Martin v. State

Alabama Court of Appeals

17 So. 2d 427 (Ala. Crim. App. 1944)

SIMPSON, Judge.

Appellant was convicted of being drunk on a public highway, and appeals. Officers of the law arrested him at his home and took him onto the highway, where he allegedly committed the proscribed acts, viz., manifested a drunken condition by using loud and profane language.

The pertinent provisions of our statute are: "Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, . . . and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined"

Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.

Conviction of appellant was contrary to this announced principle and, in our view, erroneous. It appears that no legal conviction can be sustained under the evidence, so, consonant with the prevailing rule, the judgment of the trial court is reversed and one here rendered discharging appellant.

Of consequence, our original opinion of affirmance was likewise laid in error. It is therefore withdrawn.

Reversed and rendered.

The Court's opinion in this case is very short and contains little analysis. The Court concludes, that "[u]nder the plain terms of this statute, a voluntary appearance is presupposed." Is that what the statute says? If not, why do you think the Court was so adament about the requirement of a voluntary appearance? What rule would you take away from this case?

MPC § 2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.

(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

(2) The following are not voluntary acts within the meaning of this Section:

(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis or resulting from hypnotic suggestion;

(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

Comment to Section 2.01(1)

That penal sanctions cannot be employed with justice unless these requirements are satisfied seems wholly clear. It is fundamental that a civilized society does not punish for thoughts alone. Beyond this, the law cannot hope to deter involuntary movement or to stimulate action that cannot physically be performed; the sense of personal security would be undermined in a society where such movement or inactivity could lead to formal social condemnation of the sort that a conviction necessarily entails. People whose involuntary movements threaten harm to others may present a public health or safety problem, calling for therapy or even for custodial confinement; they do not present a problem of correction.

Would the MPC produce the same result as Martin v. State or a different one? Asked another way, did Martin's conduct "include a voluntary act"?

What do you think the authors of the MPC mean when they state that those who engage in antisocial conduct involuntarily might be the proper subject of treatment and perhaps even confinement, but they are not amenable to criminal prosecution? How might this work in practice? Is this a distinction without a difference, or is it an important line to draw?

Which of the following scenarios contain blameworthy, voluntary acts? By contrast, which scenarios exemplify involuntary acts for which the individual cannot fairly be punished.

1. Kamin resolves to stop saying “Right?” at the end of his sentences. He thinks he’s gotten through an entire class without doing so, but when he watches the video at the end of the day he realizes he failed.
2. Jones is listening to the radio while driving on the freeway and, distracted by her favorite song, ends up driving three exits past her own.
3. Roberts trips over a rock and loses their balance, bumping into Victim, who falls off a ledge to her death.
4. Garcia goes to a performance that includes a demonstration by a hypnotist. Garcia volunteers and allows herself to be hypnotized; while hypnotized, she goes on a rampage, injuring several members of the audience.
5. After being acquitted on the facts of (4) above, Garcia goes to another hypnotist demonstration and the same thing happens.

People v. Decina

Court of Appeals of New York

2 N.Y.2d 133 (1956)

The indictment states essentially that defendant, knowing “that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time”, was culpably negligent “in that he consciously undertook to and did operate his Buick sedan on a public highway” and “while so doing” suffered such an attack which caused said automobile “to travel at a fast and reckless rate of speed, jumping the curb and driving over the sidewalk” causing the death of 4 persons. In our opinion, this clearly states a violation of section 1053-a of the Penal Law.[1] The statute does not require that a defendant must deliberately intend to kill a human being, for that would be murder. Nor does the statute require that he knowingly and consciously follow the precise path that leads to death and destruction. It is sufficient, we have said, when his conduct manifests a “disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment.” People v. Angelo, 246 N.Y. 451, 457.

Assuming the truth of the indictment, as we must on a demurrer, this defendant knew he was subject to epileptic attacks and seizures that might strike at any time. He also knew that a moving motor vehicle uncontrolled on public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say as a matter of law that this did not amount to culpable negligence within the meaning of section 1053-a?

To hold otherwise would be to say that a man may freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his unconsciousness or involuntariness at that time would relieve him from prosecution under the statute. His awareness of a condition which he knows may produce such consequences as here, and his disregard of the consequences, renders him liable for culpable negligence, as the courts below have properly held. To have a sudden sleeping spell, an unexpected heart or other disabling attack, without any prior knowledge or warning thereof, is an altogether different situation, and there is simply no basis for comparing such cases with the flagrant disregard manifested here.

***

Accordingly, the Appellate Division properly sustained the lower court’s order overruling the demurrer, as well as its denial of the motion in arrest of judgment on the same ground.

[1] Section 1053-a provides:

"A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed, is guilty of criminal negligence in operation of a vehicle resulting in death."

The section provides for “imprisonment for a term not exceeding five years or by a fine of not more than one thousand dollars, or by both.” –Ed.

Why is it that the court upheld the conviction of Decina? Doesn't Decina's epilepsy make his loss of control of the Buick exactly the kind of involuntary act that both the Common Law and the MPC would agree is unjust to punish?

If not, how do we make sense of this case? What facts would we have to change to make Decina into the kind of defendant who could not fairly be prosecutred under our laws?

How compelling did you find the Court's analogy to voluntary consumption of alcohol? Isn't it true that, while Decina can choose to abstain from drinking, he cannot choose not to have epilepsy?

A problem based on The King v. Cogdon, an unreported Canadian case described by Norval Morris in his article Somnambulistic Homicide: Ghosts, Spiders, and North Koreans, 5 Res Judicatae 29 (1951):

[Mrs. Cogdon] told how, on the night before her daughter's death, she had dreamt that their house was full of spiders and that these spiders were crawling all over [her daughter] Pat. In her sleep, Mrs. Cogdon left the bed she shared with her husband, went into Pat's room, and awakened to find herself violently brushing at Pat's face, presumably to remove the spiders. This woke Pat. Mrs. Cogdon told her she was just tucking her in.  There had also been a previous dream in which ghosts had sat at the end of Mrs. Cogdon's bed and she had said to them, “Well, you have come to take Pattie.”

The morning after the spider dream she told her doctor of it. He gave her a sedative and, because of the dream and certain previous difficulties she had reported, discussed the possibility of psychiatric treatment. [That evening, Mrs. Cogdon put Pat to sleep while Mr. Cogdon was out for the evening.] There was some desultory conversation between them about the war in Korea, and just before she put out her light Pat called out to her mother, “Mum, don't be so silly worrying there about the war, it's not on our front door step yet.”

Mrs. Cogdon went to sleep. She dreamt that “the war was all around the house,” that soldiers were in Pat's room, and that one soldier was on the bed attacking Pat. This was all of the dream she could later recapture. Her first “waking” memory was of running from Pat's room, out of the house to the home of her sister who lived next door. When her sister opened the front door Mrs. Cogdon fell into her arms, crying, “I think I've hurt Pattie.”

In fact Mrs. Cogdon had, in her somnambulistic state, left her bed, fetched an axe from the woodheap, entered Pat's room, and struck her two accurate forceful blows on the head with the blade of the axe, thus killing her.

1. What is the best argument in favor of holding Mrs. Cogdon criminally responsible for the death of her daughter?
2. What is the strongest argument against holding her criminally responsible?

Pope v. State

Maryland Court of Appeals

396 A.2d 1054 (Md. App. 1979)

ORTH, J., delivered the opinion of the Court.

Joyce Lillian Pope was found guilty by the court in the Circuit Court for Montgomery County under the 3rd and 5th counts of a nine count indictment. The 3rd count charged child abuse, presenting that "on or about April 11, 1976, . . . while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, a minor child under the age of eighteen years [she] did unlawfully and feloniously cause abuse of said minor child in violation of Article 27, Section 35A of the Annotated Code of Maryland...." The 5th count charged misprision of felony under the common law, alleging that on the same date she "did unlawfully and wilfully conceal and fail to disclose a felony to wit: the murder of Demiko Lee Norris committed by Melissa Vera Norris on April 11, 1976, having actual knowledge of the commission of the felony and the identity of the felon, with the intent to obstruct and hinder the due course of justice and to cause the felon to escape unpunished..."

THE EVIDENCE

The evidence adduced at the trial established that Demiko Lee Norris, three months old, died as a result of physical injuries inflicted by his mother, Melissa Vera Norris. The abuse by the mother occurred over a period of several hours on a Sunday morning at Pope's home and in Pope's presence. Pope's involvement in the events leading to the child's abuse and death began on the preceding Friday evening when she and Melissa, with the child, were driven home by Pope's sister, Angela Lancaster, from a service held at the Christian Tabernacle Church. When they arrived at Melissa's grandparents' home, where Melissa was living, Melissa refused to enter the house, claiming that it was on fire, although in fact it was not. During the evening, Melissa had sporadically indicated mental distress. "She would at times seem caught up in a religious frenzy with a wild look about her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions." Pope agreed to take Melissa and the child into her home for the night because she did not want to put them "out on the street," and Angela would not let them stay in her home. Melissa had no money and Pope and Angela bought food and diapers for the baby. Throughout the day Melissa "changed back and forth." When Melissa was "herself" she took care of her child. When Melissa thought she was God, Pope undertook the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God. . . I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." At a baby shower Saturday evening at the home of Pope's mother, Melissa again reverted to being God

[The court then described, in graphic detail the abuse that Melissa administered to her son over the course of the next day.  The injured child was eventually brought back to church where it was discovered that Demiko had died of his injuries. -- Ed.]

The police questioned Melissa in Pope's presence. Pope did not contradict Melissa's denial of abusing the child. In fact, Pope, in response to inquiry by the police, said that the baby did not fall, and told them that she had not seen Melissa strike the baby. She explained this untruth in subsequent statements to the police: "[I]t was her body in the flesh, but it wasn't her, because it was something else."

As we have indicated, a person may be convicted of the felony of child abuse created by § 35A as a principal in the first degree upon evidence legally sufficient to establish that the person

(1) was

(a) the parent of, or

(b) the adoptive parent of, or

(c) in loco parentis to, or

(d) responsible for the supervision of

a minor child under the age of eighteen years, AND

(2) caused, by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of

(a) physical injury or injuries sustained by the child as the result of

i) cruel or inhumane treatment, or

ii) malicious act or acts by such person, or

(b) any act or acts by such person involving sexual molestation or exploitation whether or not physical injuries were sustained.

. . . Pope's lack of any attempt to prevent the numerous acts of abuse committed by the mother over a relatively protracted period and her failure to seek medical assistance for the child, although the need therefore was obviously compelling and urgent, could constitute a cause for the further progression and worsening of the injuries which led to the child's death. In such circumstances, Pope's omissions constituted in themselves cruel and inhumane treatment within the meaning of the statute. It follows that Pope would be guilty of child abuse if her status brought her within the class of persons specified by the statute. It being clear that she was neither the child's parent nor adoptive parent, and there being no evidence sufficient to support a finding that she had "the permanent or temporary care or custody" of the child as that status was construed so as to be in loco parentis to the child, the sole question is whether she had "responsibility for the supervision of" the child in the circumstances. If she had such responsibility the evidence was legally sufficient to find her guilty of child abuse as a principal in the first degree.

The State would have us translate compassion and concern, acts of kindness and care, performance of maternal functions, and general help and aid with respect to the child into responsibility for the supervision of the child. The crux of its argument is that although Pope was not under any obligation to assume responsibility for the supervision of the child at the outset, "once she undertook to house, feed, and care for [the mother and child], she did accept the responsibility and came within the coverage of the statute." But the mother was always present. Pope had no right to usurp the role of the mother even to the extent of responsibility for the child's supervision. We are in full accord with the view of the Court of Special Appeals that it could not "in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child's supervision and protection even while the child is in the very arms of its mother." It would be most incongruous that acts of hospitality and kindness, made out of common decency and prompted by sincere concern for the well-being of a mother and her child, subjected the Good Samaritan to criminal prosecution for abusing the very child he sought to look after. And it would be especially ironic were such criminal prosecution to be predicated upon an obligation to take affirmative action with regard to abuse of the child by its mother, when such obligation arises solely from those acts of hospitality and kindness.

The evidence does not show why Pope did not intervene when the mother abused the child or why she did not, at least, timely seek medical assistance, when it was obvious that the child was seriously injured. Whether her lack of action was from fear or religious fervor or some other reason is not clearly indicated. As the Court of Special Appeals correctly stated "[Pope's] testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference." The court observed that when Pope's sister arrived shortly after the acts of abuse and the mother's frenzy had diminished, Pope did not tell her sister what had occurred, although she claimed that she tried to but could not do so. But Pope's conduct, during and after the acts of abuse, must be evaluated with regard for the rule that although she may have had a strong moral obligation to help the child, she was under no legal obligation to do so unless she then had responsibility for the supervision of the child as contemplated by the child abuse statute. She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation. In the circumstances, the mother's acquiescence in Pope's conduct was not a grant of responsibility to Pope for the supervision of the child, nor was Pope's conduct an acceptance of such responsibility. "[Pope's] concern for the child [did] not convert to legal responsibility nor parental prerogatives." Pope, 38 Md. App. at 538. We hold that the evidence was not sufficient in law to prove that Pope fell within that class of persons to whom the child abuse statute applies. Thus ... the judgment of the trial court that she was a principal in the first degree in the commission of the crime of child abuse was clearly erroneous and must be set aside.

The mental or emotional state of the mother, whereby at times she held herself out as God, does not change the result. We see no basis in the statute for an interpretation that a person "has" responsibility for the supervision of a child, if that person believes or may have reason to believe that a parent is not capable of caring for the child. There is no right to make such a subjective judgment in order to divest parents of their rights and obligations with respect to their minor children, and therefore, no obligation to do so.

The evidence certainly showed that Pope "witnessed a terrible event" and that she "stood by" while the mother killed the child. But the culpability for her conduct during the abuse of the child must be determined strictly within the law or else the basic tenets of our system of justice are prostituted. There is an understandable feeling of outrage at what occurred, intensified by the fact that the mother, who actually beat the child to death, was held to be not responsible for her criminal acts. But it is the law, not indignation, which governs. The law requires that Pope's conviction of the felony of child abuse be set aside as clearly erroneous due to evidentiary insufficiency.

There is no Maryland legislative enactment which is declarative of the common law crime of misprision of felony or which may be deemed to have created a comparable offense. Therefore, if misprision of felony is a crime in this State, it is only because it was part of the common law of England to which the inhabitants of Maryland were constitutionally entitled and has survived to the present time.

We assume, arguendo, that misprision of felony was a crime under the common law of England, and that it became the law of this State pursuant to Art. 5 of the Declaration of Rights. The question is whether it is to be deemed an indictable offense in Maryland today. . . We are satisfied, considering its origin, the impractical and indiscriminate width of its scope, its other obvious deficiencies, and its long non-use, that it is not now compatible with our local circumstances and situation and our general code of laws and jurisprudence. Maintenance of law and order does not demand its application, and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it. If the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and, hopefully, with adequate safeguards. We believe that the common law offense is not acceptable by today's standards, and we are not free to usurp the power of the General Assembly by attempting to fashion one that would be. We hold that misprision of felony is not a chargeable offense in Maryland.

Why did the Maryland high court conclude that Pope could not lawfully be prosecuted on these facts? Didn't her failure to intervene cause the child to be harmed? And doesn't the Maryland statute make clear that liability can be based either on an act or on an omission? Does it matter whether the child's mother can also be prosecuted under this statute? Should that matter?

Also, why did the Court reject the charge of misprison of felony? Was it simply because there was not a provision the prosecutor could point to in the Maryland state code, or was there a deeper problem with prosecuting Pope for failing to report the child abuse of which she was aware? If the law doesn't require her to act to save a child, shouldn't it at least require her to report the danger so that others can do what she is unwilling to?

State v. Shell

Missouri Court of Appeals

501 S.W.3d 22 (Missouri App. 2016)

In January 2012, Defendant and James Eyman (Decedent) were planning to buy heroin. In text messages, Decedent told Defendant that he had $40 to put toward the purchase. Combined with Defendant's $30, the men were able to purchase seven doses of heroin. Defendant contacted his heroin dealer and purchased all $70 worth of heroin, to be paid back by Decedent when they met up later in the evening.

After buying the heroin, Defendant went to Decedent's parents' house — where Decedent was living at the time — and picked up Decedent. The men went to Defendant's house, where they each injected themselves with heroin. Defendant took three doses, while Decedent took four. Defendant drove Decedent back to his parents' house around 11:00 p.m. Decedent went inside, told his mother that he was tired and going to bed, and went into his bedroom.

At around 1:00 p.m. the next day, Decedent's mother went to check on him because he had not gotten up yet. She discovered Decedent was dead. Subsequently, Defendant was charged with distribution of a controlled substance and first-degree involuntary manslaughter. ...

At the conclusion of trial, the jury found Defendant guilty of distribution of a controlled substance and first-degree involuntary manslaughter. The court sentenced Defendant to concurrent terms of eighteen years' imprisonment for distribution and fifteen years' imprisonment for involuntary manslaughter. Defendant appeals.

Defendant challenges the sufficiency of the evidence for his conviction for involuntary manslaughter. Defendant argues that he did not have a duty to seek medical care for Decedent.

Criminal liability "is premised on a defendant's conduct involving voluntary acts." ​ A voluntary act can be an omission to perform an act. ​However, a defendant cannot be guilty of an offense "based solely upon an omission to perform an act unless the law defining the offense expressly so provides, or a duty to perform the omitted act is otherwise imposed by law."

Therefore, we must determine whether Defendant had a duty to seek medical care for Decedent, and if so, whether he satisfied said duty.  

A. Did Defendant have a duty to act?

As noted, because Missouri's involuntary manslaughter statute does not explicitly consider a defendant's failure to act, a duty to perform the omitted act must be otherwise imposed by law.... There are at least four situations that may give rise to a duty to act: (1) where a statute imposes a duty to care for another; (2) where the defendant stands in a certain status relationship to another; (3) where the defendant assumed a contractual duty to care for another; and (4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. ​Gargus,​ 462 S.W.3d at 422​ (citing ​Jones v. United States,​ 308 F.2d 307, 310 (D.C.Cir. 1962)​). A defendant stands in a "certain status relationship" with the victim in cases "where some act or omission on the part of the defendant either created or increased the risk of injury to [another]" ​

Here, Defendant argues that he did not have a duty to seek medical help for Decedent because none of the situations as laid out in ​Gargus​ apply to the facts of his case, and specifically that he did not stand in a "certain status relationship" to Decedent. Defendant maintains that even if the law did impose a duty to act, he satisfied any duty by inviting Decedent to stay the night, and once Decedent rejected Defendant's offer, Defendant had no further duty to provide help. The State counters that Defendant did, in fact, have a duty to act because he voluntarily assumed the care of a vulnerable person (Decedent) and Decedent was reliant upon Defendant for medical care.

In ​[State v. Voss, 488 S.W.3d 97 (Mo. App. E.D. 2016)] this Court held that the defendant had a duty to act because he "created and/or increased the risk of injury to [the victim]" by providing the victim with heroin, suggesting how much heroin the victim should use, helping the victim prepare the heroin for ingestion, and "leaving the hotel room after [the victim] exhibited signs of an overdose which [the defendant] recognized as such." Accordingly, the Court concluded that because the law imposed a duty to act, a reasonable juror could have concluded that the defendant breached said duty by failing to go back to the hotel room or obtain medical help for the victim.

Here, we cannot conclude that Defendant "created and/or increased the risk of injury" to Decedent. The present case is factually distinguishable from ​Voss,​ where the defendant played a much more active role in the victim's drug overdose. Unlike ​Voss,​ Defendant's role in Decedent's heroin use was simply that of distributor. During Defendant's trial, there was no evidence that Defendant suggested how much heroin for Decedent to use or that Defendant actively helped Decedent ingest the drugs. While we certainly do not condone Defendant's delivery of heroin to Decedent, the present case does not rise to the level of creating or increasing the risk of injury. Under this Court's holding in ​Voss,​ such a special relationship requires more than just delivery of the heroin. Therefore, we conclude that the law did not impose a duty because Defendant did not create and/or increase the risk of injury to Decedent.

Regardless, we next consider the State's argument that the law imposed a duty because Defendant voluntarily assumed the care of a vulnerable person who was reliant upon him for medical care. . . Here, we cannot conclude that Defendant voluntarily assumed the care of Decedent and that Decedent was entirety dependent upon Defendant for his medical care. While Defendant and Decedent engaged in drug use together, various other facts established at trial support our conclusion. After Defendant dropped Decedent back at his parents' house, Decedent had a conversation with his mother. Decedent may have started a load of laundry, and then he told his mother that he was tired, said goodnight, and told her that he loved her. These facts, when considered in the context of Decedent's entire evening, show that Decedent was not entirely dependent upon Defendant. Furthermore, Defendant was not the only person with whom Decedent had interactions after ingesting the drugs. Accordingly, we conclude that the law did not impose a duty to act because Defendant did not seclude Decedent, and Decedent was not dependent upon Defendant for medical care.

Conclusion

Given the foregoing, we affirm Defendant's conviction of Count I, distribution of a controlled substance. We reverse and vacate Defendant's conviction of Count II, involuntary manslaughter.

The Court here finds that Shell cannot be guilty for his failure to save his compatriot because he did not owe a duty to that compatriot? How did the Court come to this conclusion? Were you convinced by the way the Court distinguished the Voss decision?

Was liability for an omission the only way that Shell could have been convicted of causing his friend's death? Didn't he do an act (procuring the heroin) that foreseeably let to his friend's death? Why, do you think, the prosecutor relied on a theory of liability for omission rather than liability for action? We will return to this question in Section 5.1, below, where we discuss causation. 

MPC Section 2.01(3)

Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

(a) the omission is expressly made sufficient by the law defining the offense; or

(b) a duty to perform the omitted act is otherwise imposed by law.

MPC Section 2.01(3) shows that the MPC and common law positions are in sync: One is not liable for failing to act absent a legal (as opposed to a moral) obligation to do so.

We have previously seen in Section 2.01(1) that the code imposes a duty to act only when the defendant is capable of the action the law requires of him. 

We discuss exactly what that might mean in the context of the Likine case, below.

§ 519. Emergency medical care

A. A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.

B. A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice.

C. A person who willfully violates subsection (a) of this section shall be fined not more than $100.00. (1967, No. 309 (Adj. Sess.), §§ 2-4, eff. March 22, 1968.)

Vermont is one of a handful of states that, in some contexts, criminalize a failure to provide aid even in the absence of a preexisting legal duty to do so.  That is, a defendant can be found liable under this statute for failing to provide aid to another, even if she is not otherwise obligated to do so by contract or some status relationship. (Do you see how this statute differs from the ones discussed in Shell and Pope?)

Do you think the Vermont statute is an improvement on the traditional and MPC approaches that impose a duty to act on some people but not on others? Also, what does it mean that the statute prohibits only wilful violations? Does that offer some protection that makes these so-called good samaritan statutes more palatable?

People v. Likine

Supreme Court of Michigan

823 N.W.2d 50 (Mich. 2012)

All defendants argue that the circuit courts denied their constitutional right to due process when they refused to consider evidence of defendants' “inability to pay” as a defense to the charge of felony nonsupport. Only Likine explicitly equated her alleged inability to pay with a claim of impossibility.

To evaluate defendants' arguments, we must first consider the relevant statute, MCL 750.165.28 The operative language of the statute provides that “[i]f the court orders an individual to pay support ... for a child of the individual, and the individual does not pay the support ..., the individual is guilty of a felony....”

We agree with the Court of Appeals' conclusion 750.165 imposes strict liability. Although strict-liability offenses are disfavored, there is no question that the Legislature may create such offenses without running afoul of constitutional concerns. Consistently with [People v. Adams, 262 Mich.App. 89, 683 N.W.2d 729 (2004)], we have stated that strict-liability crimes “regulate[ ] conduct under the state's police power to promote the social good, a course the Legislature may elect without requiring mens rea,” which is a particular state of mind that the prosecution must prove the defendant had in order to secure a conviction.

Concluding that MCL 750.165 is a strict-liability offense, however, does not end our analysis. The Adams Court only addressed the defense of inability to pay and did not address the common-law defense of impossibility, which if proven negates the actus reus of a crime. Generally, the commission of a crime requires both an actus reus and a mens rea. Though a strict-liability crime includes no mens rea element, the actus reus, or wrongful act, remains an element of the crime. Specifically, a strict-liability offense requires the prosecution to prove beyond a reasonable doubt that the defendant committed the prohibited act, regardless of the defendant's intent and regardless of what the defendant actually knew or did not know.

A defendant might defend against a strict-liability crime by submitting proofs either that the act never occurred or that the defendant was not the wrongdoer. Additionally, at common law, a defendant could admit that he committed the act, but defend on the basis that the act was committed involuntarily. Examples of involuntary acts that, if proved, provide a defense against the actus reus element of a crime include reflexive actions, spasms, seizures or convulsions, and bodily movements occurring while the actor is unconscious or asleep. The common thread running through these “involuntariness” defenses is that the act does not occur under the defendant's control, and thus the defendant was powerless to prevent its occurrence and cannot be held criminally liable for the act.

MCL 750.165, however, criminalizes an omission, or a failure to act. At common law, an established defense to a crime of omission is impossibility. Like its counterpart, involuntariness, the centuries-old defense of impossibility derives from the English common-law courts. For example, in 1843, the Queen's Bench considered a defendant's liability for failing to repair a portion of highway that had been rendered impassable when the surrounding sea encroached. The Chief Judge stated:

Both the road which the defendant is charged with liability to repair, and the land over which it passes, are washed away by the sea. To restore the road, as [the defendant] is required to do, he  must create a part of the earth anew. . . here all the material of which a road could be made have been swept away by the act of God. Under those circumstances can the defendant be liable for not repairing the road? We want an authority for such a proposition; and none has been found.

The Queen's Bench, then, recognized impossibility of performance as a defense to a charge involving an omission. Like the involuntariness defense to crimes that penalize an affirmative act, the defense of impossibility to crimes that penalize an act of omission must be based on something outside the defendant's control:

Obviously, the involuntariness of omissions cannot be explained in precisely the same way as for actions. It would be odd indeed to talk of a reflex or convulsive omission. Nonetheless, even for omissions the criminal law requires that [a defendant] must be responsible for her behavior before she commits the actus reus of a crime. [The defendant's] omission is involuntary, and her responsibility for the actus reus is negated, when she fails to discharge a duty to intervene because it was impossible for her to do so.

Stated differently, a defendant cannot be held criminally liable for failing to perform an act that was impossible for the defendant to perform. When it is genuinely impossible for a defendant to discharge a duty imposed by law, the defendant's failure is excused.

Michigan common law, which has its roots in the English common law, has also long recognized impossibility as a defense to crimes of omission. In Port Huron v. Jenkinson, this Court considered a city ordinance that criminalized a property owner's failure to repair sidewalks running adjacent to his or her property if the city requested the property owner to make the repair. Jenkinson recognized impossibility as a defense, holding that the defendant could not be criminally convicted of failing to perform a legally required duty when it was impossible for him to do so. The Court in Jenkinson stated:

No legislative or municipal body has the power to impose the duty of performing an act upon any person which it is impossible for him to perform, and then make his non-performance of such a duty a crime, for which he may be punished by both fine and imprisonment. It needs no argument to convince any court or citizen, where law prevails, that this cannot be done; and yet such is the effect of the provisions of the statute and by-law under consideration. It will readily be seen that a tenant occupying a house and lot in the city of Port Huron, and so poor and indigent as to receive support from his charitable neighbors, if required by the city authorities to build or repair a sidewalk along the street in front of the premises he occupies, and fails to comply with such request, such omission becomes criminal; and, upon conviction of the offense, he may be fined and imprisoned. It is hardly necessary to say these two sections of the statute are unconstitutional and void, and that the provisions are of no force or effect. They are obnoxious to our Constitution and laws; and the two sections of the statute are a disgrace to the legislation of the State.

The Court specifically held that a legislative body cannot require a person to perform an act that “is impossible for him to perform” and then impose criminal penalties for the failure to perform that act. Jenkinson, then, recognized common-law impossibility as a defense to a criminal omission.

The language of MCL 750.165 provides no indication that the Legislature intended to abrogate common-law impossibility as a defense to felony nonsupport. Consistently with the Michigan Constitution and absent a clear legislative intent to abolish the common law, we thus presume that the common-law defense of impossibility remains available if supported by sufficient evidence. Accordingly, we hold that genuine impossibility is a defense to the charge of felony nonsupport under  MCL 750.165.62 Just as a defendant cannot be held criminally liable for committing an act that he or she was powerless to prevent, so, too, a defendant cannot be held criminally liable for failing to perform an act that was genuinely impossible for the defendant to perform.

In considering the parameters of the impossibility defense, we find instructive the United States Supreme Court's decision in Bearden v. Georgia, which considered the constitutionality of revoking a criminal defendant's probation for failure to pay a fine. In Bearden, the petitioner was ordered to pay a $500 fine and $250 in restitution as conditions of his probation. He was then laid off from his job and, despite repeated efforts, was unable to find other work. When the petitioner's remaining payments were late, the state revoked his probation because he had not paid the balance. The record from the probation-revocation hearing indicated that the petitioner had been unable to find employment and had no assets or income. The Court held that if a fine is determined to be the appropriate penalty for a crime, the state cannot “imprison a person solely because he lacked the resources to pay it.” Rather, there must be “evidence and findings that the defendant was somehow responsible for the failure....” Bearden directed sentencing courts to consider the reasons for nonpayment and carefully “inquire into the reasons for the failure to pay”:

This distinction, based on the reasons for nonpayment, is of critical importance here. If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense.

Bearden indicated that “if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically....” The Court held that a “lack of fault provides a ‘substantial reason which justifies or mitigates the violation’ and makes revocation inappropriate.”

We recognize that the Court in Bearden dealt with probation revocation for nonpayment of a fine, as opposed to the felony nonsupport at issue in this case, but we are guided by the Court's reasoning, which inquires into and considers an individual's efforts to make a legally required payment. Thus, we hold that to establish an impossibility defense for felony nonsupport, a defendant must show that he or she acted in good faith and made all reasonable efforts to comply with the family court order, but could not do so through no fault of his or her own. In our view, “sufficient bona fide efforts to seek employment or borrow money in order to pay” certainly are expected, but standing alone will not necessarily establish an impossibility defense to a charge under MCL 750.165. Instead, defendants charged with felony nonsupport must make all reasonable efforts, and use all resources at their disposal, to comply with their support obligations. For the payment of child support to be truly impossible, a defendant must explore and eliminate all the reasonably possible, lawful avenues of obtaining the revenue required to comply with the support order. Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay. A defendant's failure to undertake those efforts reflects “an insufficient concern for paying the debt” one owes to one's child, which arises from the individual's responsibility as a parent.

To determine whether a defendant has established impossibility in the context of a felony nonsupport case, we provide, for illustrative purposes only, a nonexhaustive list of factors for courts to consider. These should include whether the defendant has diligently sought employment; whether the defendant can secure additional employment, such as a second job; whether the defendant has investments that can be liquidated; whether the defendant has received substantial gifts or an inheritance; whether the defendant owns a home that can be refinanced; whether the defendant has assets that can be sold or used as loan collateral; whether the defendant prioritized the payment of child support over the purchase of nonessential, luxury, or otherwise extravagant items; and whether the defendant has taken reasonable precautions to guard against financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one's parental responsibility to one's child. The existence of unexplored possibilities for generating income for payment of the court-ordered support suggests that a defendant has not raised a true impossibility defense, but merely an assertion of inability to pay. A defendant's failure to explore every reasonably possible avenue in order to pay his or her support obligation not only reflects “an insufficient concern for paying the debt he owes to society,” it also reflects an insufficient concern for the child. In those instances, the defendant may not invoke the shield of the impossibility defense.

The Likine Court begins its opinion with the conclusion that the legislature made failure to pay a support obligation a strict liability offense. That is, conviction requires only that the defendant failed to meet her obligation, not that she had any mens rea with regard to that failure. It need not be shown that she knew she was not making payments, that she intended not to meet them, etc. The Court also determines that it is permissible for the legislature to do so. We will return to mens rea and strict liability offenses in Part 3 of this course. 

The Court then asks whether it is a defense to the strict liability offense that Likine was incapable of meeting her obligations. Concluding that such a defense is available, the Court ends its opinion with factors for the lower courts to consider when determining whether Likine (and others in her situation) was actually incapable of meeting her obligations (or whether it was just difficult for her to do so). Based on these examples, do you think the Court was creating a broad impossibility exception or a narrow one? Should such an exception properly be broad or narrow? What are the implications of each? Is the scope of this defense related to the considerations we discussed when we read Regina v. Dudley and Stephens earlier in the semester?

Barber v. Superior Court

Court of Appeal, Second District, Division 2, California

195 Cal. Rptr 484 (Cal. Dist. Ct. App. 1983)

Deceased Clarence Herbert underwent surgery for closure of an ileostomy. Petitioner Robert Nejdl, M.D., was Mr. Herbert’s surgeon and petitioner Neil Barber, M.D., was his attending internist. Shortly after the successful completion of the surgery, and while in the recovery room, Mr. Herbert suffered a cardiorespiratory arrest. He was revived by a team of physicians and nurses and immediately placed on life support equipment.

Within the following three days, it was determined that Mr. Herbert was in a deeply comatose state from which he was not likely to recover. Tests and examinations performed by several physicians, including petitioners herein, each specializing in relevant fields of medicine indicated that Mr. Herbert had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent.

At that time petitioners informed Mr. Herbert’s family of their opinion as to his condition and chances for recovery. While there is some dispute as to the precise terminology used by the doctors, it is clear that they communicated to the family that the prognosis for recovery was extremely poor. At that point, the family convened and drafted a written request to the hospital personnel stating that they wanted “all machines taken off that are sustaining life” (sic). As a result, petitioners, either directly or as a result of orders given by them, caused the respirator and other life-sustaining equipment to be removed. Mr. Herbert continued to breathe without the equipment but showed no signs of improvement. The family remained at his bedside and requested of the nursing staff that Mr. Herbert not be disturbed. They even objected to certain routine procedures followed by hospital personnel in caring for comatose patients.

After two more days had elapsed, petitioners, after consulting with the family, ordered removal of the intravenous tubes which provided hydration and nourishment. From that point until his death, Mr. Herbert received nursing care which preserved his dignity and provided a clean and hygienic environment.

The precise issue for determination by this court is whether the evidence presented before the magistrate was sufficient to support his determination that petitioners should not be held to answer to the charges of murder (Pen. Code, § 187) and conspiracy to commit murder (Pen. Code, § 182).

Murder is the unlawful killing of a human being, . . . with malice aforethought.” (Pen. Code, § 187, italics added.) Malice may be express or implied. It is express when there is an intent unlawfully to take any life. It is implied when the circumstances show an abandoned and malignant heart. (Pen. Code, § 188.)

Of course the term homicide simply connotes the death of an individual at the hands of another. In any homicide the end result is the same— the death of a human being. Whether or not a homicide is punishable as a crime in the first instance, and the degree of punishment which is imposed in the case of a criminal homicide depends upon the mental culpability of the person causing the death.

We deal here with the physician’s responsibility in a case of a patient who, though not “brain dead,” faces an indefinite vegetative existence without any of the higher cognitive brain functions. As one court stated the issue: “Now, however, we are on the threshold of new terrain—the penumbra where death begins but life, in some form, continues. We have been led to it by the medical miracles which now compel us to distinguish between ‘death,’ as we have known it, and death in which the body lives in some fashion but the brain (or a significant part of it) does not.” (Severns v. Wilmington Medical Center, Inc. (Del. 1980) 421 A.2d 1334, 1344.)

Because of the current gap between technology and law, physicians and families of these unfortunate victims are called upon to make intensely painful and personal decisions regarding their care without clearly defined legal guidelines.

As a predicate to our analysis of whether the petitioners’ conduct amounted to an “unlawful killing,” we conclude that the cessation of “heroic” life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.

Even though these life support devices are, to a degree, “self-propelled,” each pulsation of the respirator or each drop of fluid introduced into the patient’s body by intravenous feeding devices is comparable to a manually administered injection or item of medication. Hence “disconnecting” of the mechanical devices is comparable to withholding the manually administered injection or medication.

Further, we view the use of an intravenous administration of nourishment and fluid, under the circumstances, as being the same as the use of the respirator or other form of life support equipment.

The prosecution would have us draw a distinction between the use of mechanical breathing devices such as respirators and mechanical feeding devices such as intravenous tubes. The distinction urged seems to be based more on the emotional symbolism of providing food and water to those incapable of providing for themselves rather than on any rational difference in cases such as the one at bench

Medical nutrition and hydration may not always provide net benefits to patients. Medical procedures to provide nutrition and hydration are more similar to other medical procedures than to typical human ways of providing nutrition and hydration. Their benefits and burdens ought to be evaluated in the same manner as any other medical procedure.

In the final analysis, since we view petitioners’ conduct as that of omission rather than affirmative action, the resolution of this case turns on whether petitioners had a duty to continue to provide life sustaining treatment.

There is no criminal liability for failure to act unless there is a legal duty to act. (1 Witkin, Cal. Crimes, § 67, p. 71.) Thus the critical issue becomes one of determining the duties owed by a physician to a patient who has been reliably diagnosed as in a comatose state from which any meaningful recovery of cognitive brain function is exceedingly unlikely.

A physician has no duty to continue treatment once it has proved to be ineffective. Although there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel.

“A physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. . . . If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability. By useless is meant that the continued use of the therapy cannot and does not improve the prognosis for recovery.”

The evidence presented at the preliminary hearing supports the conclusion that petitioners reasonably concluded that Mr. Herbert had virtually no chance of recovering his cognitive or motor functions. The most optimistic prognosis provided by any of the testifying experts was that the patient had an excellent chance of “recovery.” However, recovery was defined in terms of a spectrum running from a persistent vegetative state to full recovery. A persistent vegetative state was described as that state in which the patient would have" no contact with the environment but parts of the brain would continue to live. The doctor who was of course approaching the case after the fact and from a hindsight view, was unable to predict where on this continuum Mr. Herbert was likely to end up. Several studies on which the expert relied, however, indicated that the chances for unimpaired or full recovery were miniscule. The results of these studies coincided with the diagnoses of the physicians who had actually examined and dealt with the patient before his demise.

In summary we conclude that the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty. In view of our decision on that issue, it becomes unnecessary to deal with the further issue of whether petitioners’ conduct was in fact the proximate cause of Mr. Herbert’s ultimate death.

The evidence amply supports the magistrate’s conclusion. The superior court erred in determining that as a matter of law the evidence required the magistrate to hold petitioners to answer.

Let a peremptory writ of prohibition issue to restrain the Superior Court of Los Angeles County from taking any further action in this matter other than to vacate its order reinstating the complaint and enter a new and different order denying the People’s motion under Penal Code section 871.5.

Barber v. Superior Court is a case about lawyering and sleight of hand. The Court's opinion is, I would argue, so good that the reader doesn't notice the sleight of hand that is involved.

The court describes this as a case about omission in the absence of a duty to act. But is that an accurate way to describe what happened here? Didn't the caregivers in this case take a number of affirmative steps to hasten Mr. Herbert's death? And didn't those steps have the desired outcome? That is, didn't the caregivers intentionally, and after deliberation, cause the death of Mr. Herbert? If so, why aren't they guilty of first degree murder, an offense punishable by death at the time in California?