McDonald, J.
The defendant was convicted of involuntary manslaughter and brings his case here for review on exceptions before sentence. The crime is charged to have been committed through the unlawful act of giving and selling the deceased moonshine whisky, the drinking of which, followed by exposure, caused his death. On the trial the defendant offered no proof, contending that the evidence introduced by the people was insufficient on which to base the charge. The testimony of the people shows that in February, 1923, Howard Harkness, the deceased, his brother Edward and one Casey Poort, were cutting
ice from a small lake in Newaygo county. They were all accustomed to the use of intoxicating liquor. The defendant lived 11 miles away in Muskegon county and was known to be engaged in the business of manufacturing and selling moonshine whisky. They decided to walk to his place and procure a gallon of thé liquor. Starting early in the morning they reached there at noon. The defendant gave them about four drinks each and then sold the deceased a gallon, which he put into a half gallon glass jug and two quart bottles. When they started home each had taken six' or seven drinks and all were somewhat intoxicated. They arranged with the defendant to drive them part of the way home. After they had gone a couple of miles something went wrong with the automobile and they undertook the balance of the journey on foot. As to what happened after that Edward Harkness testified:
“We left the automobile at that point where we turned it around and Howard and Casey took the liquor and we went on. We were traveling in Indian file. We were all companions at that time. Casey had the bottles and Howard had the jug. Howard was feeling better than the rest of us, I guess. He ran through the woods. He ran fast right through the woods. He ran fast through the woods himself for a ways. I followed him on the road. • I missed him when he was in the woods. I couldn’t say how much liquor he drank and I don’t know how much Casey drank. We went close to three miles from where we left the automobile. It was in the neighborhood of 3 or 4 o’clock in the afternoon. We started from Tony’s house somewhere about 1 o’clock in his automobile. It was about 4 .o’clock in the afternoon when I left Howard. It was about three hours after we had left Tony.
“Q.
Now, where were you when you left Howard ?
“A.
We was north of the Besaw hill.
“Q.
How did you come to leave him?
“A. He told me to.
“Q.
You thought it safe to leave him?
“A.
He told me, he said, ‘You go home.’
“Q. I am not asking you what he told you. You thought it was safe to leave him, did you?
“A. Yes, I did.
“Q. You stated on your direct-examination here that he appeared perfectly normal to you?
“A. He did in a way, yes, as near as I knew. * * *
“Q.
Where was Casey when you left Howard and him together?
“A. Sitting by a stump.
“Q.
And where was Howard?
“A. He was standing in the road by the side of me.
, “Q. And was he talking?
•“A. He was.
“Q.
And how far was this place that you left him there in company with Casey, as you understood, from where afterwards the-body was found?
“A. Somewhere about sixty rods, somewhere along in that.”
No one saw Howard again that night. The next morning his dead body was found lying in the road. There was about eight inches of snow on the ground and the weather had turned cold in the night. Doctors testified that death was caused by acute alcoholism and exposure to the cold.
/Counsel for the defendant contends that the facts proven by the people are insufficient to sustain a conviction of involuntary manslaughter. He argues that the defendant is not guilty of manslaughter because the selling of intoxicating liquor is a felony, and that where death results from the commission of a felony, the homicide is not manslaughter but murder. Counsel apparently overlooks the fact that the violation of the liquor law is only criminal because prohibited by statute. It is not a common-law felony. It is not inherently criminal. Notwithstanding the; fact that the statute has declared it to be a felony it is an act not in itself directly and naturally danger-^ ous to life. So if one in the commission of such an act unintentionally causes the death of another, he is
■ not guilty of murder, nor is he guilty of manslaughter unless he commits the act carelessly and in such a manner as manifests a reckless disregard of human life. The act of selling or 'furnishing intoxicating / liquor in violation of the statute is what the law terms j an act
malum prohibitum,
a crime existing only by reason of statutory prohibition. An unlawful act of this character which unintentionally-causes the death of another, is not in itself a sufficient basis for a | charge of involuntary manslaughter. But the com- . mission of such an unlawful act will constitute manslaughter if performed under such circumstances as to supply the intent to do wrong and inflict some bodily injury. This is well illustrated in those cases where one kills another while driving an automobile at an unlawful rate of speed. The unlawful act of exceeding the speed limit is not in itself criminal but if done in a careless manner, in reckless disregard of the safety of others and death results, the offender is guilty of involuntary manslaughter^ The rule is well stated in
Thiede
v.
State,
106 Neb. 48 (182 N. W. 570, 15 A. L. R. 237), as follows:
"We believe the rule to be that though the act made unlawful by statute is an act merely
malum prohibitum
and is ordinarily insufficient, still when such an act is accompanied by negligence or further wrong so as to be in its nature, dangerous, or as to manifest a reckless disregard for the safety of others, then it, may be sufficient to supply the wrongful intent essential to criminal homicide when such an act results in the death of another, may constitute involuntary manslaughter.”
In
State
v.
Reitze,
86 N. J. Law, 407 (92 Atl. 576), the court said:
“It
is only for the natural and probable result of a wrongful act that a wrongdoer is liable, even civilly. And this is so, at least as far as criminal responsibility is concerned, even if the act is prohibited by the legis
lature, provided it be merely
malum prohibitum,
and not
malum in se
and is not dangerous in itself.”
Free access — add to your briefcase to read the full text and ask questions with AI
McDonald, J.
The defendant was convicted of involuntary manslaughter and brings his case here for review on exceptions before sentence. The crime is charged to have been committed through the unlawful act of giving and selling the deceased moonshine whisky, the drinking of which, followed by exposure, caused his death. On the trial the defendant offered no proof, contending that the evidence introduced by the people was insufficient on which to base the charge. The testimony of the people shows that in February, 1923, Howard Harkness, the deceased, his brother Edward and one Casey Poort, were cutting
ice from a small lake in Newaygo county. They were all accustomed to the use of intoxicating liquor. The defendant lived 11 miles away in Muskegon county and was known to be engaged in the business of manufacturing and selling moonshine whisky. They decided to walk to his place and procure a gallon of thé liquor. Starting early in the morning they reached there at noon. The defendant gave them about four drinks each and then sold the deceased a gallon, which he put into a half gallon glass jug and two quart bottles. When they started home each had taken six' or seven drinks and all were somewhat intoxicated. They arranged with the defendant to drive them part of the way home. After they had gone a couple of miles something went wrong with the automobile and they undertook the balance of the journey on foot. As to what happened after that Edward Harkness testified:
“We left the automobile at that point where we turned it around and Howard and Casey took the liquor and we went on. We were traveling in Indian file. We were all companions at that time. Casey had the bottles and Howard had the jug. Howard was feeling better than the rest of us, I guess. He ran through the woods. He ran fast right through the woods. He ran fast through the woods himself for a ways. I followed him on the road. • I missed him when he was in the woods. I couldn’t say how much liquor he drank and I don’t know how much Casey drank. We went close to three miles from where we left the automobile. It was in the neighborhood of 3 or 4 o’clock in the afternoon. We started from Tony’s house somewhere about 1 o’clock in his automobile. It was about 4 .o’clock in the afternoon when I left Howard. It was about three hours after we had left Tony.
“Q.
Now, where were you when you left Howard ?
“A.
We was north of the Besaw hill.
“Q.
How did you come to leave him?
“A. He told me to.
“Q.
You thought it safe to leave him?
“A.
He told me, he said, ‘You go home.’
“Q. I am not asking you what he told you. You thought it was safe to leave him, did you?
“A. Yes, I did.
“Q. You stated on your direct-examination here that he appeared perfectly normal to you?
“A. He did in a way, yes, as near as I knew. * * *
“Q.
Where was Casey when you left Howard and him together?
“A. Sitting by a stump.
“Q.
And where was Howard?
“A. He was standing in the road by the side of me.
, “Q. And was he talking?
•“A. He was.
“Q.
And how far was this place that you left him there in company with Casey, as you understood, from where afterwards the-body was found?
“A. Somewhere about sixty rods, somewhere along in that.”
No one saw Howard again that night. The next morning his dead body was found lying in the road. There was about eight inches of snow on the ground and the weather had turned cold in the night. Doctors testified that death was caused by acute alcoholism and exposure to the cold.
/Counsel for the defendant contends that the facts proven by the people are insufficient to sustain a conviction of involuntary manslaughter. He argues that the defendant is not guilty of manslaughter because the selling of intoxicating liquor is a felony, and that where death results from the commission of a felony, the homicide is not manslaughter but murder. Counsel apparently overlooks the fact that the violation of the liquor law is only criminal because prohibited by statute. It is not a common-law felony. It is not inherently criminal. Notwithstanding the; fact that the statute has declared it to be a felony it is an act not in itself directly and naturally danger-^ ous to life. So if one in the commission of such an act unintentionally causes the death of another, he is
■ not guilty of murder, nor is he guilty of manslaughter unless he commits the act carelessly and in such a manner as manifests a reckless disregard of human life. The act of selling or 'furnishing intoxicating / liquor in violation of the statute is what the law terms j an act
malum prohibitum,
a crime existing only by reason of statutory prohibition. An unlawful act of this character which unintentionally-causes the death of another, is not in itself a sufficient basis for a | charge of involuntary manslaughter. But the com- . mission of such an unlawful act will constitute manslaughter if performed under such circumstances as to supply the intent to do wrong and inflict some bodily injury. This is well illustrated in those cases where one kills another while driving an automobile at an unlawful rate of speed. The unlawful act of exceeding the speed limit is not in itself criminal but if done in a careless manner, in reckless disregard of the safety of others and death results, the offender is guilty of involuntary manslaughter^ The rule is well stated in
Thiede
v.
State,
106 Neb. 48 (182 N. W. 570, 15 A. L. R. 237), as follows:
"We believe the rule to be that though the act made unlawful by statute is an act merely
malum prohibitum
and is ordinarily insufficient, still when such an act is accompanied by negligence or further wrong so as to be in its nature, dangerous, or as to manifest a reckless disregard for the safety of others, then it, may be sufficient to supply the wrongful intent essential to criminal homicide when such an act results in the death of another, may constitute involuntary manslaughter.”
In
State
v.
Reitze,
86 N. J. Law, 407 (92 Atl. 576), the court said:
“It
is only for the natural and probable result of a wrongful act that a wrongdoer is liable, even civilly. And this is so, at least as far as criminal responsibility is concerned, even if the act is prohibited by the legis
lature, provided it be merely
malum prohibitum,
and not
malum in se
and is not dangerous in itself.”
Applying these principles to the instant case the conviction cannot be sustained unless the unlawful act of selling and giving intoxicating, liquor to the deceased was committed under circumstances showing an intent to inflict injury or a reckless disregard for the safety of the deceased.* If the liquor which the defendant furnished the deceased and his companions was dangerous for use as a beverage, if it was of greater potency than ordinary whisky, or if it contained poisonous ingredients as is the case with some moonshine whisky, the defendant having distilled it himself would be charged with a knowledge of its dangerous character, and would be guilty of involuntary manslaughter. Our first inquiry then is as to the character of the whisky in question. The prosecution was unable to secure a chemical analysis of it, so that we can only judge of'its dangerous character by the effect it had upon those who drank it. The two men who were with the deceased and the defendant himself drank a considerable quantity of it and experienced no more serious results than would follow the drinking of the same quantity of ordinary whisky. The deceased drank six glasses of it while at defendant’s home; he drank from the jug in' the automobile; he drank again on the road, but showed no ill effects other than ordinary intoxication. When his brother, Edward Harkness, left him he told Edward to go on home and that he would stay to help Casey Poort, who was asleep by a stump. Edward says that when he last saw him he was standing by the road, seemingly normal and able to take care of himself. This was three or four hours after he first partook of the liquor. In view of these facts we cannot say that the whisky furnished by the defendant was of greater potency or possessed any
more poisonous ingredients than ordinary intoxicating liquor. The unfortunate results would probably have been the same if the deceased had over-indulged in a like quantity of ordinary whisky. The record is barren of any evidence that would' convert the unlawful act of the defendant into the crime of manslaughter.
The conviction is reversed and a new trial granted.
Clark, C. J., and Bird and Sharpe, JJ., concurred with McDonald, J. Steere, J., concurred in the result.