2 The General Part: Actus Reus 2 The General Part: Actus Reus
2.1 Class #4: The Act Requirement (Actus Reus) 2.1 Class #4: The Act Requirement (Actus Reus)
We begin our study of the “general part” of the criminal law (act, mental state, causation, and concurrence) with the simplest of the four topics: the act. Actus reus doctrine can be reduced to two basic questions: (1) What is an act?, and (2) When can an omission count as an act? There are two related policy questions: (1) Why require an act at all (i.e., why not punish thought crimes)?, and (2) Why not punish omissions when an individual’s failure to act demonstrates moral depravity or dangerousness?
Before you start reading the cases, answer these statutory questions:
1. Statutory analysis: How does the Model Penal Code define an “act”?
2. Statutory analysis: How does the Model Penal Code define a “voluntary act”?
2.1.1 The Act Requirement: Martin v. State 2.1.1 The Act Requirement: Martin v. State
As you read Martin, consider the following questions:
1. What was Martin charged with?
2. What are the elements of that offense?
3. What did Martin do?
4. What was Martin’s defense (i.e., which element is in dispute)?
5. What was the Court’s holding? Why?
MARTIN
v.
STATE.
Appeal from Circuit Court, Houston County; D. C. Halstead.
Cephus Martin was convicted of public drunkenness, and he appeals.
Reversed and rendered on rehearing.
W. Perry Calhoun, of Dothan, for appellant.
The original arrest being unlawful and without a warrant, the subsequent happenings by appellant should not be used against him to make out a Case of public drunkenness. If appellant’s acts were the result of compulsion and duress, this is a good defense. Browning v. State, ante, p. 137, 13 So.2d 54; Gassenheìmer v. State, 52 Ala. 313.
Wm. N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty. Gen., for the State.
It is no defense to the perpetration of a crime that facilities for its commission were purposely placed in the way. Nelson v. City Of Roanoke, Z4 Ala.App. 277, 135 So. 312. Compulsion which will excuse crime must be Present, imminent and impending and of Such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Such compulsion must have arisen without the fault or negligence of the person asserting it as a defense. 22 Criminal Law, page 99, 44; 16 CJ. 91; Moore v. State, 23 Ala. App. 432, 127 So. 796; Thomas v. State, 134 Ala. 126, 33 So.« 130; Browning v. State, ante, p. 137, 13 So.2d 54. Burden of proving defense of duress is upon accused. 22 C.]. S., Criminal Law, page 888, 575.
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”, etc. Code 1940, Title 14, Section 120.
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. Thomas v. State, 33 Ga. 134, 125 S.E. 778; Reddick v. State, 35 Ga. 256, 132 S.E. 645; Gunn v. State, 37 Ga. 333, 140 S.E. 524; 28 C.]. S., Drunkards, 14, p. 560.
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 prevai1ing rule, the judgment of the trial court is reversed and one here rendered discharging appellant. Code 1940, Title 7, Section 260; Robison v. State, 30 Ala.App. 12, 200 So. 626; Atkins v. State, 27 Ala.App. 212, 169 So. 330.
Of consequence, our original opinion of affordance was likewise laid in error. It is therefore withdrawn.
Reversed and rendered.
2.1.2 The Act Requirement: Practice Questions 2.1.2 The Act Requirement: Practice Questions
The Act Requirement:
1. Practice true/false question: Victor and David are roommates. Fed up with Victor’s hygiene habits, David decides to kill Victor. David’s plan is to put rat poison in Victor’s coffee. But David oversleeps and Victor leaves before David gets a chance to poison the coffee. True or false: David is not guilty of any crime.
2. Policy questions: Is David dangerous? Did he make a culpable choice? Should he be punished? Why or why not (i.e., what are the policies underlying the “act” requirement)?
3. Practice Essay Question: D, who knew he was subject to epileptic seizures, suffered an attack while driving his car and, during the seizure, struck and killed four children. D was charged with “operating a vehicle in a reckless or culpably negligent manner, causing the death of four persons.” Will D be guilty? Analyze.
2.1.3 The Voluntary Act Requirement: State v. Utter 2.1.3 The Voluntary Act Requirement: State v. Utter
As you read Utter, consider the following questions:
1. What was Utter charged with?
2. What are the elements of that offense?
3. What did Utter do?
4. What was his defense?
5. What happened at trial?
6. What was the appellate court’s holding?
7. If Utter had been in an “automatistic state” during the crime, would he have had a valid defense? Why?
8. Why not punish involuntary acts that are nevertheless dangerous (i.e., what are the policies underlying the “voluntary act” requirement)?
[No. 611-41091-1.
Division One—Panel 1.
January 25, 1971.]
The State of Washington, Respondent, v. Claude Gilbert Utter, Appellant.
*138Hohlbein, Vanderhoef, Sawyer & Hartman and Wesley G. Hohlbein, for appellant (appointed counsel for appeal).
Christopher T. Bayley, Prosecuting Attorney, and Paul M. Acheson, Deputy, for respondent.
Claude Gilbert Utter was. charged by an information filed January 16,1969, with the crime of murder in the second degree. He was convicted by a jury of the crime of manslaughter. He appeals from that conviction.
Appellant and the decedent, his son, were living together at the tune of the latter’s death. The son was seen to enter his father’s apartment and shortly after was heard to say, “Dad, don’t.” Shortly thereafter he was seen stumbling in the hallway of the apartment building where he collapsed, having been stabbed in the chest. He stated, “Dad stabbed me” and died before he could be moved or questioned further.
Mr. Utter entered the armed services in December of 1942 and was honorably discharged in October of 1946. He was a combat infantryman. As a result of his service, he was awarded a 60 per cent disability pension.
Appellant testified that on the date of his son’s death he began drinking during the morning hours. He was at the liquor store at 9 a.m. and purchased a quart of Thunderbird wine and a quart of port wine and drank the bottle of port wine with the exception of two drinks. Mr. Utter went for more liquor around noon. At that time he purchased 2 quarts of whiskey and 4 quarts of wine. Upon his return from the liquor store, he and another resident of the apartment “sat around drinking whiskey out of water glasses.” *139Appellant remembers drinking with his friend and the next thing he remembers was being in jail subsequent to the death of his son. He has no recollection of any intervening events.
Appellant introduced evidence on “conditioned response” during the trial. Conditioned response was defined by Dr. Jarvis, a psychiatrist, as “an act or a pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.” Mr. Utter testified that as a result of his jungle warfare training and experiences in World War II, he had on two occasions in the 1950’s reacted violently towards people approaching him unexpectedly from the rear.
The trial court ruled that conditioned response was not a defense in Washington and instructed the jury to disregard all evidence introduced on this subject. Appellant contends that this evidence was not introduced as a defense. In this assertion, appellant is incorrect since if the evidence was received and believed by the jury, the result would be his exculpation. Therefore, it must be considered to be a defense to the crime.
The major issue presented on appeal is whether it was error for the trial court to instruct the jury to disregard the evidence on conditioned response. The trial court held that the defendant was attempting to present a defense of irresistible impulse — a theory of criminal insanity that has consistently been rejected in this state. In so holding, the trial court considered the defense to be one of mental incapacity. This was not so.
There are two components of every crime. One is objective — the actus reus; the other subjective — the mens rea. The actus reus is the culpable act itself, the mens rea is the criminal intent with which one performs the criminal act. However, the mens rea does not encompass the entire mental process of one accused of a crime. There is a certain minimal mental element required in order to establish the actus reus itself. This is the element of volition. See Sim, The Involuntary Actus Reus, 25 Modern L. Rev. 741 (1962).
*140In the present case, the appellant was charged with second-degree murder and found guilty of manslaughter. The actus reus of both is the same — homicide. Thus, in order to establish either, the fact of homicide must first be established.
Appellant contends that his evidence was presented for the purpose of determining whether in fact a homicide had been committed. He argues that his evidence, if believed, establishes that no “act” was committed within the definition of homicide, RCW 9.48.010 (since amended by Laws of 1970, Ex. Ses., ch. 49, § 1, p. 333):
Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.
What is the meaning of the word “act” as used in this statute?
It is sometimes said that no crime has been committed unless the harmful result was brought about by a “voluntary act.” Analysis of such a statement will disclose, however, that as so used the phrase “voluntary act” means no more than the mere word “act.” An act must be a willed movement or the omission of a possible and legally-required performance. This is essential to the actus reus rather than to the mens rea. “A spasm is not an act.”
(Footnotes omitted.) R. Perkins, Criminal Law 660 (1957).
[A]n ‘act’ involves an exercise of the will. It signifies something done voluntarily. It necessarily implies intention. We find these statements abundantly sustained by the text-writers and decisions of our courts.
Heiman v. Pan American Life Ins. Co., 183 La. 1045, 1061, 165 So. 195 (1935). See also Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132 (1951); Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358 (1937); Duncan v. Landis, 106 F. 839 (3d Cir. 1901).
Thus, to invert the statement of Perkins, the word “act” technically means a “voluntary act.” See State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).
*141It is the appellant’s contention that any of the alleged “acts” he committed were not those which involved mental processes, but rather were learned physical reactions to external stimuli which operated automatically on his autonomic nervous system. Although the theory sought to be presented by the appellant is similar to one of mental incapacity, it is nevertheless distinct from that concept.
automatistic acts are concomitants of mental disturbance of some kind. The mental disturbance may or may not be sufficient to establish legal insanity. Indeed, it would generally appear to be true that where the defendant’s acts are automatistic in character he cannot be said to have capacity to know their nature, and where he lacks capacity to know the nature of his acts, those acts must be said to be automatistic. Yet the automatistic acts may not be the result of a mental disease [Mr. Utter claims here that they are the result of military training] and hence not sufficient to constitute legal insanity. In any event, it is important to emphasize that whether or not the mental disturbance associated with the acts of automatism is equivalent to legal insanity, it is universally recognized that evidence of this character goes toward the exculpation of the accused, rather than mitigation to a lesser offense. And the exculpation is not of the qualified character attached to a verdict of not guilty on grounds of insanity. It is complete.
M. Paulsen and S. Kadish, Criminal Law and Its Processes. 347 (1962).
Appellant contends that a person in an automatistic or unconscious state is incapable of committing a culpable act —in this case, a homicidal act.
The question is not one of mental incapacity. “Criminal responsibility must be judged at the level of the conscious.” State v. Sikora, 44 N.J. 453, 470, 210 A.2d 193 (1965).
There is authority to support the proposition of the appellant.
Where, at the time of the killing, the slayer was clearly unconscious thereof, such unconsciousness will constitute a defense, as in the case of a homicide committed by one in a state of somnambulism, or while delirious from disease.
*142(Footnotes omitted.) O. Warren and B. Bilas, 1 Warren on Homicide § 61 (perm. ed. 1938).
If a person is in fact unconscious at the time he commits an act which would otherwise be criminal, he is not responsible therefor.
The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.
(Footnotes omitted.) R. Anderson, 1 Wharton’s Criminal Law and Procedure § 50 (1957). A number of cases support these statements. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); People v. Wilson, 66 Cal. 2d 749, 427 P.2d 820, 59 Cal. Rptr. 156 (1967); People v. Anderson, 63 Cal. 2d 351, 406 P.2d 43, 46 Cal. Rptr. 763 (1965); Watkins v. Commonwealth, 378 S.W.2d 614 (Ky. 1964); Carter v. State, 376 P.2d 351 (Okla. Crim. 1962); People v. Gorshen, 51 Cal. 2d 716, 336 P.2d 492 (1959); Corder v. Commonwealth, 278 S.W.2d 77 (Ky. 1955); People v. Baker, 42 Cal. 2d 550, 268 P.2d 705 (1954); Smith v. Commonwealth, 268 S.W.2d 937 (Ky. 1954); Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213 (1879). See also, 22 C.J.S. Criminal Law § 55 (1961); 21 Am. Jur. 2d Criminal Law § 29 (1965).
In State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910) the Washington Supreme Court considered the constitutionality of a statute which withdrew the defense of insanity from those defenses that could be raised in this state. In holding the statute unconstitutional, the court made an extensive review of basic tenets of criminal law and noted in part as follows:
“All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable.
*143“Without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offense, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offenses.”
State v. Strasburg, supra at 113.
An “act” committed while one is unconscious is in reality no act at all. It is merely a physical event or occurrence for which there can be no criminal liability. However, unconsciousness does not, in all cases, provide a defense to a crime. When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, then that state of unconsciousness does not attain the stature of a complete defense. Thus, in a case such as the present one where there is evidence that the accused has consumed alcohol or drugs, the trial court should give a cautionary instruction with respect to voluntarily induced unconsciousness.
The issue of whether or not the appellant was in an unconscious or automatistic state at the time he allegedly committed the criminal acts charged is a question of fact. Appellant’s theory of the case should have been presented to the jury if there was substantial evidence in the record to support it.
It is the function and province of the jury to weigh evidence and determine credibility of witnesses and decide disputed questions of fact. State v. Dietrich, 75 Wn.2d 676, 453 P.2d 654 (1969). However, a court should not submit to the jury an issue of fact unless there is substantial evidence in the record to support it. State v. Brooks, 73 Wn.2d 653, 440 P.2d 199 (1968); State v. Collins, 66 Wn.2d 71, 400 P.2d 793 (1965).
We find that the evidence presented was insufficient to present the issue of defendant’s unconscious or automatistic state at the time of the act to the jury. There is no evidence, circumstantial or otherwise from which the jury could determine or reasonably infer what happened in the room at the time of the stabbing; the jury could only speculate on the existence of the triggering stimulus.
*144Appellant contends that- it was error for the trial court to instruct the jury on manslaughter. This assignment of error is founded upon the allegation that the record contains no evidence to support such an instruction.
Manslaughter includes all homicides not falling within the definitions of murder in the first or second degree, or excusable or justifiable homicide. State v. Hedges, 8 Wn.2d 652, 113 P.2d 530 (1941). The trial court ruled that the homicide was neither justifiable nor excusable. Evidence was introduced regarding appellant’s drinking habits, the amount he drank that day, and the fact that he was an alcoholic. Evidence of voluntary intoxication can be presented as a defense to a crime where intent is an element. RCW 9.01.114; State v. Byers, 136 Wash. 620, 241 P. 9 (1925). Furthermore, criminal intent is not an element of manslaughter. State v. Brubaker, 62 Wn.2d 964, 385 P.2d 318 (1963); State v. Hopkins, 147 Wash. 198, 265 P. 481, 59 A.L.R. 688 (1928). The evidence regarding appellant’s drinking was sufficient to negative the criminal intent required for a conviction of second-degree murder and necessitated the giving of the manslaughter instruction. It was therefore proper for the trial court to so instruct the jury.
The trial court gave instruction 9:
The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts.
Appellant contends that this was a comment upon the evidence and denied him his right to a trial by jury. We do not agree. “Voluntary” is included in the definition of the word “act.”1 The insertion of the word “voluntary” might improve the instruction but it is not constitutionally required. Under our determination of the issues it was not error to submit the instruction.2
Affirmed.
James and Swanson, JJ., concur.
2.1.4 Omissions: People v. Beardsley 2.1.4 Omissions: People v. Beardsley
As you read Beardsley, consider the following questions:
1. What was the charge? What are the elements of that charge?
2. What happened in this case? How exactly did Blanche Burns die? What exactly did Beardsley do while Blanche was in his apartment?
3. What happened at trial? What is the issue on appeal?
4. How do you feel about Beardsley’s conduct? Should he be condemned for what he did (or didn’t do)? Should he be punished?
5. What are the five situations in which the common law imposed criminal responsibility for a failure to act? Be a creative prosecutor: What arguments could you make that one or more of the common law duties could have applied to Beardsley?
206 150 MICHIGAN REPORTS.
PEOPLE v. BEARDSLEY.
Error to Oakland; Smith, J.
Submitted April 18, 1907.
(Docket No. 62.)
Decided December 10, 1907.
Carroll Beardsley was convicted of manslaughter, and sentenced to imprisonment for not less than one nor more than five years in the State prison at Jackson. Reversed, and respondent discharged.
Aaron Perry and M. F. Lillis, for appellant.
Frank L. Covert, Prosecuting Attorney, and Charles 8. Matthews, Assistant Prosecuting Attorney, for the people.
MCALVAY, C. J. Respondent was convicted of manslaughter before the circuit court for Oakland county, and was sentenced to the State prison at Jackson for a minimum term of one year and a maximum term not to exceed five years. He was a married man living at Pontiac, and at the time the facts herein narrated occurred, he was working as a bartender and clerk at the Columbia Hotel. He lived with his wife in Pontiac, occupying two rooms on the ground floor of a house. Other rooms were rented to tenants, as was also one living room in the basement. His wife being temporarily absent from the city, respondent arranged with a woman named Blanche Burns, who at the time was working at another hotel, to go to his apartments with him. He had been acquainted with her for some time. They knew each others habits and character. They had drunk liquor together, and had on two occasions been in Detroit and spent the night together in houses of assignation. On the evening of Saturday, March 18, 1905, he met her at the place where she worked, and they went together to his place of residence. They at once began to drink and continued to drink steadily, and remained together, day and night, from that time until the afternoon of the Monday following, except when respondent went to his work on Sunday afternoon. There was liquor at these rooms, and when it was all used they were served with bottles of whiskey and beer by a young man who worked at the Columbia Hotel, and who also attended respondent's fires at the house. He was the only person who saw them in the house during the time they were there together. Respondent gave orders for liquor by telephone. On Monday afternoon, about one o'clock, the young man went to the house to see if anything was wanted. At this time he heard respondent say they must fix up the rooms, and the woman must not be found there by his wife, who was likely to return at any time. During this visit to the house the woman sent the young man to a drug store to purchase, with money she gave him, camphor and morphine tablets. He procured both articles. There were six grains of morphine in quarter-grain tablets. She concealed the morphine from respondent's notice, and was discovered putting something into her mouth by him and the young man as they were returning from the other room after taking a drink of beer. She in fact was taking morphine. Respondent struck the box from her hand. Some of the tablets fell on the floor, and of these, respondent crushed several with his foot. She picked up and swallowed two of them, and the young man put two of them in the spittoon. Altogether it is probable she took from three to four grains of morphine. The young man went away soon after this. Respondent called him by telephone about an hour later, and after he came to the house requested him to take the woman into the room in the basement which was occupied by a Mr. Skoba. She was in a stupor and did not rouse when spoken to. Respondent was too intoxicated to be of any assistance and the young man proceeded to take her downstairs. While doing this Skoba arrived, and together they put her in his room on the bed. Respondent requested Skoba to look after her, and let her out the back way when she waked up. Between nine and ten o'clock in the evening Skoba became alarmed at her condition. He at once called the city marshal and a doctor. An examination by them disclosed that she was dead.
Many errors are assigned by respondent, who asks to have his conviction set aside. The principal assignments of error are based upon the charge of the court, and refusal to give certain requests to charge, and are upon the theory that under the undisputed evidence in the case, as claimed by the people and detailed by the people's witnesses, the respondent should have been acquitted and discharged. In the brief of the prosecutor his position is stated as follows:
"It is the theory of the prosecution that the facts and circumstances attending the death of Blanche Burns in the house of respondent were such as to lay upon him a duty to care for her, and the duty to take steps for her protection, the failure to take which, was sufficient to constitute such an omission as would render him legally responsible for her death. * * * There is no claim on the part of the people that tie respondent * * * was in any way an active agent in bringing about the death of Blanche Burns, but simply that he owed her a duty which he failed to perform, and that in consequence of such failure on his part she came to her death."
Upon this theory a conviction was asked and secured.
The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. 21 Cyc. p. 770 et seq., and cases cited. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. 1 Bishop on Criminal Law (6th Ed.), § 217; 2 Bishop on Criminal Law (6th Ed.), § 695; 21 Am. & Eng. Enc. Law (2d Ed.), p. 99; 21 Cyc. p. 770 et seq.; State v. Noakes, 70 Vt. 247; 2 Wharton on Criminal Law (7th Ed.), § 1011; Clark & Marshall on Crimes (2d Ed.), p. 379 (e), and cases cited.
Although the literature upon the subject is quite meagre and the cases few, nevertheless, the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows:
"If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him as be might have done with- out jeopardizing his own life or the lives of others, he is guilty of manslaughter at least, if by reason of his omis- sion of duty the dependent person dies.
"So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body, is bound to execute the charge with proper diligence and will be held guilty of manslaughter, if by culpable negligence he lets the helpless creature die." 21 Am. & Eng. Enc. Law (2d Ed.), p. 197, notes and cases cited.
The following brief digest of cases gives the result of our examination of American and English authorities, where the doctrine of criminal liability was involved when death resulted from an omission to perform a claimed duty. We discuss no cases where statutory provisions are involved.
In Territory v. Manton, 8 Mont. 95, a husband was convicted of manslaughter for leaving his intoxicated wife one winter's night lying in the snow, from which exposure she died. The conviction was sustained on the ground that a legal duty rested upon him to care for and protect his wife, and that his neglect to perform that duty, resulting in her death, he was properly convicted.
State v. Smith, 65 Me. 257, is a similar case. A husband neglected to provide clothing and shelter for his insane wife. He left her in a bare room without fire during severe winter weather. Her death resulted. The charge in the indictment is predicated upon a known legal duty of the husband to furnish his wife with suitable protection.
In State v. Behm, 72 Iowa, 533, the conviction of a mother of manslaughter for exposing her infant child without protection, was affirmed upon the same ground. See, also, Gibson v. Commonwealth, 106 Ky. 360.
State v. Noakes, supra, was a prosecution and conviction of a husband and wife for manslaughter. A child of a maid servant was born under their roof. They were charged with neglecting to furnish it with proper care. In addition to announcing the principle in support of which the case is already cited, the court said:
"To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal, legal duty, the natural and ordinary consequences of neglecting which would be dangerous to life."
In reversing the case for error in the charge—not necessary to here set forth—the court expressly stated that it did not concede that respondents were under a legal duty to care for this child because it was permitted to be born under their roof, and declined to pass upon that question.
In a Federal case tried in California before Mr. Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard, the learned Justice in charging the jury said:
"There may be in the omission to do a particular act under some circumstances, as well as in the commission of an act, such a degree of criminality as to render the offender liable to indictment for manslaughter. * * * In the first place the duty omitted must be a plain duty * * * In the second place it must be one which the party is bound to perform by law or contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety." United States v. Knowles, 4 Sawyer (U. S.), 517.
The following English cases are referred to as in accord with the American cases above cited, and are cases where a clear and known legal duty existed: Beg. v. Conde, 10 Cox Crim. Cas. 547; Beg. v. Bugg, 12 Cox Crim. Cas. 16.
The case of Beg. v. Nicholls, 13 Cox Crim. Cas. 75, was a prosecution of a penniless old woman, a grandmother, for neglecting to supply an infant grandchild left in her charge with sufficient food and proper care. The case was tried at assizes in Stafford before Brett, J., who said to the jury:
"If a grown up person chooses to undertake the charge of a human creature, helpless either from infancy, simplicity, lunacy, or other infirmity, be is bound to execute that charge without (at all events) wicked negligence, and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter."
The vital question was whether there had been any such negligence in the case designated by the trial judge as wicked negligence. The trial resulted in an acquittal. The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and having assumed it, will beheld to be under an implied legal duty to care for and protect such person. The duty assumed being that of care taker and protector to the exclusion of all others.
Another English case decided in the appellate court, Lord Coleridge, C. J., delivering the opinion, is Reg. v. Instan, 17 Cox Crim. Cas. 602. An unmarried woman without means lived with and was maintained by her aged aunt. The aunt suddenly became very sick, and for ten days before her death was unable to attend to herself, to move about, or to do anything to procure assistance. Before her death no one but the prisoner had any knowledge of her condition. The prisoner continued to live in the house at the cost of the deceased and took in the food supplied by the tradespeople. The prisoner did not give food to the deceased, or give or procure any medical or nursing attendance for her; nor did she give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. In the opinion, Lord Coleridge, speaking for the court, said:
"It is not correct to say that every moral obligation is a legal duty; but every legal duty is founded upon a moral obligation. In this case, as in most cases, the legal duty can be nothing else than taking upon one's self the performance of the moral obligation. There is no ques- tion whatever that it was this woman's clear duty to impart to the deceased so much of that food, which was taken into the house for both and paid for by the deceased, as was necessary to sustain her life. The deceased could not get it for herself. She could only get it through the prisoner. It was the prisoner's clear duty at common law to supply it to the deceased, and that duty she did not periorm. Nor is there any question that the prisoner's failure to discharge her legal duty, if it did not directly cause, at any rate accelerated, the death of the deceased. There is no case directly on the point; but it would be a slur and a stigma upon our law if there could be any doubt as to the law to be derived from the principle of de- cided cases, if cases were necessary. There was a clear moral obligation, and a legal duty founded upon it; a duty willfully disregarded and the death was at least accelerated, if not caused, by the nonperformance of the legal duty."
The opening sentences of this opinion are so closely connected with the portion material to this discussion that they could not well be omitted. Quotation does not necessarily mean approval. We do not understand from this opinion that the court held that there was a legal duty founded solely upon a moral obligation. The court indicated that the law applied in the case was derived from the principles of decided cases. It was held that the prisoner had omitted to perform that which was a clear duty at the common law. The prisoner had wrongfully appropriated the food of the deceased and withheld it from her. She was the only other person in the house, and had assumed charge of her helpless relative. She was under a clear legal duty to give her the food she withheld, and under an implied legal duty by reason of her assumption of charge and care, within the law as stated in the case of Reg. v. Nicholls, supra. These adjudicated cases and all others examined in this investigation we find are in entire harmony with the proposition first stated in this opinion.
Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to
save her; the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent it must arise by implication from the facts and circumstances already recited. The record in this case discloses that the deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxicants. She previously had made assignations with this man in Detroit at least twice. There is no evidence or claim from this record that any duress, fraud, or deceit had been practiced upon her. On the contrary it appears that she went upon this carouse with respondent voluntarily and so continued to remain with him. Her entire conduct indicates that she had ample experience in such affairs.
It is urged by the prosecutor that the respondent "stood towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform." The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife, as seems to be intimated by the prosecutor's brief. Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion. Had this been a case where two men under like cir- cumstances had voluntarily gone on a debauch together and one had attempted suicide, no one would claim that this doctrine of legal duty could be invoked to hold the other criminally responsible for omitting to make effort to rescue his companion. How can the fact that in this case one of the parties was a woman, change the principle of law applicable to it? Deriving and applying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. We find no more apt words to apply to this case than those used by Mr. Justice Field in United States v. Knowles, supra.
"In the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistance when in danger; * * * and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society."
Other questions discussed in the briefs need not be considered. The conviction is set aside, and respondent is ordered discharged.
MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred.
2.1.5 Omissions: Note on Legal Duties 2.1.5 Omissions: Note on Legal Duties
As Beardsley makes clear, the law imposes criminal responsibility for inaction only when the defendant has a “legal duty.” Over time, the common law came to recognize five such duties:
- Statutory. These duties are rare. The broadest is the obligation to file tax returns and pay taxes. Beyond that, some states impose criminal responsibility on "mandatory reporters" who do not file the appropriate reports (typically regarding child abuse). And, a few states have Good Samaritan statutes (though those tend to be more symbolic than punitive).
- Status/Relationship. As Beardsley makes clear, few relationships give rise to a legal duty. In most states, there are only two: (a) spouse to spouse; and (b) parent to child.
- Contractual. In a variety of situations, an explicit or implicit agreement to care for another person will create a legal duty. For example, babysitters, lifeguards, and doctors may all be found to have agreed to care for their charges, swimmers, and patients. (But note: doctors do not have a general duty to help others--only the particular patients under their care).
- Voluntary Assumption of Care and Seclusion: Sometimes, a defendant who starts helping someone might, by nature of starting to help, acquire an obligation to continue that help, especially if the defendant has placed the victim in a worse position. Regina v. Instan (the niece who was living with her aunt, cited in Beardsley) has been shoehorned into this category.
- Creation of the Peril: If a defendant causes the injury/risk/peril, then the defendant may have a legal obligation to come to the victim's aid.
2.1.6 Omissions: Practice Questions 2.1.6 Omissions: Practice Questions
The Omissions Rule:
1. Practice true/false question: David wants to kill his roommate Victor, but has not yet figured out how. One morning, as Victor is making his morning coffee, David realizes that Victor is mistakenly putting rat poison instead of sugar into the coffee. David knows that the rat poison is lethal, but he says nothing. After a few sips, Victor grabs his throat, gasps “call 911,” and collapses. David does nothing. About 30 minutes later, Victor dies. True or false: David is not guilty of any crime.
2. Practice essay question: Debbie and Victor lived together, unmarried, for six years. They were in the process of ending what was described as a stormy relationship. When Debbie came home one day, she found many of her belongings destroyed and the telephone ripped out of the wall. When she confronted Victor about this in the kitchen, he physically grabbed her by the hair, and slammed her head into the stove, saying “I’m going to kill you.” Fearing for her life, Debbie reached for a knife and stabbed Victor. Debbie then fled to the bedroom. Returning a few minutes later, She discovered a trail of blood leading into the living room and then onto the front porch, where she found Victor lying face down. She turned him over. He was unresponsive, but alive. Debbie then drove away, without calling for medical assistance. About an hour later, a third party called for an ambulance. By the time police deputies and medics arrived, Debbie had returned to the house. She was subsequently charged with negligent homicide of Victor, who died from his injuries. Is Debbie guilty of homicide? Analyze.
2.1.7 (REVISED) Optional: Good Samaritan Statutes 2.1.7 (REVISED) Optional: Good Samaritan Statutes
2.1.7.1 Good Samaritan Statutes 2.1.7.1 Good Samaritan Statutes
Good (and Bad) Samaritans
The Biblical story "Good Samaritan" is designed to illustrate a basic moral principle: we have an obligation to come to the aid of our neighbors. But, as we saw in Beardsley, the law generally does not impose that obligation.
1. How do you feel about that conflict between the law and basic morality?
2. Why not create a statute that would require people to come to the aid of others?
3. Consider the case of David Cash, summarized in the 60 Minutes excerpt liked below. Is he culpable? Should he be punished?
4. How would you draft a “Good Samaritan” statute that could have prompted David Cash to act (or at least would have allowed him to be punished)?
2.1.7.2. The Bad Samaritan Part 1 of 2 - YouTube
Story of David Cash Part 1
2.1.7.3. The Bad Samaritan Part 2 of 2 - YouTube
Story of David Cash Part 2
2.2 Assignment: Practice Exam #1 2.2 Assignment: Practice Exam #1
This practice exam will be posted on Canvas. In praparation for the practice exam, and as part of this assignment, please review your notes and prepare an outline of what we've covered so far.