State v. Gibson

• Decision Date: 03 June 1968
• Docket Number: No. 161,161
• Citation: 242 A.2d 575,4 Md.App. 236
• Parties: STATE of Maryland v. Michael Dana Glbson.
• Court: Court of Special Appeals of Maryland

Page 236

4 Md.App. 236

242 A.2d 575

STATE of Maryland v. Michael Dana Glbson.

No. 161.

Court of Special Appeals of Maryland.

June 3, 1968.

L. Robert Evans, Deputy State's Atty. for Baltimore County, with whom were Francis B. Burch, Atty. Gen., Donald Needle, Asst. Atty. Gen., Samuel A. Green, Jr., State's Atty. for Baltimore County, on brief, for appellant.

Richard D. Byrd, and Donald J. Gilmore, Towson, with Wylie L. Ritchey, Towson, on brief (deceased), for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

A six-count indictment was returned against appellee Gibson by the Grand Jury of Baltimore County as a result of the death on September 10, 1966 of Diane Grempler by reason of appellee's alleged illegal and improper operation of a motor vehicle. Each of the first three counts of the indictment charged that appellee 'did feloniously kill and slay' the deceased as a direct result of his commission of certain statutory misdemeanors, viz., that he operated his motor vehicle in violation of the motor vehicle laws of Maryland, Maryland Code (1967 Repl.Vol.) Article 66 1/2, and more specifically:

1. As to the first court-that appellee, in violation of Sections 233 and 242, did fail to stop his motor vehicle in obedience to a stop sign and grant the right of way to a vehicle traveling on a paved highway.

2. As to the second count-that appellee, in violation of Section 209, recklessly operated his motor vehicle upon a public highway.

3. As to the third count-that appellee, in violation of Section 206, operated his motor vehicle under the influence of intoxicating liquors.

The fourth count of the indictment charged that appellee 'did feloniously kill and slay' the deceased as a direct result of his commission of a misdemeanor, viz., that he violated the provisions of Section 19.2 of the Baltimore County Code in that he bought, consumed, and possessed an alcoholic beverage on a public highway, he then being a minor.

Each of the first four counts of the indictment expressly characterized the offenses therein charged as constituting a 'common law misdemeanor-manslaughter.'

The fifth count of the indictment charged that appellee, while operating a motor vehicle 'unlawfully in a grossly negligent manner' caused the death of the decedent. This court of the indictment was expressly based upon Section 388 of Article 27 of the Maryland Code (1967 Repl.Vol.), which provides, in pertinent part, as follows:

'Every person causing the death of another as the result of the driving, operation or control of an automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle in a grossly negligent manner, shall be guilty of a misdemeanor to be known as 'manslaughter by automobile, motor vehicle, motorboat, locomotive, engine, car, streetcar, train or other vehicle,' and the person so convicted shall be sentenced to jail or the house of correction for not more than three years, or be fined not more than $1,000.00 or be both fined and imprisoned. * * *'

The sixth court of the indictment is not here pertinent.

On March 27, 1967, appellee filed a motion to dismiss the first four counts of the indictment on the ground that each of these counts charged a violation of the common law, viz., 'misdemeanor, manslaughter by the operation of a motor vehicle'; and that as these misdemeanors now constituted a violation of Maryland's manslaughter by automobile statute (Section 388 of Article 27), the common law offenses were no longer applicable, having been repealed by the legislature as a dresult of the enactment of that statute.

On June 28, 1967, Judge W. Albert Menchine in the Circuit Court for Baltimore County, granted appellee's motion to dismiss, stating in a brief opinion accompanying his order that under the common law, a showing of gross negligence was the main requirement for conviction of involuntary manslaughter; and that as none of the four counts alleged either an intention or purpose to harm in the operation of a motor vehicle, or the existence of gross negligence, such counts were not legally sufficient to charge a common law offense. The State has appealed from that order. ¹

The State contends that involuntary manslaughter at common law consisted of an unintentional killing while 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. More particularly, it differentiates the two classes of involuntary manslaughter by characterizing the first class as comprising all those cases wherein the defendant has caused the death of another as a direct and proximate result of doing an unlawful act not amounting to a felony, i. e., a misdemeanor (misdemeanor-manslaughter). As to this category of involuntary manslaughter, the State urges that the existence of negligence is not in element of the offense; that the doing of an unlawful act, which is malum in se or which if malum prohibitum, was in violation of a statute provided to prevent injury to the person, constitutes involuntary manslaughter irrespective of the existence of negligence. The State identifies the second distinct class of involuntary manslaughter as comprising those cases where the defendant, while doing a lawful act in a grossly negligent manner, kills.

It is the State's position the the common law misdemeanor-manslaughter rule is applicable in Maryland and has not been revised, amended or repealed by the manslaughter by automobile statute (Section 388), which it contends applies only to a case where the defendant is charged with an unintentional killing in the course of doing a lawful act in an unlawful manner, i. e., driving a motor vehicle in a grossly negligent manner. It is upon this premise that the State maintains that the first four counts of the indictment properly charged the offense of common law manslaughter in that the appellee operated his vehicle in violation of the law in the four particulars set forth in counts one through four of the indictment; that the first three of these are mala in se, but even if mala prohibita, they were violations of statutes calculated to prevent injury to the person.

The appellee, on the other hand, urges that the common law crime of involuntary manslaughter where homicide was the unintentional result of an automobile accident has been repealed by Section 388, and that all cases involving the unintentional killing of a person by an automobile can only be prosecuted under the manslaughter by automobile statute; and that in such prosecutions the State carries the burden or proving gross negligence in order to obtain a conviction.

Manslaughter is a common law offense and a felony in Maryland; it may be voluntary or involuntary, depending upon the requisite intent, and since the crime is not defined by statute, it is afforded its common law meaning in this State. Connor v. State, 225 Md. 543, 171 A.2d 699, 86 A.L.R.2d 892; Chase v. Jenifer, 219 Md. 564, 150 A.2d 251. By Section 387 of Article 27 of the Maryland Code, manslaughter, whether voluntary or involuntary, is punishable by a term of imprisonment not exceeding ten years. The crime of manslaughter by automobile created by Section 388 is a separate statutory misdemeanor, unknown to the common law, and is punishable under the statute by a designated fine and/or imprisonment in jair or the house of correction for a term not to exceed three years. See Connor v. State, supra.

Involuntary manslaughter at common law has been generally defined as the killing of another unintentionally and without malice (1) in doing some unlawful act not amounting to a felony, ² or (2) in negligently doing some act lawful in itself, or (3) by the negligent omission to perform a legal duty. See 1 Warren on Homicide (Perm.Ed.1938), 420, 421; 26 Am.Jur. Homicide, Secs. 18, 44; 40 C.J.S. Homicide § 55, and cases therein cited. To this basic definition other authorities add the qualification, as to the first class of involuntary manslaughter, that the unlawful act be malum in se, and not merely malum prohibitum, and as to the second and third classes of the offense, that the negligence be criminally culpable, i. e., that it be gross. Clark and Marshall, Crimes (Sixth Ed.), Sections 10.04, 10.12-10.14; Perkins on Criminal Law, pp. 34, 57-61; Wharton's Criminal Law and Procedure (Anderson Ed.), Vol. 1, Section 289-292, 296, and cases therein cited.

It is well settle in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, or by negligently failing to perform a legal duty (the second and third classes of involuntary manslaughter above delineated), the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life. ³ State of Maryland v. Chapman, 101 F.Supp. 335 (D.C.Md.); Palmer v. State, 223 Md. 341, 164 A.2d 467; Chaig v. State, 220 Md. 590, 155 A.2d 684; Chase v. Jenifer, supra; Neusbaum v. State, 156 Md. 149, 143 A. 872. It is equally well settled that the Legislature, in enacting Section 388, making it a misdemeanor to cause the death of another as a result of operating an automobile 'in a grossly negligent manner,' intended to adopt this same standard of gross negligence (a wanton or reckless disregard of human life) as the minimum requirement to support a conviction for this statutory offense. Connor v. State, suprs; Litty v. State, 212 Md. 436, 129 A.2d 839; Thomas v. State, 206 Md. 49, 109 A.2d 909; Duren v. State, 203 Md. 584, 102 A.2d 277; Hughes v. State, 198 Md. 424, 84 A.2d 419; Montague v. State, 3 Md.App. 66, 237 A.2d 816.

It is likewise clear that the Maryland cases have generally recognized that a charge of involuntary manslaughter at common law could in some circumstances at least be based on the doing of an unlawful act. In Neusbaum v....