State v. McVay

• Court: Rhode Island Supreme Court
• Writing for the Court: BARROWS, J.
• Citation: State v. McVay, 47 R.I. 292, 132 A. 436 (R.I. 1926)
• Decision Date: 03 March 1926
• Docket Number: Nos. 6139-6141.,s. 6139-6141.
• Parties: STATE v. McVAY et al. (three cases).

132 A. 436

STATE

v. McVAY et al. (three cases).

Nos. 6139-6141.

Supreme Court of Rhode Island.

March 3, 1926.

Certified from Superior Court, Providence and Bristol Counties.

George W. McVay and John A. Grant were indicted as principals, and George J. Kelley as accessory before the fact, for manslaughter.

On certification of question of law before trial. Question certified answered.

Charles P. Sisson, Atty. Gen., and Oscar L. Heltzen, Asst. Atty. Gen., for the State.

Fitzgerald & Higgins and William H. Camfield, all of Providence, for defendant Kelley.

BARROWS, J. Heard on a certification of a question of law before trial. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer of the steamer Mackinac, as principals, and against Kelley, as accessory before the fact. The steamer carried several hundred passengers from Pawtucket to Newport via Narragansett Bay. The boiler producing the steam by which the vessel was propelled burst near Newport and many lives were lost. The present indictments are for causing the deaths of three persons killed by escaping steam after the explosion of the boiler.

Demurrers, on grounds that the indictments improperly combined a charge of assault and negligence and that there was an improper joining of principal and accessory before the fact, were overruled. Two additional grounds of demurrer set up by defendant Kelley were not decided but were deemed of such doubt and importance that the question raised by them was certified to this court for determination under General Laws 1923, c. 348, § 5.

We are not now concerned with the correctness of the lower court's rulings on the demurrers. Exceptions to those rulings have been taken and the defendants' rights reserved. Our present question relates solely to Kelley's grounds of demurrer which were not acted upon. The same question is raised upon each indictment. That question is:

"May a defendant be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence as set forth in the indictment?"

That the indictment charges manslaughter against the captain and engineer as a result of criminal negligence connected with the operation of the ship's boiler for present purposes is not disputed. Neither is there dispute as to the meaning of accessory before the fact. He is "one who, being absent at the time the crime is committed, yet procures, counsels, or commands another to commit it." 1 Bouvier, Law Dict. (Rawle) 100; 1 Archbold, Cr. Prac. & Proc. p. 65. In the first count the negligence charged is the "wanton and willful" creation of any steam in a boiler known to be worn, corroded, defective, and unsafe, as a result whereof an explosion occurred killing a passenger. The charge against Kelley as accessory is that "before said felony and manslaughter was committed," he did, at Pawtucket, "feloniously and maliciously aid, assist, abet, counsel, hire, command and procure the said George W. McVay and John A. Grant, the said felony and manslaughter in manner and form aforesaid to do and commit." The latter is substantially the language applied to Kelley as accessory in the other three counts. The second count of the indictment charges knowledge of the strength and capacity of the boiler on the part of the principals and negligence in developing more steam than the boiler could safely hold. The third count charges a lack of reasonable care in generating steam in a boiler known to be so worn, etc., as to be unsafe, and the fourth count charges that defendants, having control of generating steam, and knowing the boiler to be defective, so disregarded their duty that the explosion followed.

The state, substantially adopting the definition of manslaughter as given in Wharton on Homicide (3d Ed.) p. 5. defines it as: "The unlawful killing of another without malice either express or implied." The state further refers to the charge in the indictment as "involuntary manslaughter; that is, the killing of another without malice and unintentionally in negligently doing an act lawful in itself and in the negligent omission to perform a legal duty." Because the manslaughter charge is "without malice" and "involuntary," Kelley contends that he cannot be indicted legally as an accessory before the fact. The argument is that manslaughter, being a sudden and unpremeditated crime, inadvertent and unintentional by its very nature, cannot be "maliciously" incited before the crime is committed. Such is the view expressed by text-writers, decision or dicta in 1 Hale, P. C. 437, 615, 616; Hawkins, P. C. c. 30, § 2, manslaughter; Goff v. Byby, 2 Cro. Eliz. 540; Bibeth's Case, 4 Cox Rep. 43b; 1 Archbold, Grim. Prac. & Proc. (8th Ed.) pp. 65, 66; 4 Blackstone, Commentaries, 36 and 191; State v. Kinchen, 52 So. 185, 126 La. 39 (1910); Adams v. State, 65 Ind. 565; Wharton on Homicide, § 59, pp. 75, 76; 13 R. C. L. § 25. p. 726; State v. Kennedy, 95 S. E. 350, 109 S. C. 141 (1918); State v. Robinson, 41 P. 51, 902. 12 Wash. 349 (1895); Bowman v. State (Tex. Cr. App.) 20 S. W. 558 (1892). In most of these citations a charge of murder was under consideration, and the theory was that, after a conviction for manslaughter was had, there could be no accessory before the fact. Some of these authorities state broadly that there can be no accessory before the fact in manslaughter, giving the reasons now urged by Kelley.

While every one must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, we do not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor vehicle laws or administration of drugs to procure an abortion. 29 C. J. § 136, p. 1149. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. 29 C. J. § 141, p. 1154. There is no inherent reason why, prior to the commission of such a crime, one may not aid, abet, counsel, command, or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides. 1 R. C. L. § 24, p. 146. 29 Corpus Juris, § 38, p. 1067, says: "At common law there may be accessories before the fact to involuntary manslaughter." Cases considering the question before us are Queen v. Smith & Taylor, 2 Cox, Cr. Cas. 233 (1847) quære; Gaylor's Case, 7 Cox, Cr. Cas. 253 (1857); Russell on Crimes (7th Eng. and 1st Canadian Ed.) 119, 779, 780; Rex v. Russell, 1 Moody, Cr. Cas. 356; Mathis v. State, 34 So. 287, 45 Fla. 46, 69; Commonwealth v. Adams, 127 Mass. 15 (1879); State v. Coleman, 5 Port. (Ala.) 32 (1837); State v. Hermann, 23 S. W. 1071, 117 Mo. 629; Stipp v. State, 11 Ind. 62 (1858) quære; Rex v. Brooks, 9 S. C. R. 13; 1 Bishop on Cr. L. (8th Ed.) § 678, pp. 412, 413. The latter states:

"Manslaughter does not commonly admit of an accessory before the fact, because when the killing is of previous malice, it is murder. This is the ordinary doctrine yet probably there may be manslaughter wherein this is not so, as, if one should order a servant to do a thing endangering life yet not so directly as to make a death from the doing murder, it might be manslaughter—then, why should not the master be an accessory before the fact in the homicide?"

Decisions in the above cases pro and con are sometimes confusing because of failure to keep clear the difference in popular and legal meaning of the words "malice" and "involuntary." In a popular sense "malice" means hatred, ill will, or hostility to another; in law it means "the state of mind manifested by an intent to commit an unlawful act against another." Webster's...