State v. Jones

• Decision Date: 26 October 1956
• Citation: 152 Me. 188,126 A.2d 273
• Parties: STATE of Maine v. Kenneth P. JONES.
• Court: Maine Supreme Court

Page 273

126 A.2d 273

152 Me. 188

STATE of Maine v. Kenneth P. JONES.

Supreme Judicial Court of Maine.

Oct. 26, 1956.

William Fenton, Bar Harbor, for plaintiff.

Silsby & Silsby, Ellsworth, for defendant.

Before FELLOWS, C. J., WILLIAMSON, WEBBER, BELIVEAU, and TAPLEY, JJ., and MURRAY, A. R. J.

TAPLEY, Justice.

On exceptions. The respondent was tried on an indictment charging that he, while being then and there on a hunting trip, did feloniously, negligently and carelessly shoot and wound a human being. The case was tried at the December Term, 1955 of the Superior Court within and for the County of Hancock. Upon conviction by the jury the respondent was sentenced. The case is before us on the following exceptions:

1. To a portion of the presiding Justice's charge to the jury which, in substance, charged civil negligence and carelessness.

The exception portion of the charge also contains instruction by the Court that contributory negligence on the part of the victim is not an issue.

2. The respondent requested the following instruction which was denied:

'Criminality is not predicated upon mere negligence necessary to impose civil liability, but upon that degree of negligence or carelessness which is denominated gross or culpable.'

3. To the refusal of the presiding Justice to direct a verdict of not guilty.

The basis of the prosecution is found in the provisions of Sec. 146, Chap. 37, R.S.1954, the pertinent portion of which reads as follows:

'Whoever, while on a hunting trip or in the pursuit of wild game or game birds, negligently or carelessly shoots and wounds, or kills any human being, shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 10 years.'

The first two exceptions concerning the charge as to negligence and carelessness and the refusal to instruct as to 'criminal negligence' so-called, brings in sharp focus the interpretation of the words 'negligently or carelessly' as used in the statute upon which the respondent was prosecuted and convicted.

The respondent claims prejudice and aggrievement because the jury was instructed on civil negligence and carelessness, while the State argues that such definitions were legally proper in light of their use in the statute. There can be no question that we are dealing with a penal statute. According to the terms of this statute, a person may be convicted for negligently or carelessly shooting and wounding a human being, such as in this case, or he may be convicted of homicide.

There would be no problem if the prosecution under Sec. 146, Chap. 37, R.S.1954, was for the killing of a human being by the respondent while he was 'then and there on a hunting trip.' The instructions of the presiding Justice would, no doubt, have followed the well accepted and recognized rule of gross or culpable negligence which it is necessary to establish in a conviction of involuntary manslaughter. State v. Ela, 136 Me. 303, 8 A.2d 589; State v. Hamilton, 149 Me. 218, 100 A.2d 234. Under the circumstances of this case we are dealing with a statutory creation which in effect defines a crime and provides punishment therefor. The essential element of the crime to be proven beyond a reasonable doubt is that the respondent did negligently or carelessly shoot and wound a human being.

The statute is not only penal but, by the punishment it prescribes, puts itself in the category of a felony statute. In order to approve the instruction of the presiding Justice of civil negligence, we must say that this peanl statute is divisible by interpretation to the extent that the homicidal portion requires instructions on gross and culpable negligence, while the crime of a lesser degree is committed by a person who is guilty of civil negligence and carelessness.

We start with the premise that we are considering a statute which defines a crime and provides punishment for its violation; in other words, it is a 'criminal statute.' The attorney for the respondent cites with confidence the case of State v. Wright, 128 Me. 404, 148 A. 141. The Wright case treats of the crime of manslaughter and holds that the degree of negligence or carelessness in such a case must be gross or culpable. The prosecution in the Wright case was based on Sec. 3, Chap. 129, R.S.1930, the pertinent provisions of which are identical with the statute involved in the instant case. Sec. 146, Chap. 37, R.S.1954. The late Chief Justice Sturgis wrote, 128 Me. on page 405, 148 A. on page 142 'At the trial, the prosecution relied upon involuntary manslaughter and offered evidence to prove that the respondent, while on a hunting trip, negligently shot the deceased as he rode by on horseback.'

and following this statement he said:

'Criminality is not predicated upon mere negligence necessary to impose civil liability, but upon that degree of negligence or carelessness which is denominated gross or culpable. * * * In his charge to the jury, the presiding justice inadvertently failed to observe this distinction between civil and criminal negligence, instructing the jury to measure the respondent's guilt by the rules of negligence applicable only to civil cases.'

The interesting portion of this quote, insofar as the instant case is concerned, is not the degree of negligence or carelessness determined to be necessary in the manslaughter case in which these elements were involved but rather the reference to 'criminality is not predicated upon mere negligence necessary to impose civil liability' and 'the presiding Justice inadvertently failed to observe this distinction between civil and criminal negligence'. (Emphasis ours.) Turner v. State, 65 Ga.App. 292, 16 S.E.2d 160, 161. This case involved a statute prohibiting any person from unlawfully, carelessly or negligently setting fire to woods, land or marshes thereby causing injury to others and further providing that such acts shall be termed misdemeanors. The Court determined that the words "carelessly or negligently" as used in the statute meant criminal negligence. In defining criminal negligence the Court said:

"Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Criminal Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others and a reasonable foresight that injury would probably result.' Cain v. State, 55 Ga.App. 376, 190 S.E. 371, 372.'

The Legislature in enacting Sec. 146 of Chap. 37, R.S.1954, has created a statute which makes the negligently or carelessly shooting and wounding of a human being a crime. It has without equivocation placed negligent and careless acts under the provisions of the statute as criminal acts without specifying the degree of negligence and carelessness. We must bear in mind that the statute concerns a crime and not civil liability; that the punishment indicates the crime a felony and not a misdemeanor; that a person charged with a violation of this statute is entitled to all the protection afforded him by the rules of criminal procedure. When the presiding Justice delivered his charge to the jury he instructed that the State must prove its case beyond a reasonable doubt and also that any contributory negligence on the part of the respondent was not 'at issue here as such.' These instructions were entirely proper, this being a criminal case and involving negligence. He then departed from the criminal aspect of the case and instructed the jury on civil negligence which in effect permitted the jury to return a criminal verdict based on a criminal statute with instructions of a civil nature defining the criminal act.

The statute does not within itself define the words negligence or carelessness. They are words synonymous in meaning.

There are many cases defining the word 'negligence' with such superlatives as gross, culpable, wanton, slight, ordinary, civil and criminal. We have seen that in Maine, negligence in involuntary manslaughter cases must be gross or culpable, State v. Ela, supra, and there exists a distinction between civil and criminal negligence, State v. Wright, supra. People v. Pociask, Cal.App., 91 P.2d 199, at page 203 'Negligence assumes countless forms and occurs in all walks of life and human endeavor. Generally speaking, when actionable, it is a violation of private rights and injuries for which there is a remedy only by civil action. That the legislature has the power to declare negligence the basis and subject-matter of a crime there can be no question. When so declared such negligence becomes criminal.'

State v. Lancaster, 208 N.C. 349, 180 S.E. 577, at page 578:

'In recent decisions, this court has definitely and unequivocally declared that in criminal cases involving negligent injuries and killings that the difference between culpable and criminal negligence and civil negligence must be observed and applied in the trial.'

Cooper v. State, 61 Okl.Cr. 318, 67 P.2d 981, at page 988:

'Negligence is criminal because it constitutes a violation of an obligation to the state.'

We are considering a penal statute and, what is more, a felony statute. The rule of strict construction is applicable. Smith v. State, 145 Me. 313, ...