§ 127. Not every negligent act is necessarily indictable. The following incidents, however, may be noticed as involving indictability: Tests of indictable negligence. (1) Infractions of police order.-By statute, and sometimes by common law, specific duties become incumbent on all citizens. For non-performance of such duties, unless another special remedy be provided, an indictment may lie.' (2) Imperfect discharge of official duty.-Wherever a specific duty is imposed on a public officer, there a negligent defect in the discharge of this duty, when inflicting injury on an individual, is indictable.2 (3) Omission to discharge specific duty assumed or imposed by law. As we will presently see, this kind of negligence, when followed by injury, is indictable.3 (4) Meddling with dangerous agencies. It is the duty of all men to be cautious in dealing with dangerous agencies; and whoever, by carelessness in handling such agencies, injures another, is indictable.* § 128. Interesting questions may arise when malice and negligence (or dolus and culpa) concur in a particular transaction. This may happen as follows: Concur rence of malice and negli gence. (1) When there are two successive acts of the same person, in the first of which there is a criminal intent which fails of execution, and in the second of which, without the intent to effect it, the object designed in the first act is effected. A., for instance, believes he has killed B., and casts him hastily into the water, to conceal the body, by which act, and not by the prior wounds, B. is killed. If the second act is to be viewed as a continuation of the first, then the death is to be imputed to the malice pervading the entire act. It is, however, conceivable that there is no such continuity. It may be that the original wound is struck in excitement; that the assailant, when the transaction is over, actually believes that the assailed is dead; and that subsequently the drowning of the body is in cool blood, after the heat of the contest is over, and with the intention only of putting the body out of sight. In such case the first act would be indictable as an attempt to kill; the second, as a negligent homicide." 1 Supra, & 24. 2 See infra, ?? 1563, 1568. 3 Infra, 130 et seq., 156. See as to physicians, infra, ¿ 362. See Infra, 22 329, 370. 5 See infra, 155. kills. constitute (2) It may be, however, that an unexpected and unintended consequence is coupled in the same act with a malicious design. A man, for instance, designs to seriously hurt, and unintentionally In such cases, if the hurt he designs is a felony, the killing, by statute, if not by common law, may be murder; but it is otherwise if the intention is merely to inflict a slight hurt not a felony.1 § 129. Negligent co-operation cannot constitute accessaryship in a malicious act, although a party occupying an official Negligence situation may be liable for negligence in the non-arrest of cannot a criminal. To constitute the offence of accessaryship accessarythere must be malice, and the malice cannot be inferred ship. in any case where the co-operation is purely negligent. On the other hand, to negligent acts there may be malicious accessaries; though, unless these acts are felonies by statute, all concerned, under the rule that in misdemeanors all parties are princip: ls, are to be treated as principals. A curious and interesting question arises where one person intentionally puts another in the position of doing a negligent act, as where fire-arms are mischievously placed in the hands of a negligent or inexperienced person, or when the superintendent of a railroad knowingly and maliciously places a locomotive under the control of a. engineer whom the superintendent knows to be incompetent. In such cases there is good ground for maintaining that the person thus originating the harm is liable for the consequences of the negligence of the immediate operator; and this is also the case when dangerous agencies are negligently left in the hands or in the way of incompetent persons.2 But with these exceptions, a party, who by negligence produces another's negligence, cannot, as we have seen, be chargeable with the consequences of the latter's negligence. Morally reprehensible, also, as may be he who by negligence induces another to perform a guilty act, he cannot be made responsible without unduly enlarging the range of criminal law. And even he who negligently induces another to injure himself is not responsible for such injury.3 § 130. Omissions are not the basis of penal action, unless they constitute a defect in the discharge of a responsibility with which 1 See infra, 2317; supra, ?? 107–111, would not be felony. See ?? 883 et 120. If, on the other hand, the of seq. fender should design malicious mis- 2 Infra, 130, 133, 154. chief to property, and then, without 3 Meyer, Lehrbuch, 32. See infra, intending it, carry it away, the offence ? 230. An omis. must be a defective discharge of a duty. 1 the defendant is especially invested, though in such cases they may constitute indictable offences. There is no such sion to be thing, in fact, as an omission that can be treated as an indictable absolute blank. A man who is apparently inactive is actually doing something, even though that something is the abstinence from something else that he ought to have done. Even sleeping is an efficient act, and may become the object of penal prosecution when it operates to interrupt an act on the part of the defendant which the law requires of him with the penalty of prosecution for his disobedience. As, therefore, an omission takes its character from the prior responsibility that it suspends, that responsibility must be scrutinized when we undertake to estimate the penal character of an omission to perform it. And as a general rule in this respect we may say, that when a responsibility specifically imposed on the defendant is such that an omission in its performance is, in the usual course of events, followed by an injury to another person or to the State, then the defendant is indictable for such an omission. If the duty is absolute, then the defendant is responsible for its non-performance. "I myself," said Lord Campbell, in a case where this question was discussed,3" tried a prisoner for not taking proper care in managing the shaft of a mine. He intrusted the management to an incompetent person, who said at the time he was incompetent. The prisoner was con 2 1 R. v. Gray, 4 F. & F. 1098, 1864; R. v. Lowe, 4 Cox C. C. 449, 1850; R. v. Vann, 2 Den. C. C. 325, 1853; 5 Cox C. C. 379; State v. Bailey, 1 Fost. (N. H.) 185, 1849; State v. Berkshire, 2 Ind. 207, 1851. Infra, 22 331 et seq. 2 See R. v. Hughes, D. & B. C. C. 248, 1857; 7 Cox C. C. 301; R. v. Haines, 2 C. & K. 368, 1847; R. v. Lowe, 3 C. & K. 123; 4 Cox C. C. 449, 1850. Infra, 2 156, 358. As to parents' neglect of child, see infra, ?? 336, 1563 et seq. The point in the text is considered in 2 Steph. Hist. Crim. Law, 112. Lord Macaulay, in his Report on the Indian Penal Code, thus discusses the question in the text: "Two things we take to be evident: first, that some of these omissions ought to be punished in exactly the same manner in which acts are punished; secondly, that all these omissions ought not to be punished. It will hardly be disputed that a jailer who voluntarily causes the death of a prisoner by omitting to supply that prisoner with food, or a nurse who voluntarily causes the death of an infant intrusted to her care by omitting to take it out of a tub of water into which it has fallen, ought to be treated as guilty of murder. On the other hand, it will hardly be maintained that a man should be punished as a murderer because he omitted to relieve a beggar." 3 R. v. Pocock, 17 Q. B. 34, 1851; s. c. 5 Cox C. C. 172, 1849, cited infra, 154, 339. Omissions are of affirma sions of mands. victed, and I did not hesitate to impose a severe sentence." But it is otherwise when the performance of the duty is discretionary.1 § 130 a. Penal laws are either affirmative, equivalent to "thou shalt," or negative, equivalent to "thou shall not." An omission to do what the first orders is equally indictable with an actual doing what the second forbids. The chief breaches distinction between the two classes of laws is that the tive commands; first, the affirmative command, requires a continuous com course of action; while the second, the negative, is negative usually limited to a single act. Thus among affirmative comcommands we may reckon continuous duties of officers of all classes. A public officer is required to execute his office diligently; if he fails to do so, he is indictable for misconduct in office, though the failure may consist in a mere omission. Persons exercising private offices are subject to a similar duty, though as a rule they are not indictable for omissions unless such omissions are productive of harm to persons whom they have specially in charge.2 The same distinction applies to omissions in the discharge of natural duties. A husband is indictable for an omission in the discharge of his duty to his wife, whenever this duty imposes on him specially her support, she being incapable of self-help, and whenever through the omission she is injured. A parent is in like manner indictable for an omission to feed and shelter a helpless child exclusively dependent on him. So if I put another person in a position where injury will accrue to him, if I omit to relieve him, should I withdraw from him the care I undertook to give him, I am indictable for the injury I cause by the omission.3 But the duty in such case must be averred and proved.* § 131. Indictable omissions may be classified as follows: Classifica tion of omissions. I. Omissions constituting defects in the performance 1 R. v. Pocock, Ibid. See, also, cases, infra, & 247. 2 See State v. McEntyre, 3 Ired. 171, 1842, cited infra, ? 1570. See the question of omissions in II. Omissions constituting defects in the performance of duties which have not been eo nomine undertaken―i. e., non-contractual duties. 1st. From the standpoint of general civic duty, among which 2d. From the standpoint of official duty, as where an officer cover a ditch or well belonging to him, over which he § 131 a. It has been frequently said that omissions are always negligent, and that consequently indictments based on Omissions may be malicious as well as omissions must be negligent as distinguished from malicious offences. But this is a mistake. A man undernegligent. taking a duty may intentionally omit some act essential to its discharge, and in this case he is indictable for a maliciously imperfect discharge of the duty. And in this way, the increment of malice may turn a non-indictable offence into an indictable offence. Thus, if A. omits to succor B. when drowning, A. is not indictable for the omission. It is otherwise, however, if A. should induce B. to bathe with him, promising to succor B. in case of danger, and then should intentionally leave B. beyond his depth, and fail to relieve him, so that B. is drowned. In this case A. is indictable for malicious homicide. Mere § 132. Whether a person who is under no specific obligation to rescue the life of another in danger is indictable for omitting to do so, when he can do so without danger to his own life, has been much discussed. In the Roman law the negative was maintained. To such omissions, how omission to render help not indictable. 1 Infra, & 1247. 2 Berner, 90; 1 Ben. & Heard See 4 Crim. Law Mag. 9. 5 See remarks of Lord Campbell in R. v. Hughes, D. & B. 248, 1857; s. c. 7 Cox C. C. 301, cited infra, § 369. See cases in ? 133. 6 L. 3. 22; L. 6. § 8. 9; D. de remilit. (4 q. 16). Tacit. Annal. xiv. 42-45. |