People v. Maki

223 N.W. 70, 245 Mich. 455, 1929 Mich. LEXIS 983

• Court: Michigan Supreme Court
• Decided: January 7, 1929
• Docket: Docket No. 129, Calendar No. 33,848.
• Status: Published

Opinions

North, C. J.

The defendant heíéin was charged with involuntary manslaughter in consequence of a collision between the automobile driven by him and one driven by the deceased, Alfred Larson. The conviction was for negligent homicide and the defendant reviews by writ of error.

The information contains only one count and charges that (1) the defendant, Maki, was driving at an unreasonable and unlawful rate of speed, (2) that he was driving without having his car under control, (3) that he was driving on the highway while intoxicated, and (4) that he did wilfully, etc., drive his automobile against the automobile of said Lar-r son in a reckless and careless manner and thereby caused the latter’s death. Of these alleged acts of unlawfully operating the defendant’s automobile the first three were not sustained by the proof, and the trial court charged the jury:

“So all of these matters, the speed of the car, the control of the car and intoxication are taken out of the case and taken from your consideration as showing in any manner that the defendant was guilty of negligence in respect to the accident which happened there. The people, however, claim that the defendant was driving on the wrong side of the road.”

The defendant assigns error because the case was submitted to the jury on the theory covered by the italicized portion of the charge above quoted, i. e., that the defendant was driving his automobile on the .wrong side of the road. It is claimed by the defendant that no such charge is contained in the information. This question was timely raised by objection to testimony, by a motion for a directed verdict, by requests to charge, and assignments of error based on the charge as given. Aside from those portions which the trial court held were not sustained by any proof, we find the following charged in the information:

“And (the defendant) did operate said automobile so as to endanger the life of Alfred Larson and did then and there wilfully, feloniously, wantonly, and recklessly drive said automobile into and against the automobile of said Alfred Larson, in a reckless and careless manner, giving to the said Alfred Larson * * * ' mortal wounds and injuries of which * * * said Alfred Larson * * * died.”

By the verdict rendered the jury acquitted the defendant of the charge of involuntary manslaughter ; and hence we are now concerned only with the question as to whether the information properly charges the defendant with negligent homicide. The statute (Act No. 98, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 15226 (2-4)]) provides:

“Section 1. Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause-the death of another shall be guilty of the crime of negligent homicide. * * *

“Sec. 2. The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committéd in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter such jury may in its discretion render a verdict of guilty of negligent homicide.

“Sec. 3. In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle.”

We think the portion of the information above quoted sufficiently charges the defendant with having committed the crime of negligent homicide by recklessly and carelessly driving his automobile into and against the automobile of the deceased and thereby causing the latter’s death. Not all of the details of the collision are alleged; but all the essential elements of the offense are charged. If the defendant desired further details of the facts and circumstances out of which the alleged offense arose he might have obtained them by demanding an examination before the magistrate. He saw fit to waive his right to an examination, but he should not be allowed to use this circumstance as a means of obtaining a new trial. As stated by Justice Wiest in People v. Townsend, 214 Mich. 267 (16 A. L. R. 902), so it might be said in the instant case:

“The right of an accused to be fully informed of the nature of the charge against him relates, so far as the information is concerned, solely to the charge and not to the evidence in support thereof. * # * The information sufficiently charges that the unlawful act was the proximate cause of the accident and avers a direct relation between the unlawful act of operating the automobile” in a reckless and careless manner and the accident which followed.

The Townsend Case quotes:

“ ‘This information charges that defendant carelessly, recklessly and with culpable negligence operated and propelled this automobile. * * * It was not, in our judgment, essential that the informa tion should underthke to set out in detail in what such carelessness, recklessness and culpable negligence consisted.’ State v. Watson, 216 Mo. 420 (115 S. W. 1011).”

.The unlawful act charged in this information and relied upon by the prosecution is that the defendant “did operate said automobile * * * in a reckless and careless manner.” This wrongful act in and of itself is not a felony. The syllabus in People v. Townsend, supra, reads as follows:

“In an information charging involuntary manslaughter committed while perpetrating an unlawful act not amounting to a felony, it is sufficient to allege the unlawful act with sufficient particularity to identify it, and then to charge that as a consequence the defendant caused the death of the deceased, and there is no need to aver in detail the specific acts of the accused.”

The foregoing should not be construed to mean that it is always sufficient to charge a statutory offense in the words of the statute alone. The accused has the constitutional right to be informed of the nature of the charge brought against him. Undoubtedly this includes the right to have a definite statement of the time, place, and manner of committing the offense, and likewise a definite statement of the charge itself. Beyond this the details are proper as matters of evidence but are nonessentials to the information. The information in this case specifically charges the time, the place, and the manner in which the alleged negligent homicide was committed, the recital being that it was accomplished by the defendant by wilfully, feloniously, and wantonly driving his automobile into and against the automobile of the deceased, Alfred Larson, in a reckless and careless manner, thereby causing the death of said Larson. It may he conceded it would have been better pleading had the prosecuting attorney set forth this phase of the charge more specifically, but we are of the opinion that his failure to do so has not prejudiced the defendant. The constitutional right of the accused is “to be informed of the nature of the accusation.” We think the information satisfies this requirement. A careful consideration of the record convinces us that the defendant was not surprised at the trial of the case, and that all of the available witnesses as to this phase of the alleged offense were before the court. There was no application for a continuance. The information in People v. Ryczek, 224 Mich. 106, charges the same offense in substantially the same manner. There, as here, it was charged that the defendant was under the influence of intoxicating liquor, but Ryczek was convicted on the theory that he was driving “without keeping a lookout as to where he was going. ’ ’ The information in that case was held to be sufficient. The holding there should be controlling here and this information likewise held to be sufficient.

Error is assigned on the ruling of the circuit judge whereby the prosecuting attorney was allowed to ask one of the people’s witnesses, Frank Salo, if on the evening of the accident he had some drinks of moonshine whisky at Billy Sousa’s Bingo Shop in Negaunee. Salo had ridden from Ishpeming to Negaunee with the defendant in the latter’s automobile earlier in this same evening; and these two were at Sousa’s place together. The witness admitted that he had “about three drinks there,” but he also testified that he did not see the defendant take any drinks. Salo was not with the defendant at the time of the accident. Not being an eyewitness, the people were not obliged to call him. There was no proof that the defendant drank any liquor on the night in question; but he was charged with driving an automobile while intoxicated, and the irrelevant and immaterial testimony that’ the people’s witness, who was with the defendant during the evening some time before the accident, had been drinking moonshine whisky, was highly prejudicial. It is true that in so far as the charge was based upon driving an automobile while intoxicated, it was finally withdrawn from the consideration of the jury; but this only rendered the testimony all the more irrelevant but none the less prejudicial.

The most important question presented in this record is the constitutionality of Act No. 98, Pub. Acts 1921, under which this prosecution is brought. The act is assailed on the ground that it does not definitely define any offense. It is asserted that one convicted thereunder is deprived of his liberty without due process of law and is deprived of the equal protection of the law.

The wording of some portions of the act is subject to criticism, but the intent and purpose of the legislature is plainly indicated. Notwithstanding it is provided that the jury “may in its discretion render a verdict of guilty of negligent homicide, ’ ’ cleaily it was not intended by this portion of section 2 to vest a discretionary power in the jury to convict or acquit irrespective of the facts established by the proof. The statute should not be so construed. It is made plain by section 3 that the legislature intended to permit it to be determined as a question of- fact in each case as to whether the defendant was driving at an immoderate rate of speed. Because section 3 provides that what constitutes driving at an immoderate rate of speed is a question of fact, it is asserted the court cannot define the offense or properly charge the jury, but instead what constitutes an essential element of the offense is to be fixed by the jury rather than by the terms of the statute itself. The criticism is made that this renders the statute so uncertain and indefinite that one cannot know whether his course of conduct in this particular is lawful or unlawful, and that driving a vehicle at a given rate of speed may be found criminal by one jury and entirely lawful by another. This criticism overlooks the fact that notwithstanding the jury determines as a question of fact from the proof whether the defendant under all the'circumstances of the particular case is guilty of driving at an immoderate rate of speed, it is still the duty of the court to instruct the jury as to the rules of law in the light of which the jury shall determine from the-proof the existence or nonexistence of this element of the offense. The very nature of the offense sought to be prohibited prevents its-definition by specific terms. What would constitute a careless, reckless, negligent or immoderate rate of speed in one locality, under certain conditions might well be found to be entirely proper in another place or under different conditions. This element of the offense cannot be defined by the use of exact terms but it does not follow that the offense may not be defined in terms sufficiently definite to meet the constitutional requirement.

“In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the legislature intended to prohibit and punish, otherwise it will be void for uncertainty. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible. * * * It is not necessary to use technical terms, and the legislature may designate the offense by using words in common and daily use; and a penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.” 16 C. J. pp. 67, 68.

We have many crimes defined by the use of words of general and flexible meaning, and in consequence thereof the existence or nonexistence of certain essential elements of these statutory offenses becomes a question of fact for the jury to determine from the proof in the case. Reference to only a few of the offenses of this character will suffice to suggest the extent of this type of statutes. The following are statutory felonies (references are to sections of Comp. Laws 1915): Wilful, deliberate and premeditated killing (15192); committing an assault with a deadly weapon (15207); assault with intent to do great bodily harm (15227); assault with a gun, etc., or other dat%gerous weapon (15228); cruelly and unlawfully punishing a child (15230); to go armed with an offensive and dangerous weapon or instrument concealed on one’s person (15236); committing a gross fraud or cheat (15321); malicious injury to property (15331); abandonment of wife or children without necessary and proper shelter, food, etc. (7789); lewd and lascivious cohabitation (15467); use of indecent language, etc. (15533). Each of these and many others which might be added contain one or more essential elements of the statutory offense which is not specifically defined by the statute. In the instant case the charge is involuntary homicide committed by operating a vehicle at an immoderate rate of speed or in a careless, reckless, or negligent manner. The statute does not define immoderate rate of speed or what constitutes carelessness, recklessness, or negligence. It is, therefore, argued that the statute does not define the crime. By the same process of reasoning the statute forbidding abandonment of a wife and children without providing necessary and proper shelter, food, etc., must fail because it does.not specify or define what constitutes “necessary and proper shelter, food,” etc. The same may be said of the statute against “cruelly and unlawfully punishing a child.” Is it more difficult to define and have a jury determine as a fact what constitutes operating a vehicle at “an immoderate rate of speed” than what constitutes “cruelly punishing a child,” or what in a given case constitutes “necessary and proper shelter, food,” etc? Surely the offense in the instant case is as definitely defined as in the others. The standards applied by a jury in passing upon one case may differ from those applied in another case. This is no more than to say that one jury may require more or different proofs than another. In all criminal cases tried by a jury, it is the jury that determines what constitutes proof beyond a reasonable doubt, which is quite as indefinite and difficult of ascertainment as what constitutes “an immoderate rate of speed;” but the former enters into the determination of the guilt or innocence of every person charged with a crime. It is said every person has a right to know what acts are in violation of law; that there must be a definition of criminality. Here again it would seem that it is quite as easy for a well-minded person to determine whether he is operating his vehicle with reasonable care under the circumstances with which he is surrounded as to determine what is necessary and proper food and shelter for his family considering their station in life, or what would constitute cruel punishment of one of his children. The question presented is not new. There is a conflict of authority as to the validity of statutes of this character. State v. Lantz, 90 W. Va. 738 (111 S. E. 766, 26 A. L. R. 894), holds that such acts are unconstitutional. In the note following this ease (26 A. L. R. 897) and reviewing many authorities, it is said:

“It is generally held that statutes or ordinances providing that no person shall drive or operate any motor vehicle recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highways and the general and usual rules of the road, or so as to endanger the property, life or limb of any person, are not invalid on the ground that they are too vague, uncertain and indefinite to sustain a criminal conviction; ’ ’ citing Schultz v. State, 89 Neb. 34 (130 N. W. 972, 33 L. R. A. [N. S.] 403, Ann. Cas. 1912C, 495); State v. Schaeffer, 96 Ohio St. 215 (117 N. E. 220, L. R. A. 1918B, 945, Ann. Cas. 1918E, 1137); Schier v. State, 96 Ohio St. 245 (117 N. E. 229); Mulkern v. State, 176 Wis. 490 (187 N. W. 190); Maxon v. State, 177 Wis. 379 (187 N. W. 753, 21 A. L. R. 1484).

The following authorities are to the same effect: Ex parte Daniels, 183 Cal. 636 (192 Pac. 442, 21 A. L. R. 1172); State v. Goldstone, 144 Minn. 405 (175 N. W. 892); Gallaher v. State, 193 Ind. 629 (141 N. E. 347, 29 A. L. R. 1059).

In Gallaher v. State, supra, numerous authorities are cited and reviewed and consideration given to the questions raised incident to this phase of the present case. In passing upon a like statutory provision, it is stated in State v. Schaeffer, supra:

“In short, the legislature wrote into the statute what has become known as the ‘rule of reason’ ever since Standard Oil Co. v. United States, 221 U. S. 1 (31 Sup. Ct. 502, 34 L. R. A. [N. S.] 834, Ann. Cas. 1912D, 734), and United States v. American Tobacco Co., 221 U. S. 106 (31 Sup. Ct. 632), were decided by the Supreme Court of the United States. In those cases the Supreme Court of the United States read into the statute the so-called ‘rule of reason’ holding that the anti-trust act really was not a denial of all restraint of trade, but only a denial of unreasonable restraint of trade. It would hardly be suggested that the Supreme Court of the United States read into the statute something that made the statute unconstitutional, or read into the statute something that made it so indefinite and uncertain that it was incapable of advising the public as to what was or was not an offense under it, or that made the statute practically unenforceable. And yet, by parity of reason, it is claimed in this case that the legislature, which wrote into the statute the same ‘rule of reason, ’ thereby in effect nullified such statute, because of the indefiniteness and uncertainty of its terms. The contention is not sound.”

Notwithstanding quotations from decisions of the United States Supreme Court which might seem to indicate the contrary, they are not applicable to a statute of this character; and by Nash v. United States, 229 U. S. 373 (33 Sup. Ct. 780), and the recent decision of Chief Justice Taft in Cline v. Frink Dairy Co., 274 U. S. 445 (47 Sup. Ct. 681), the constitutionality of such enactments has been sustained. We quote from the Cline Case:

“On questions of confiscatory rates for public utilities, for instance, courts must examine in great detail the circumstances and reach a conclusion as to a reasonable. profit. But this does not justify in such a case holding the average member of society in advance to a rule of conduct measured by his judgment and action in respect to what is a reasonable price or a reasonable profit. It is true that, on an issue like negligence, i. e., a rule of conduct for the average man in the avoidance of injury to his neighbors, every one may be held to observe it either on the civil or criminal side of the court. It is a standard of human conduct which all are reasonably charged with knowing and which must be enforced against every one in order that society can safely exist. We said in the Nash Case (p. 377):

“ ‘But apart from the common law as to restraint qf trade thus taken up by the statute the law is full of instances where a man’s .fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a' short imprisonment, as here; he may incur the penalty of death. “An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it” by common experience in the circumstances known to the actor. * * * “The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.” 1 East P. C. 262.’

“Following the authority in the Nash Case, we sustained in Miller v. Oregon, per curiam, 273 U. S. 657. (47 Sup. Ct. 344), a conviction of manslaughter under a statute of Oregon, which made the following rule of conduct a standard of criminality:

“ ‘Every person operating a motor vehicle on the public highways of this State shall drive the same in a careful and prudent manner, not to exceed thirty miles per hour, and within the limit of incorporated cities and towns not to exceed twenty miles per hour, and at intersections and schoolhouses not to exceed twelve miles per hour, and in no case at a rate of speed that will endanger the property of another, or the life or limb of any person. ’ (Ch. 371, General Laws of Oregon, 1921, § 2, snbd. 16.)

‘ ‘ The indictment was framed under the last clause of this statute. Such standard for the driver of an automobile on a highway is one to which it is neither harsh nor arbitrary to hold those criminally who operate such a possibly dangerous instrument of locomotion, and who are or ought to be aware of what degree of care is necessary to avoid injury to others under the conditions that prevail on a highway.”

While it is desirable that criminal statutes be expressed in language as specific as is possible considering the subject-matter of the legislation, neither in the Constitution nor elsewhere is there a requirement that the impossible should be accomplished. With many types of crimes it is not possible to describe or define them by the use of specific terms and still have the statute sufficiently broad and inclusive to cover the whole class of offenses at which it is aimed. A maximum rate' of speed may be fixed and other specific acts incident to operating vehicles may be forbidden by statute, but it is not humanly possible to cover by express terms of a statute every type of careless, negligent, or wilful operation of a vehicle resulting in a culpable homicide except by the use of general terms such as are found in this statute. Driving an automobile at a rate of speed well within a maximum which might be specified in the statute would under certain circumstances be grossly negligent. Certainly there must be some limitations upon and control over misconduct of this character provided in our criminal statutes, and the acts sought to be prohibited are so varied in their details that it is not possible to describe and include them in the statute except by the use of general terms. The rights of the accused are not thereby prejudiced. He may gain detailed information by demanding an examination, and under the criminal code now in force he has a right to a bill of particulars by which he may be informed of the details of the charge brought against him. His constitutional right to be advised of the nature of the accusation brought against him is fully respected. This act is not subject to the constitutional objection here urged.

The contention of the appellant that contributory negligence should be a defense to a statutory charge of negligent homicide is not well founded. People v. Campbell, 237 Mich. 424; State v. Campbell, 82 Conn. 671 (74 Atl. 927, 18 Ann. Cas. 236, 135 Am. St. Rep. 29 3).

Other errors are assigned in the record, but they are not likely to arise incident to a retrial of the ease and need not be discussed here.

For the reason hereinbefore indicated the conviction should be set aside and a new trial ordered.

Wiest and Sharpe, JJ., concurred with North, C. J.