding justice, referring to misadventure, instructed the jury that to excuse the taking of human life under such circumstances or under such principles as had been explained—

"there must be a concurrence of misfortune or misadventure in the performance of a lawful act, the exercise of due care and no intention to do harm. The absence of any one of these will involve guilt."

The italics are ours to emphasize the impression that must have been left on the minds of the jury by the instruction excepted to, as to the effect of an unlawful act.

Homicides are either felonies, as murder or manslaughter, or excusable or justifiable. A homicide is justifiable if in self-defense, or by order of court. It is excusable when unintentional and the result of accident or misadventure. A definition of misadventure is frequently found in the books, it is true, in the language given to the jury by the court below, viz. a homicide occurring without negligence and while in the performance of a lawful act, a definition which has come down from the days of Hale and Blackstone; but as applied by them and their contemporaries the unlawful act by reason of which misadventure would not excuse an involuntary homicide must be malum in se. Homicide committed while engaged in an act, malum prohibitum, might still be excused if the result of misadventure, the unlawful act not being the proximate cause of the homicide. Foster's Crown Laws, p. 259; Hale P. C. 39; State v. Horton, 139 N. C. 588, 51 S. E. 945, 1 L. R. A. (N. S.) 991, 111 Am. St. Rep. 818, 4 Ann. Cas. 797; People v. Barnes, 182 Mich. 179, 148 N. W. 400.

Bishop in his work on criminal law, vol. 1, § 331, says:

"In these cases of unintended evil result, the intent whence the act accidentally sprang must probably be, if specific, to do a thing which is malum in se and not merely malum prohibitum. Thus Archibald says: 'When a man in the execution of one act by misfortune or chance and not designedly does another act for which, if he had...

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