Gambar halaman
PDF
ePub

(7 Boyce, 397)

STATE V. LONG.

(Court of Oyer and Terminer of Delaware. New Castle. Oct. 6, 1919.)

1. WITNESSES 393(3)-STATEMENTS AT CORONER'S INQUEST ADMISSIBLE FOR IMPEACH

MENT.

[blocks in formation]

WITNESSES QUESTION FOR JURY.

A requested instruction that the testimony of an actor-that is, the driver-is ordinarily presumed to be more trustworthy than that of a mere observer will be refused, as the jury must be the judges of the reliability of the witnesses and the value and weight of their testimony, having regard to the witnesses' oppor

8. CRIMINAL LAW 741(1)-WEIGHT OF EVIDENCE OF GOOD CHARACTER A QUESTION FOR THE JURY.

In a prosecution for manslaughter, testi-tunities for seeing, knowing, and remembering mony given by defendant at the coroner's in- the thing about which they testify. quest under oath, after being warned that any evidence might be used against him is admissible for the purpose of contradiction; Rev. Code 1915, § 1350, making such evidence admissible in case of death of witness, not applying.

2. HOMICIDE 35-ABSENCE OF MALICE DISTINGUISHING "MANSLAUGHTER" FROM MUR

DER.

"Manslaughter," a species of homicide, is the unlawful killing of another without malice, express or implied, and is either voluntary or involuntary; the distinction distinction between manslaughter and murder being the absence of malice in the offense of manslaughter.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Manslaughter.]

3. HOMICIDE 33, 34-VOLUNTARY AND INVOLUNTARY MANSLAUGHTER DEFINED.

"Voluntary manslaughter" occurs where one person kills another in the heat of passion, while "involuntary manslaughter" occurs where a person, in committing an unlawful act not felonious or tending to great bodily harm, or in committing a lawful act without proper caution or requisite skill, unguardedly or undesignedly kills another,

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Involuntary Manslaughter; Voluntary Manslaughter.] 4. HOMICIDE 62-DRIVER OF AUTOMOBILE AT EXCESSIVE SPEED, CAUSING DEATH OF PEDESTRIAN, GUILTY OF MANSLAUGHTER.

In a criminal prosecution, evidence of good character of the accused is to be taken in connection with all the other evidence and given such weight as the jury may think it entitled to. 9. CRIMINAL LAW 308, 561(1) PRESUMPTION OF INNOCENCE PREVAILS, UNLESS GUILT IS PROVED BEYOND "REASONABLE DOUBT."

In a prosecution for manslaughter, as in every criminal case, the defendant is presumed innocent until his guilt is proved to the satisfaction of the jury beyond a "reasonable doubt," which means, not a speculative or possible doubt, but a reasonable and substantial one, and in order to convict the state must prove beyond a reasonable doubt every material ingredient of the crime.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Reasonable Doubt.]

James F. Long was indicted for man-
slaughter. Verdict, not guilty.
PENNEWILL, C. J., and CONRAD and
HEISEL, JJ., sitting.

P. Warren Green and Frank L. Speakman,
Deputy Attys. Gen., for the State.
Philip L. Garrett and John F. Lynn, both
of Wilmington, for defendant.

The material facts appear in the charge of

Any one who, while driving his automobile the court. at a higher rate of speed than the law allows, [1] Long, the accused, was asked the folkills another, is prima facie guilty of negli-lowing question in cross-examination: gence, and such act will make the driver criminally liable, and guilty of manslaughter if the unlawful speed was the cause of death. 5. HOMICIDE

"I will ask you whether you did not state at the coroner's inquest, under oath, after first being warned that any evidence you might give 74-NEGLIGENT OPERATION OF would be used against you, in substance as folAUTOMOBILE, CAUSING DEATH, MANSLAUGH-lows: 'Before I got to the top of the hill I was making about twenty or twenty-five miles per hour.'

TER.

Though the driver of a motorcar was not running at a higher rate of speed than the law allows, yet he is guilty of manslaughter where he causes the death of another by gross negligence on his part.

6. HIGHWAYS 186 DUTY OF DRIVER IN OPERATION OF MOTOR VEHICLES.

[ocr errors][merged small]

Under Rev. Code 1915, § 4827, it is the duty of the opinion that that statute does not apof a driver of an automobile upon a public high-ply to the question now before the court, and way to run, not only at a rate of speed permis- we overrule the objection. sible under the law, but at such speed as an ordinarily prudent and careful man would use under the circumstances, having regard to the danger of the situation and the probability of injuring others.

Prayers for the State.

The court is requested to define manslaughter and its two classes. State v. Morahan, 7 Pennewill, 494, 77 Atl. 488; State v.

(108 A.)

Woods, 7 Pennewill, 499, 77 Atl. 490; State the death of the deceased.

Cases above

If the jury believe from the testimony that the defendant unintentionally, not realizing that he was doing so, exceeded the limit of speed prescribed by the statute, he ought not to be convicted of either a felony or a mis

v. Becker, 9 Houst. 411 (416), 33 Atl. 178; cited. State v. Lodge, 9 Houst. 542 (549), 33 Atl. 312; State v. Miller, 9 Houst. 564 (569), 32 Atl. 137; State v. Draper, 1 Houst. Cr. Cas. 531 (536); State v. Brown, 1 Houst. Cr. Cas. 539 (553); State v. Dugan, 1 Houst. Cr. Cas. 563 (573); State v. Trusty, 1 demeanor. State v. Hill, 2 Boyce, 540, 82 Pennewill, 319 (324), 40 Atl. 766; State v. Underhill, 6 Pennewill, 491 (495), 69 Atl. 880; State v. Jones, 2 Pennewill, 573 (575), 47 Atl. 1006; State v. Blackburn, 7 Pennewill, 479 (482), 75 Atl. 536.

Atl. 221; People v. Barnes, 182 Mich. 179, 148
N. W. 400.

That it is incumbent upon the state to satisfy the jury that the accident was caused by the excessive speed of the car, and would not have happened, in the circumstances disclosed by the testimony, if the car had been operated at a speed that was not excessive or reckless. People v. Barnes, 182 Mich. 179, 148 N. W. 400; Queen v. Pocock,

Also to define homicide by misadventure. State v. Miller, 9 Houst. 564 (568), 32 Atl. 137; State v. Lodge, 9 Houst. 542, 33 Atl. 312; State v. Blackburn, 7 Pennewill, 479 (481), 75 Atl. 536; State v. Dugan, 1 Houst. Cr. Cas. 563; State v. Becker, 9 Houst. 5 Cox, C. C. 172, where Lord Mansfield said 411 (416), 33 Atl. 178; State v. Brown, 2 thatMarv. 380 (399), 36 Atl. 458.

That the attention of the jury be directed to the statute in relation to the legal rate of speed for motor vehicles (28 Del. Laws, 43), and particularly to the following provision: "But this rate of speed shall be reduced to one mile in five minutes at all curves, intersecting roads, in descending steep hills, and in passing other vehicles: Provided that nothing in this section shall permit any person to drive a motor vehicle at a greater rate of speed than is reasonable, having regard to the traffic, or so as to endanger the safety of any person or injure the property of any person."

That the jury be instructed that one who drives an automobile with great negligence, so the passenger is thrown out, and the resulting shock results in death, is guilty of manslaughter. State v. Block, 87 Conn. 573, 89 Atl. 167, 49 L. R. A. (N. S.) 913.

Prayers for the Defendant.

That the jury be instructed that the violation of the statute does not in itself constitute such an unlawful act as would render a person causing an undesigned death while in the performance thereof guilty per se. A violation of such a statute involves no moral turpitude, and therefore is merely malum prohibitum, and not malum in se. Commonwealth v. Adams, 114 Mass. 323, 19 Am. Rep. 362; Estell v. State, 51 N. J. Law, 182, 17 Atl. 118; State v. Goetz, 83 Conn. 437, 76 Atl. 1000, 30 L. R. A. (N. S.) 458; 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.

"Not only must the failure to comply with likewise of such failure by the owner, but the the speed regulations be shown, and knowledge death must be the immediate result of that failure."

Criminal negligence means such a degree of negligence as amounts to a flagrant and reckless disregard of one's own safety and a willful indifference to the person or life of others. To be criminal, the negligence must

be gross.
State v. Goetz, 83 Conn. 437, 76
Atl. 1000, 30 L. R. A. (N. S.) 458; People v.
Barnes, 182 Mich. 179, 148 N. W. 400.

A person's own memory of what he did or did not do is ordinarily presumed to be more trustworthy than that of a mere observer. Moore on Facts, § 705, and cases cited.

The actor usually knows better than the observer what he did or did not do, and his testimony is generally entitled to greater weight. Moore on Facts, §§ 397, 705, and 783, and cases cited; The Rhode Island, 20 Fed. Cas. 651, column 2 (No. 11,743); Huntress v. Railroad Co., 66 N. H. 185, 34 Atl. 154, 49 Am. St. Rep. 600.

If the jury believe from the testimony that the automobile which the defendant was operating was, at or immediately before the moment of the accident, struck from behind by another automobile, and that such previous collision brought on the collision 'mentioned in the indictment, they should find that the collision mentioned in the indictment was a mere misadventure, so far as the defendant is concerned, and their verdict should be not guilty.

Even though the court should hold that That the court instruct the jury in respect the prosecution may be based upon the theo- to character evidence. Daniels v. State, 2 ry that the defendant, at the time of the ac- Pennewill, 586 (598), 48 Atl. 196, 54 L. R. A. cident, was violating a statute of the state 286; State v. Thomas, 2 Boyce, 24, 78 Atl. of Delaware limiting the speed of automo- 640. biles, it is incumbent upon the state to prove beyond a reasonable doubt that the cause of the accident was the excessive speed of the car, and that the defendant thereby caused

It is incumbent upon the state to prove, beyond a reasonable doubt, either a specific evil intent on the part of the defendant, or else such facts and circumstances as will

warrant the jury in finding the existence of [means by the charge that the defendant is an evil intent at the time of the accident. guilty of involuntary manslaughter because That the jury may find the defendant guilty of an assault only.

PENNEWILL, C. J. (charging the jury). The defendant is charged in this case with the crime of manslaughter. It is alleged in the indictment that on the 27th day of August of the present year, on the Kennett Pike in Christiana hundred, in this county, he ran his automobile at a greater rate of speed than that allowed by the statute, and while so doing ran into and collided with a certain other automobile driven by one Shannon, and by reason thereof feloniously and willfully made an assault upon one Margaret Dyer, who was riding in the car driven by the defendant, whereby she was thrown upon the ground and received injuries which resulted in her death.

The defendant denies that he was driving his automobile at the time of the collision at a rate of speed in excess of that permitted by the statute, or at a rate of speed, or in a manner, that was dangerous to others upon the highway, and therefore claims that he was not guilty of any negligence that caused the death of the child, Margaret Dyer. The defendant contends that the death of the child resulted from his car being struck from behind by another car, and that, therefore, it was by misadventure, and not from any criminal act or negligence.

In the collision of the two cars, Margaret Dyer and all the other occupants of defendant's car were thrown out, except himself, and a young child was thrown from Shannon's car.

The indictment being for manslaughter, it is necessary for us to define as clearly as we can what constitutes that crime.

[2] Manslaughter is termed homicide and is so called because it is the killing of a human being; but it is not malicious homicide, and is, therefore, unlike murder, which contains malice. It is the unlawful killing of another, without malice, express or implied, and is either voluntary or involuntary.

he killed Margaret Dyer in committing the unlawful act of running his car at a greater speed than the law allows, or in the performance of the lawful act of running his car within the speed limit, but without proper caution and care, and in disregard of the safety of others.

Homicide by misadventure is the accidental killing of another where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct.

[4, 5] It is unlawful in this state to run an automobile upon any public street or highway, where the buildings are of greater distance apart than 100 feet, at a greater rate of speed than 25 miles an hour, or, as stated in the indictment and the statute, at a greater rate of speed than a mile in 2 minutes and 24 seconds.

Such being the law, we say to you that any one who, while driving his automobile at a higher rate of speed than the law allows, kills another by striking him with (or throwing him from) his car, is prima facie guilty of negligence; and such act will make the driver criminally liable and guilty of manslaughter, if it is clearly shown by the evidence that such unlawful speed was the cause of the death. But even though the jury should not be satisfied that the driver was running his car at a higher rate of speed than the law allows, he would, nevertheless, be guilty of manslaughter if the death was caused by gross negligence on his part, that is, by a wanton, careless and reckless disregard of the rights and safety of others.

And we may say that the law we have stated for your guidance applies, whether the person killed is thrown from another car that was struck or from the car driven by the defendant.

And we further instruct you that if the death resulted from the unlawful rate of speed, or from the careless and reckless driving of the car, the fact that the killing was unintentional on the defendant's part does not excuse him. It makes no difference how unintentional it may have been, if the death was caused by the defendant's criminal and gross negligence. As we have already told

[3] Voluntary manslaughter is where one kills another in the heat of blood, and usually occurs in fighting or under great provocation. you, involuntary manslaughter exists when This may be termed the common kind of manslaughter and is probably somewhat familiar to you.

Involuntary manslaughter, which is less common and perhaps less familiar, is where a person in committing an unlawful act, not felonious or tending to great, bodily harm, or in committing a lawful act without proper caution or requisite skill, unguardedly or undesignedly kills another. Manslaughter may arise, as you see, from an unlawful act, or from a lawful act done without proper caution or skill.

a person, in committing an unlawful act, or in committing a lawful act without proper caution or skill, undesignedly kills another. That is the definition of manslaughter.

[6] It is the duty of the driver of an automobile on the public highway to run not only at a rate of speed permissible under the law, but at such speed as an ordinarily prudent and careful man would use under the circumstances, having regard at all times to the danger of the situation and the probability of injuring others. The statute governing the speed of automobiles provides that noth

(108 A.)

"shall permit any person to drive a motor vehi- | satisfied from the evidence, beyond a reasoncle at a greater speed than is reasonable, having able doubt, of the guilt of the accused, you regard to the traffic, or so as to endanger the should not hesitate for any reason to find him safety of any person or injure the property of guilty, but if you are not so satisfied of his any person." 28 Del. Laws, 43; Rev. Code, 8 guilt, it is just as important that you should 4827. render a verdict of not guilty. Verdict, not guilty.

[7] The defendant has asked the court to charge you that a person's own memory of what he did or did not do, is ordinarily presumed to be more trustworthy than that of a mere observer; that the actor (meaning the driver of an automobile) usually knows better than the observer what he did or did not do, and his testimony is generally entitled to greater weight on that account. We de cline to so charge, but say to you that the jury must be the judges of the reliability of the witnesses and of the value and weight of their testimony, having regard, among other things, to their opportunities for seeing, knowing and remembering the things about which they testified.

[8] Evidence of good character of the accused is to be taken in connection with all the other evidence and given such weight, under all the facts and circumstances, as the jury think it is entitled to.

Now, gentlemen, summarizing and simplifying, as much as we can, the law already stated, we say: If you believe from the testimony that at the time of the collision of the two automobiles the defendant was driving his car in violation of the statute that governs the speed of automobiles, and that such act was the cause of the death of Margaret Dyer, your verdict should be guilty. And even if you do not believe that the defendant, at the time of the collision, was running his car in violation of said speed statute, but are satisfied that the child's death was caused by gross negligence on the part of the defendant, your verdict should be guilty. If you are not satisfied that the defendant is guilty of manslaughter, but believe that he is, under the evidence, guilty of an assault, you may find him guilty of assault only.

[9] And we further instruct you that in this, as in every criminal case, the defendant is presumed to be innocent until his guilt is

proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoner it is incumbent upon the state to prove beyond a reasonable doubt every material ingredient of the crime charged. If, therefore, after carefully considering all the evidence in the case, you should entertain a reasonable doubt of his guilt, your verdict reasonable doubt of his guilt, your verdict should be not guilty. But such a doubt must not be merely a vague, speculative or possible doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all the evidence.

It is hardly necessary to say to men of your intelligence and fairness that this is an important case, both to the defendant and the people, and that the jury should be influenced in reaching their verdict by the law and the evidence, and by nothing else. If you are

[blocks in formation]

2. SCHOOLS AND SCHOOL DISTRICTS 10 VALIDITY OF GENERAL LAW FOR ESTABLISHMENT OF UNIFORM SCHOOL SYSTEM.

A general law providing for the establishment and maintenance of a system, uniform or otherwise, of free public schools, and made apincorporated or otherwise, without the consent plicable to every school district, town, or city, and even against the will of such district, town, or city, if properly enacted would be a valid exercise of the mandate of Const. art. 10, § 1, and would overrule provisions of separate acts relating to school districts and incorporated boards of education which are mere agencies of the state in executing the governmental function of providing free schools.

3. STATUTES 21 CREATION OF SCHOOL

-

DISTRICTS AND BOARDS OF EDUCATION NOT REQUIRING TWO-THIRDS VOTE OF LEGISLATURE.

School districts created by special acts of the Legislature, and districts and boards of education created by the School Code (30 Del. Laws, c. 157), adopted pursuant to Const. art. 10, § 1, held not acts of incorporation, within Const. art. 9, § 1, requiring a two-thirds vote of the Legislature to enact any general incorporation law or any special act of incorporation, being neither private nor municipal corporations, but public quasi corporations.

[ocr errors]

4. CONSTITUTIONAL LAW mm 65 SCHOOL CODE SUBJECT TO ACCEPTANCE BY DISTRICT NOT A DELEGATION OF LEGISLATIVE POWER. The School Code (30 Del. Laws, c. 157), adopted pursuant to Const. art. 10, § 1, held not unconstitutional as a delegation of legislative power to school districts, the power given districts to accept its provisions being an exercise of power by agencies of the state, and not a delegation of legislative power, section 121 merely granting option to certain special school districts to accept the law, already in force and effective as to all districts.

5. TAXATION 43-SCHOOL CODE NOT IN

VALID AS NECESSITATING TAXES NOT UNIFORM.

The School Code (30 Del. Laws, c. 157), enacted pursuant to Const. art. 10, § 1, held not invalid as requiring the assessment of capita

tion taxes not uniform in the county in which levied, and property taxes not uniform in the territorial limits of the authority levying them; the taxes being uniform in each school district, which complies with the constitutional requirement of uniformity.

6. CONSTITUTIONAL LAW

[Chancellor and Judges touching its constitutionality. The said section provides:

Governor shall require it for public information, "The Chancellor and Judges, whenever the or to enable him to discharge the duties of his office with fidelity, shall give him their opinions 284(2)-VALIDI-in writing touching the proper construction of any provision in the Constitution of this state or of the United States, or the constitutionality of any law enacted by the Legislature of this state."

TY OF SCHOOL CODE PROVIDING FOR TAXES
BASED ON ASSESSMENT WITHOUT RIGHT OF

APPEAL.

The School Code (30 Del. Laws, c. 157), enacted pursuant to Const. art. 10, § 1, held not invalid because providing for the collection of taxes based on a county assessment previously made, and from which no right of appeal is given; any one taxable having opportunity to make complaint to the assessor when the assessment is made.

7. CONSTITUTIONAL LAW mm 93(1), 143 SCHOOL CODE NOT DIVESTING VESTED RIGHTS OR IMPAIRING OBLIGATION OF CONTRACTS.

Omitting the formal parts the Governor did on the third day of September, A. D. 1919, present the following communication to the Chancellor and Judges.

"The General Assembly at its recent session passed on Act entitled 'An Act to repeal Chapter 71 of the Revised Code of the State of Delaware entitled "Free Schools" and to provide a new chapter 71 entitled "Public Schools."' On April 2, 1919, the said Act received the official approval of the Governor, and the administration, according to the provisions made, began. "There has now developed a controversy as to the validity of said Act, which is seriously affecting the interests of education. In view of this popular interpretation and the controversy arising therefrom, it has been decided by those 8. STATUTES 107(8), 122(3)-SCHOOL CODE officially interested, that the interests of the

The School Code (30 Del. Laws, c. 157), enacted pursuant to Const. art. 10, § 1, held not invalid as divesting vested rights or impairing the obligation of contracts within the federal Constitution, as it takes from the owner of school bonds no security he enjoyed before its passage.

State can well be served by an expression of opinion from the Judges relative to the consti

NOT INVALID AS TREATING OF SUBJECT NOT IN TITLE. The. School Code (30 Del. Laws, c. 157), en-tutionality of the Act. acted pursuant to Const. art. 10, § 1, though dealing in a general way with the care, attention, and treatment of dependent children brought into the state, held not invalid as treat ing of two "subjects" within the meaning of the Constitution, one of which is different from the subject of free public schools embraced in the title.

9. COURTS 208-OBLIGATION OF CHANCELLOR AND LAW JUDGES IN INFORMING GOVERNOR AS TO CONSTITUTIONALITY OF STATUTE. The only thing the chancellor and law judges are called upon to do when replying to an inquiry of the Governor as to the constitutionality of a statute is to express to him their opinion on the constitutionality of the statute.

Communication from the Governor requesting the opinions of the Chancellor and Judges touching the constitutionality of the new School Code, recently enacted by the Legisla

ture.

Robert G. Harman, Levin Irving Handy, and John W. Huxley, Jr., City Sol., all of Wilmington, and James H. Hughes, of Dover, for opponents.

Henry Ridgely, of Dover, William S. Hilles of Wilmington, and David J. Reinhardt, Atty. Gen. (Caleb E. Burchenal, of Wilmington, and John B. Hutton, of Dover, filed briefs), for the Code.

The Legislature, at its regular biennial session in 1919, enacted Chapter 157, Volume 30, Laws of Delaware, 352, known as the School Code. A controversy arising as to the validity of the act, the Governor, under Rev. Code

"Therefore, at the request of those officially responsible for the administration of our Public Schools, I am submitting said Act to you for your review and ask that you render your opinion relative to its validity and constitutionality. "It is, I am sure, under the serious circumstances now existing, needless for me to suggest that your deliberations be made at as early date as possible."

The Chancellor and Judges replied, as follows:

"The Chancellor and Law Judges of the State have received your communication, requesting their opinion respecting the constitutionality of an Act of the Legislature, passed at the last session, and commonly known as the 'School Code.'

"In view of the great and general interest felt in the question you have submitted, we think our opinion should not be based upon a

hasty and imperfect consideration of the matter, but should be reached after a careful examination of the statute and the law applicable to the question raised. To that end we have concluded that at least a week's time is essential, and that an opportunity should be given to any attorneys who may desire to argue before us either side of the question.

Room, at Dover, on Wednesday, September 10th, "We will meet again in the County Court 1919, at eleven o'clock, a. m., and will be pleased to hear and consider any arguments that may then be submitted either orally or in writing.

prefer to determine the question in a regular ju"The Chancellor and Law Judges would much prefer to determine the question in a regular judicial proceeding, but they realize that such a proceeding would involve more delay than would be justified, in view of the necessity for a rea

« SebelumnyaLanjutkan »