State v. Labonte, 168

• Decision Date: 02 September 1958
• Docket Number: No. 168,168
• Parties: STATE of Vermont v. John Edward LABONTE, Jr.
• Court: Vermont Supreme Court

Page 792

144 A.2d 792

120 Vt. 465

STATE of Vermont v. John Edward LABONTE, Jr.

No. 168.

Supreme Court of Vermont.

Sept. 2, 1958.

Margaret Lillie, State's Attorney, Bennington, for plaintiff.

George M. Fienberg, Bennington, for defendant.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN, and SHANGRAW, JJ.

HULBURD, Justice.

This was a criminal prosecution under V.S. 47, § 10283 for 'careless and negligent driving' so-called. At the conclusion of the State's evidence, the respondent moved for a directed verdict. The motion was granted and the State brings its exceptions here.

The question before us is whether the evidence as found in the record was sufficient to support a conviction for the crime charged. To answer this, we look first to the statute involved and then turn to the evidence.

V.S. 47, § 10283 reads as follows:

'Illegal Operation. A motor vehicle shall not be operated on a public highway, as defined in section 10,044, in a careless or negligent manner, nor upon a bet, wager, or race, nor for the purpose of making a record, nor in a manner to endanger or jeopardize the safety, life or property of a person.'

We are concerned here only with that part of the statute which forbids operation in a careless and negligent manner, there being no complaint that the respondent committed any of the other specified acts of illegal operation.

It is to be noted that the statute does not within itself define the words careless and negligent. Moreover, we do not have the situation which existed in Turner v. State, 65 Ga.App. 292, 16 S.E.2d 160, 161, where the prosecution was under a statute making it a misdemeanor to 'carelessly, or negligently set on fire * * * any woods'. Here the statute within itself did not define these words, but another section of the Georgia Code defined misdemeanor as being a 'violation of a public law, in the commission of which there shall be a union or joint operation of act and intention or criminal negligence'. Code Ga. § 26-201. In the present case we can find no supplemental statute which throws light on what the legislature meant by the words careless and negligent. This leaves us with the question of whether the legislature by the use of these words in the statute in question meant only ordinary negligence such as would allow a recovery in a civil action or whether criminal negligence was intended. If the latter, it would be incumbent upon the State to introduce evidence tending to show something more than ordinary negligence. It is only where the evidence tends to show a reckless disregard of the consequences or a needless indifference to the rights and safety of others that criminal negligence may be said to exist.

It has been said that 'criminality is not predicated upon mere negligence necessary to impose civil liability.' State v. Jones, 152 Me. 188, 191, 126 A.2d 273, 275. Some courts seem to go so far as to assume that where negligence has been made a violation of an obligation to the State i. e. a crime) it necessarily must be understood to be criminal negligence. Cf. Cooper v. State. 61 Okl.Cr. 318, 67 P.2d 981, 988. Perhaps this is an outgrowth of the traditional common law view that ordinarily intent is a necessary element of crime and that where intent is lacking, it must be supplied by such negligence as displays a reckless indifference to the lives and safety of others, that is to say, criminal negligence. See cases cited in a note found in 99 A.L.R. 756, 762. It would seem that there is at least some tendency for courts to revert to common law concepts and to read into a criminal statute the requirement of criminal negligence even where it is clearly not included within its plain language. Such an approach to a problem of this sort is unfortunate for it is now well settled that it is within the power of the legislature to declare an act criminal irrespective of the intent or knowledge of the doer of the act. See Wharton's Criminal Law and Procedure (1957) Vol. 1, p. 28 and cases cited; State v. Gilmore, 80 Vt. 514, 516, 68 A. 658, 16 L.R.A.,N.S., 786. Furthermore, the power of a legislature to define a crime based upon ordinary negligence has been recognized in numerous jurisdictions. Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56; Com. v. Godshalk, 76 Pa.Super. 500; State v. Hedges, 8 Wash.2d 652, 113 P.2d 530; Clemens v. State, 176 Wis. 289, 185 N.W. 209, 21 A.L.R. 1490; People v. Pociask, 14 Cal.2d 679, 96 P.2d 788.

It is noted in Wharton's Criminal Law and Procedure Vol. 3, p. 172, in discussing 'reckless Driving' statutes that, 'In a majority of jurisdictions, a reckless indifference to consequences of injury to another or to the property of another is an essential element but there appears to be a variance even as to this element, since some statutes may be worded so as to penalize driving in a manner which is no more than negligent.'

The word reckless does not appear in our statute nor even in its title. Cf. Neessen v. Armstrong, supra. The language which is found in the reckless driving statutes of most jurisdictions is entirely absent.

It is interesting to note in passing that the British Road Traffic Act, 1930, creates two offences: one for 'reckless driving' (§ 11) and another for driving 'without due care' (§ 12) the former carrying a heavier penalty than the latter.

In Healy v. Moore, 108 Vt. 324, 338, 187 A. 679, 685, this Court made a passing reference to our statute, and after quoting it said, '* * * and this is merely declaratory of the common law.' A statement to the same effect appears in Hunter v. Preston, 105 Vt. 327, 337, 166 A. 17. It may not be entirely clear whether these references were to the common law pertaining to negligence or to criminal negligence, but since the statements occur in civil cases, it is logical to assume that it was the former which the Court had in mind. Moreover the statement is consistent with what we believe has been the general understanding in regard to the Statute since its passage. This has been the first occasion that we have had to pass upon it directly in a criminal case and we hold that the words 'in a careless or negligent manner' as used in the Statute refer simply to ordinary negligence such as would impose civil liability and that to support a conviction thereunder there is not necessity for the State to produce evidence tending to show criminal negligence, as it is commonly defined. At the risk of belaboring the obvious, we wish to make it clear, however, that such negligence must be proved beyond a reasonable doubt. As was aptly pointed out by the State's Attorney in her argument, a prosecution of this sort differs somewhat from that in the ordinary case in that here it is for the jury to say both how the respondent drove and how the ordinary prudent man would have driven in the same circumstances. Since the latter, in the last analysis, is a matter of judgment, and since a conviction requires proof beyond a reasonable doubt, this requirement, while not raising the degree of negligence, does tend to make it necessary that the negligence be sufficiently clear and convincing to meet this measure of proof.

Having disposed of the statute, we now turn to the evidence to see whether in this case it was such as would have supported a conviction, that is, whether the trial court was in error in directing a verdict for the respondent.

The evidence introduced by the State tended to prove the following facts: The respondent, riding alone, was driving easterly toward Bennington...