Journal of Criminal Law and Criminology Volume 31 Article 1 Issue 2 July-August

Summer 1940 Assault and Battery by the Reckless Motorist Livingston Hall

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Recommended Citation Livingston Hall, Assault and Battery by the Reckless Motorist, 31 Am. Inst. Crim. L. & Criminology 133 (1940-1941)

This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. ASSAULT AND BATTERY BY THE RECKLESS MOTORIST Livingston Hall* The tendency to use negligence or mobile" was developed by resourceful recklessness in the criminal law as a courts as a means of securing a suitable basis for conviction, in place of the re- penalty to be imposed upon the reck- quirement in the early law of inten- less driver who has caused personal tional wrongdoing, has been a charac- injury, not resulting in death, where teristic of the law for centuries. Per- the penalties for the statutory offense haps the most striking feature in this of reckless driving were inadequate.1 development in recent times has been If this were true, and if although legis- the efflorescence of the concept of reck- latures meant to impose a low penalty, lessness as a basis of conviction for courts arbitrarily expanded another assault and battery, without proof of crime to reach a different result, it a clear-cut intent to inflict injury, would indeed be unfortunate judicial 2 where bodily injury less than death has legislation. resulted from the defendant's act or This proposition raises important omission. The Age of Invention has questions in the development of the come, developing devices of a deadli- criminal law, and seems to warrant a ness formerly unknown and requiring careful re-examination of the auiomo- for their safe handling a high degree bile assault cases, and an investigation of care, and a considerable number of of the earlier cases dealing with reck- such convictions appear in the books lessness as a basis for liability for as- and on the court records. sault and battery. As in the field of torts, it is the auto- The results of this investigation do mobile which now accounts for most not wholly bear out Professor Tulin's of these recklessness cases. It was sug- thesis. It appears that the concept of a gested by the late Professor Tulin a "reckless battery" was fully developed dozen years ago that the concept of in the United States before the first "assault by the reckless use of an auto- automobile cases were decided, and * Professor of Law, Harvard University. For pretation of statutes has been condemned in the assistance in preparing this article, the Wvriter is strongest terms. Landis, A Note on "Statutory indebted to Selig J. Seligman, a third year stu- Interpretation," (1930) 43 Harv. L. Rev. 886. dent at the Harvard Law School. Quite as improper is the unwarranted extension 1 Tuin, The Role of Penaltiesin Criminal Law, of criminal liability through the development of new common law crimes. See notes in (1933) (1928) 37 Yale L. J. 1048, hereafter cited as 49 L. Q. Rev. 183 and (1934) 5 Camb. L. J.263, "Tulin" It is not clear whether or not this theory criticizing the decision in Rex v. Manley, (1933) is adopted in the note in (1939) 16 N. Y. U. I. Q. 1 K. B. 529, which created the offence of "public Rev. 290 at 294, on the influence of the doctrine mischief" tc convict a woman for falsely stating of criminal intent on criminal legislation affect- to the police that she had been robbed, and caus- ing motor vehicles. ing them to waste time investigating the false 2 Judicial legislation through spurious inter- charge. [133] LIVINGSTON HALL that the latter bad their roots in deci- "depraved conduct" which is sufficient sions going back at least 50 years. The for murder, differ from intent in that law of battery developed during the lat- the actor does not desire to accomplish ter half of the 19th century along com- the harmful consequence in question, mon law principles, from intent to nor does he know that it is substan- recklessness, in the same manner as the tially certain to result. Liability is law of manslaughter (and in cases of predicated upon the fact that he has extreme recklessness, of murder) had created an unreasonable risk that it unfolded two centuries earlier. The will result. The magnitude of the risk coming of the automobile, and the de- required, to make it unreasonable, de- sire of prosecutors for heavier penalties pends upon the social utility of the than many reckless driving statutes act done, and upon whether a convic- permit, have done no more than pro- tion is sought for battery or man- vide numerous modem instances of this slaughter, on the one hand, or for development. murder.5 A working distinction between reck- Whether or not it is also necessary lessness and intent must be made be- to prove that the defendant knew the fore we can proceed with the discus- magnitude of the risk is a question sion. There is an extensive literature upon which the authorities are not on the subject, s but for our purposes we clear. In the absence of some serious may regard an actor as intending those mistake of fact by the defendant, often consequences of an act which (a) he based upon intoxication or insanity, it desires to accomplish, or (b) he knows is usually immaterial which view as to are substantially certain to be produced awareness is adopted. In cases where by his act.' To say that a man is "pre- awareness is not in issue, obviously the sumed to intend the probable conse- degree of risk involved will, as it in- quences of his acts" is to conceal, by creases, run from negligence through the use of an irrebuttable presumption recklessness and the "depraved heart" of law, the fact that he need not intend to intent, without any fixed boundary. the consequences in order to be liable. Nevertheless, the distinction has mean- Negligence, recklessness, and the ing, hard to phrase though it may be,

a One of the most complete treatments of the read to extend to all intended consequences, but subject is found in Cook, Act, Intention and Mo- only to consequences which the actor desired to tive in the Criminal Law, (1917) 26 Yale L. J. produce. 645 at 654-8. 5In Pennsylvania, a greater degree of reck- 4 This is the definition put forward in Perkins, lessness is required for battery than for man- A Rationale of Mens Rea, (1939) 52 Harv. L. Rev. slaughter. Com. v. Bergen, 134 Pa. Super. 62, 4 A. 905 at 910-1. There is also authority that an ac- 2d 164 (1939). Ordinarily there is no difference tor further intends those consequences which he between these two crimes in this respect. See knows are substantially certain to result from intra, note pp. 144, 153. his act if his act accomplishes the consequences 6 This question is discussed in Wechsler and which he desires, although it may be far from Michael, A Rationale of the Law of Homicide, certain that the act will in fact result in these (1937) 37 Col. L. Rev. 701, 1261 at 1274-76, and in consequences. Abrams v. United States, 250 U. a note, (1939) 27 Ky. L J. 229. Com. v. Pierce, 138 S. 616 (1919). Mr. Justice Holmes in his dissent Mass. 165 (I84) adopts an objective standard of did not maintain that such consequences were care, but a subjective standard still prevails in not intended, but rather that the statute under England. Andrews v. Director of Public Prose- which Abrams was prosecuted should not be cutions, [1937] A. C. 576. THE RECKLESS MOTORIST and borderline cases are not as fre- ful act, where there would have been quent as one might expect. liability for manslaughter had death ensued.' Relationship Between Manslaughter, The concept of recklessness as suf- Assault, and Battery. ficient for criminal liability for man- Recklessness as a ground of criminal slaughter appears fully developed in liability in personal injury crimes prob- Hul's Case in 1664.10 Hull was indicted ably did not appear until the late 16th for murder where he had thrown a or early 17th century. As has been piece of timber from a height of two pointed out by Professor Sayre,7 there stories, killing another workman. The may have been absolute liability for house stood 30 ft. from a highway or criminal homicide before the 12th cen- common passage, and Hull had cried tury. But such a harsh rule, if it ever "stand clear" before throwing the tim- existed, was relatively short-lived. ber. Two of the three judges agreed About that time its place was taken by that this was only misadventure, but a rule of the canon law brought into they put the case of a similar act done the common law by Bracton-the rule in the City of London with the house that an unintended killing in the course touching the street, which, they said of an unlawful act malum in se would would constitute manslaughter, due to constitute manslaughter." Liability un- the number of people passing by, "be- der this rule is not based upon reck- cause in common presumption his in- lessness, except where, as in some tention was to do mischief, when he modern cases, the phrase "a.um in casts or shoots anything which might se" is interpreted in terms of danger- kill among a multitude of people." ousness, and not, as was originally true, A few years earlier there had been in terms of morality. The illegal intent a somewhat similar decision in a mur- accompanying the unlawful act from der case, Rex v. Halloway," where which death occurred is regarded as Halloway had tied a boy to the tail sufficient to justify a conviction. As the of a horse and had beaten the boy, law later developed, a murder convic- causing the horse to run away with tion was possible if the unlawful act him. Upon these facts, the court held were a felony, and liability for a bat- that "it shall be said in law to be pre- tery may be imposed for an uninten- pensed malice, he doing it to one who ded injury resulting from an unlaw- made no resistance." In this case there

T Sayre, Mens Rea, (1932) 45 Harv. L. Rev. 974. State, 14 Ohio C. C. (N. S.) 368,33 Ohio Circ. Dec. 8 Bracton, De Legibus (1268) f. 120-121; see 63 (1911); Keuhn v. State, 37 Ohio App. 217, 174 Maitland, Bracton and Azo, Publications of the N. E. 606 (1930). In this respect battery follows Selden Society (VoL VIII, 1894) 232. the Ohio manslaughter rule of Johnson v. State, 9 This doctrine was apparently first stated to be 66 Ohio St. 59, 63 N. E. 607 (1902). No attempt has applicable in battery cases as early as 1873, in been made in this article completely to cover Com. v. Adams, 114 Mass. 323 (1873). It has been this type of criminal liability. extensively applied in automobile cases. In Ohio, 10 J.Kelyng 40, 84 Eng. Repr. 1072 (1664). There where battery is defined by Page Gen. Code is a full discussion of the history of this develop- (I939) §12423 and earlier statutes as "unlawfully ment in homicide cases in Davis, The Develop- striking or wounding another," liability without ment of Negligence as a Basis for Liability in intent Criminal Homicide Cases, (1938) 26 Ky. L, J. 209. to injure can be predicated only upon the Cro. commission of an unlawful act. Fishwick v. 11 Car. 131, 79 Eng. Repr. 715 (1628). LIVINGSTON HALL was certainly an intention to do some physical injury or offensive touching, injury to the boy, but it was the great the crime is invariably referred to as danger of death, although death was an "assault." It is usually held that pretty clearly not intended, which there can be no criminal liability un- caused the murder conviction. From less there was an intent to inflict bodily these cases stem the modern common injury or an offensive touching, and law rules that a killing due to gross recklessness is never enough for lia- carelessness or recklessness is man- bility.'" In some states, an intent to slaughter; 12 while if the evidence cause apprehension in the victim is "shows an abandoned and malignant enough for conviction, due to the in- heart on the part of the defendant," it, fluence of civil assault cases. 17 This is common law murder, although there general rule has been followed in auto- was no intention to kill or even to mobile cases, as in other cases, and no cause injury." These common law cases have been found in which crim- crimes based upon recklessness have inal liability was imposed for a reck- their statutory counterparts in many less assault, which did not cause either states which have abandoned the com- injury or offensive touching. 8 (With mon law definitions of manslaughter' the other possible additional require- or murder.15 ments for a criminal assault, apprehen- In tracing the adoption, in cases sion of the victim and present ability, where death did not result, of these we are, of course, not here concerned.) homicide tests of recklessness or wan- If there has been actual physical in- ton conduct, we must make a clear- jury or an offensive touching, courts cut distinction between assault and often use the terms "assault" and "bat- battery. If there has been no actual tery" interchangeably to apply to the

12 See Riesenfeld, Negligent Homicide, (1936) York Penal Law §1044, such a killing is murder 25 Calif. L. Rev. 1, and Robinson, Manslaughter in the first degree, and it has been held that the by Motorists, (1938) 22 Minn. L. Rev. 755. act must endanger a number of people. People IsMayes v. People, 106 IlM. 306 (1883). Less v. Ludkowitz, 266 N. Y. 233, 194 N. E. 688 (1935). 16 United States v. Hand, 2 Wash. C. C. 435 strong language is used in phrasing the test in Com. v. McLaughlin, 293 Pa. 218, 142 Atl. 213 (1810) is an early case which has never been (1928). questioned. See Tulin, (1928) 37 Yale L. J. 1048 at 1053. 14 Manslaughter is usually defined to include a 17 Thne cases are collected in a note, The Mis- killing by a gross or culpable negligence. In use of the Tort Definition of Assault in a Crim- Ohio, where it is limited to a "killing by an un- inal Action, (1939) 11 Rocky Mt. L. Rev. 104. The lawful act," gross negligence is not enough. note, however, fails to distinguish between com- Johnson v. State, 66 Ohio St. 59, 63 N. E. 607 mon law assault cases and cases decided under (1902). Contra, Minardo v. State, 204 Ind. 422, various statutory provisions, and its conclusions 183 N. E. 548 (1932), under a similar statute. as to the weight of authority at the common law Statutes are not uncommon which provide a are open to question on this ground. See also, lesser penalty for a killing by a motor vehicle State v. Desco, ... Vt ... , 1 A. (2d) 710 (1938). through a failure to use ordinary care. See Rie- Under statutes defining an assault as "an attempt senfeld, Negligent Homicide, (1936) 25 Calif. L. to commit a battery" it should not be possible Rev. 1. to convict where the defendant merely intended 15 Usually a killing committed "by an act im- to alarm the victim. McKay v. State, 44 Tex. 43 minently dangerous to others, and evincing a de- (1875). praved mind, regardless of human life, without is Of course, if there is an actual intention to a premediated design to effect death" constitutes cause injury or apprehension thereof, an assault the lowest degree of murder. Minn. Stat. (1927) without injury may be committed as well by an §10070 (third degree) and Wis. State. (1937) automobile as in any other way. Cf. Bryson v. §340.03 (second degree) are typical. But by New State, 20 S. W. (2d) 1047 (Tex. Cr. App. 1929). THE RECKLESS MOTORIST

crime,' 9 and the same is true in many but not intended to produce death, justi- statutes, since the punishment is usu- fies a serious penalty upon retributive ally the same.2 0 Speaking accurately, grounds. It has been said that this is such a crime is a "battery." also true under a deterrent theory of 21 The considerations which should gov- punishment. Obviously this same an- ern criminal liability for assault and for alogy applies to liability for battery battery are entirely different. An as- based upon the happening of physical sault is in the nature of an attempt to injury short of death due to reckless- inflict a battery, and for all such incom- ness or an unlawful act. Many cases plete crimes the specific intention to have noted this fact, or cited man- commit the crime which has been at- slaughter cases in support of a con- 2 2 tempted is of the essence of the at- viction for such a battery But the tempt. Until the coming of the auto- principle that the harmful result of such mobile it was not necessary to punish conduct may justify a punishment not those who merely created a risk of in- warranted by the conduct without any jury, and there has never been a com- harmful result, does not warrant the mon law crime of "negligence in the imposition of punishment for an assault air." The development of criminal lia- if no physical harm at all has been bility for "reckless driving" without caused by the conduct of the defen- injury, following the coming of the dant, and he did not intend to inflict automobile, has been exclusively sta- injury. tutory. Nevertheless, it is by analogy to cases The manslaughter analogy has no holding that there can be no assault possible application to support the de- without physical injury, unless there velopment of a common law assault or was an intention to inflict harm or at other crime based on recklessness, least to cause apprehension, and upon where there has been no injury. In one New Jersey case holding that reck- the involuntary manslaughter cases, the lessness with an automobile did consti- 2 serious consequence of death resulting tute an assault and battery, " that Pro- from an act which is reckless or illegal, fessor Tulin based his major premise:

19 In a few cases a distiction has been taken 22 Some of the more striking cases are Com. v. between these cimes, een where physical in- Hawkins, 157 Mass. 551, 32 N. E. 862 (1893); Tyner jury was proved. See infra,p. 149. v. United States, 2 Okla. Cr. 689, 103 Pac. 1057 20 Thus New York Penal Law §244 provides: (1909); Winkler v. State, 45 Okla. Cr. 32A 283 "A person who commits an assault or an assault Pac. 591 (1929); Luther v. State, 177 Ind. 619, 98 and battery * * * is guilty of assault in the N. E. 640 (1912); State v. Sudderth, 184 N. C. 753, third degree." Vernon's Texas Penal Code (1936) 114 S. E. 828 (1922); Brinhall v. State, 31 Ariz. art. 1144 provides: "The word 'battery' is used 522, 255 Pac. 165 (1927); State v. Agnew, 202 N. C. and in this Code in the same sense as 'assault 755, 164 S. E. 578 (1932). There are a very few battery'." But in California, where the punish- cases which deny the analogy. State v. Thomas, it ment for assault differs from that for battery, 1007 (1900) contains a state- separate, 65 N. J. L. 598, 48 AUt. becomes necessary to keep the terms not overruled in requires proof or ment to this effect which was and a conviction of assault J. L. 15, 93 Atl. 112 (1915). even though there has State v. Schutte, 87 N. presumption of intent, See also, Woodward v. State, 164 Miss. 468, 144 been a clear battery. People v. Vasquez, 85 Cal. infra, p. 149. So. 895 (1932). App. 575, 259 Pac. 1005 (1927). See 23 State v. Schutte, 87 N. J. L. 15, 93 At. 11Z of the 21 Wechsler and Michael, A Rationale Atl. 659 (1916). See infra, 1261 aff'd 88 N. J. L. 396, 96 Law of Homicide (1937) 37 CoL L. Rev. 701, p. 147. at 1294-98. LIVINGSTON HALL

Before the automobile battery cases exit." Lord Coleridge dealt with the were decided, there could be "no such case as on the same footing with the 24 thing as a 'negligent' battery." "malice" needed for murder, and Even if one were to limit his con- Stephen, J., thought that "if the pris- sideration of the subject to the English oner did these acts recklessly he did law, this statement would go beyond them wilfully," and the conviction was any decided English case. In the early affirmed. The counts for assault had 2 case of Rex v. Gill, 5 a man was in- been withdrawn from the jury, but dicted "for throwing down skins into Stephen, J., "had very great doubt a man's yard, which was a public way, whether they were not maintainable." per quod another man's eye was beat However this may be, it is commonly out." The evidence showed that the stated by modern writers upon the wind had taken the skin and blown it English law that there can be no com- away, and the defendant was acquitted. mon law criminal battery without 27 From the cases cited by the court, it "actual intention" to commit injury, appears clear that there was no neg- although no other criminal cases are ligence here at all. cited upon the question. In the later English case of Reg. v. The crime of battery in the United 2 Martin, 6 there is a statement that States has developed much farther, recklessness was enough for a convic- drawing from the manslaughter anal- tion under 24 and 25 Vict. c. 100, §20, ogy. The earliest extension was appar- punishing as a misdemeanant "Whoso- ently by a statute in Missouri enacted 28 ever shall unlawfully and maliciously in 1845 which made it a felony: wound or inflict any grievous bodily 'If any person shall be maimed, harm on another person." The jury wounded or disfigured, or receive great found that the defendant, who had put bodily harm, or his life be endangered, out the lights in a theatre at the close by the act, procurement, or culpable neg- ligence of another, in cases and under of the performance and fixed an iron circumstances which would constitute bar across the doorway, as a result of murder or manslaughter if death had which many persons had been crushed ensued." in the crowd, had done so "with the There do not seem to have been any intention of causing terror and alarm" American common law prosecutions for and "wilfully obstructing the means of reckless battery, or cases even discuss-

24 Tulin, (1928) 37 Yale L. J. 1048 at 1053. Cases 300, 117 N. E. 464 (1917). See note, (1938) 42 Dick. holding that there can be liability for a battery L. Rev. 86. where the defendant aims at one person and hits 25 1 Strange 190, 93 Eng. Repr. 466 (1719). another do not add anything one way or the 26 14 Cox C. C. 633 (1881). other, for it is well settled even in the few states which require an intent to inflict injury, that the 27 Russell, Crimes, (9th Eng. ed., 1936) 567-77; intent need not be directed toward the person Kenney, Outlines of Criminal Law, (14th Eng. actually hit, to constitute a common law battery. ed., 1933) 160-61. People ex rel. Starvis v. Rogers, 170 Misc. 609, 10 28 Act of March 27, 1845, art. 2, §38, now Mo. N. Y. S. 2d 722 (City Ct. New Rochelle 1939). Stat. (1932) §4016, carrying imprisonment up to 5 But an aggravated assault statute or indictment years. This statute was applied in State v. may require the intention to be directed against Groves, 194 Mo. 452, 92 S. W. 631 (1906), to a case the person actually wounded. Rex v. Holt, 7 of reckless shooting, and it has since been applied Car. & P. 518 (1836); People v. Stoyan, 280 Ill. to reckless motorists; see infra, note 119. THE RECKLESS MOTORIST ing the question, until 1855. In the next to charge the jury that he could not be decade three cases were decided which guilty unless he had acted "malo forecast the various lines of develop- animo." The conviction was affirmed, ment of the next half century. 29 It was the Massachusetts court holding the re- apparently not until the pistol became fusal of his requested charge to be a widely-owned weapon that prosecu- correct, and saying:3' tors had made any attempt to extend 'It is undoubtedly true that, in order the concept of battery to the man- to support an indictment for assault and is necessary to show that it studies have battery, it slaughter limits.30 Prior committed ex intentione, and that if s was touched only lightly upon the reck- the criminal intent is wanting, the of- less battery cases decided prior to the fence is not made out. But this intent from the unlawful act. first automobile battery case of this is always inferred The unreasonable and excessive use of type in 1912,31 but it seems necessary to force on the person of another being investigate these authorities with some proved, the wrongful intent is a neces- care if the factors which produced the sary and legitimate conclusion in all cases where the act was designedly com- automobile battery cases are to be dis- mitted. It then becomes an assault covered and evaluated. and battery, because purposely inflicted without justification or excuse." Pre-Automobile Cases on At first reading, the language seems Reckless Battery to bear upon our problem, for an act (a) Supporting a Requirement of ex intentione is expressly required. But Intent to Injure. all that the court held was that if there The first case found which in any was an intentional infliction of injury, way appears to advance this doctrine it was not necessary that the defend- is Commonwealth v. Randall,s a Massa- ant realize also that as a matter of chusetts case decided in 1855. Here law he was inflicting excessive force in the defendant, a school teacher, had order to have the requisite criminal been convicted of assault and battery intent for conviction. In other words, where he had, as the jury found, inflict- a mistake of law of this type is no ed "improper and excessive punish- defense to this crime. Bishop in 1865 ment" upon one of his scholars. Of cited the case in a footnote to a course, he had intended to inflict bodily guarded statement that for criminal injury or harm, but he asked the judge liability "it seems not to be always

29 Com. v. Randall, 4 Gray (Mass.) 36 (1855), See Warner, The Uniform Pistol Act, (1938) 29 infra, this page; State v. Sloanaker, 1 Houst. Jour. Crim. L. 529. (Del.) 62 (1858), infra, p. 142; State v. Myers, s1 Tulin, (1928) 37 Yale L. J. 1048 at 1060-62, 19 Ia. 517 (1865), infra, p. 143. discusses only the cases cited in State v. Schutte, 87 N. J. L. 15, 93 AUt. 112 (1915). so It will be noted that most of the. cases cited 32 This was Luther v. State, 177 Ind. 619, 98 in this article which imposed liability for a reck- N. E. 640 (1912). There is one earlier automobile less battery prior to 1900 involved the use of battery case, which was not based upon reckless- pistols, which are of course much more likely to ness but upon the commission of an unlawful be carelessly handled and to cause injury than act resulting in injury. Fishwick v. State, 14 rifles. In 1812 the first statute against carrying Ohio C. C. (N. S.) 368,33 Ohio C. D. 63 (1911). and by 1855 a concealed weapon was passed, 38 4 Gray (Mass.) 36 (1855). such statutes were in force in seven states. But 8 44 Gray (Mass.) 38-9. they did not become common until after 1911. LIVINGSTON HALL necessary that there should be a spe- statutes in common law terms. In cific intent to commit an assault, or a People v. Sullivan," the defendant had battery, or any other crime which in law choked a woman with his hands and includes an assault."" Nor was the case drew a butcher knife "as if to cut her cited at all when in 1893 the Massachu- throat but did not injure her otherwise setts court squarely held that a bat- than to choke her some." He was con- tery could be predicated upon "gross victed of assault in the second degree carelessness and negligence, or wan- under New York Penal Code §218 pun- 3 6 ton and reckless conduct. ishing one who "wilfully and wrong- Precisely similar to the Randall case fully assaults another by the use of a in facts, language, and ground of de- weapon or other instrument or thing cision, is the Indiana case of Vanvactor likely to produce grievous bodily v. State.3 7 The statement is again made harm." The trial judge had charged that "To support a charge of an as- the jury that the defendant was guilty sault and battery it is necessary to if he made an assault with the butcher show that the act complained of was knife, although he did not intend to do intentionally committed." (Italics in bodily harm with the knife. The con- original.) The court goes on to say that viction was reversed, the court saying: proof of excessive force will supply the "To constitute a criminal assault an needed intent. As the evidence did not intent to do bodily harm, or by violence 0 prove that excessive force was used, to insult, is requisite." It will be the conviction was reversed. And as noted, however, that there was here no happened to the Randall case, this battery with the deadly weapon, and Indiana dictum about intent was in the choking warranted a conviction substance overruled in 1889, to the ex- only of simple assault and battery. tent that it might require an intent to Similar statements are contained in inflict injury which could not be im- other cases involving assault without plied from recklessness, by a later injury,41 and in a case involving a bat- Indiana case, Mercer v. Corbin,3" in tery through rude conduct, in which it which the Vanvactor case was not even was held that taking a girl's arm in a cited. friendly way, without an intent to insult More to the point are later New her or to be rude, did not constitute York cases. Although only dicta, they a criminal battery." However weak as seem to have established a New York authority these decisions may be as to rule that there must be an intent to the possibility of a reckless battery, injure to constitute an "assault and the New York legislature in 1921 battery" as defined by the New York evidently felt it necessary to broaden

31 2 Bishop, Criminal Law (3rd ed., 1865) §76. 41 People v. Ryan, 55 Hun 214, 7 N. Y. Cr. 448 3GCom. v. Hawkins, 157 Mass. 551, 32 N. E. 862 (1st Dept. 1889); People v. Terrell, 58 Hun 602, 11 (1893). N. Y. S. 364 (5th Dept. 1890); cf. Hays v. People, 37113 Ind. 276, 15 N. E. 341 (1887). 1 Hill 351 (1841). 38 117 Ind. 450, 20 N. E. 132 (1889). 42 People v. Hale, 1 N. Y. Cr. 533 (3rd Dept. 39 4 N. Y. Cr. 193 (5th Dept. 1885). 1883); cf. Clayton v. Keeler, 18 Misc. 488, 42 N. 40 4 N. Y. Cr. 197. Y. S. 1051 (1896). THE RECKLESS MOTORIST

the definition of simple assault and cision in the Thomas case was in effect battery in New York Penal Law §244 overruled, although the court was un- to include the infliction of bodily in- willing to appear to do so, and used 47 jury by the operation of a vehicle in the language of presumed intent. 4 8 a culpably negligent manner. The express provisions of the Texas The last state to hold that there may statutes prevented the development of not be a common law conviction for a reckless battery in that state. Ver- assault and battery based on negligence non's Texas Penal Code (1936) art. appears to be New Jersey. In State v. 1138 has provided for more than 50 Thomas,44 defendant was indicted for years: manslaughter but convicted of assault "The use of any unlawful violence and battery. The Court of Errors and upon the person of another, with intent to injure him, whatever be the means or Appeals reversed the conviction, on the the degree of violence used, is an assault ground that a manslaughter indictment and battery." (Italics supplied.) did not necessarily charge an assault Of course the Texas Court of Appeals, and battery, since manslaughter could in the first case to come before it on be committed without an assault and this question,48 was forced to say: "To battery. After discussing State v. constitute an assault and battery there 4 O'Brien," in which a switch tender had must be an intent to injure." (Italics been convicted of manslaughter where in original.) The Texas law has always he negligently failed to perform his followed this case, and although the duty, the court in the Thomas case statute further provides that if bodily said: 48 injury is inflicted, the burden is then "Certainly if death had not ensued placed upon the defendant to prove from his negligence, but only personal injury, a charge of criminal assault and that there was no intent to inflict in- battery could not have been sustained." jury,49 yet if the evidence, even in an There is no evidence that the court automobile case, shows that the injury had investigated the law on the sub- was caused by negligence and without ject, and no cases were cited in support intent to injure, the conviction must be 0 of this statement. It is significant that reversed. By Texas Acts of 1917, c. in the next New Jersey case involving 207, the legislature broadened the defi- a reckless battery, a number of de- nition of battery to coincide with the cisions from other states holding that common law definition by making any there could be such a crime were called driver of a motor vehicle or motor- to the court's attention, and the de- cycle who "shall wilfully or with gross

47 State v. Schutte, 87 N. J. L. 15, 93 Atl. 112 43 238, amending Penal Law §244. Laws 1921, ch. (1915), aff'd 88 N. J. L. 396, 96 Atl. 659 (1916). "intent is necessary There is a recent dictum that 48 Rutherford v. State, 13 Tex. App. 92 (1882). People to constitute an assault" in other cases, in 49 Vernon's Texas Penal Code (1936) art. 1139. ex rel. Starvis v. Rogers, 170 Misc. 609, 610, 10 N. 50 Coffey v. State, 82 Tex. Cr. Rep. 481, 200 S. Y .S. 2d 722 (City Ct. New Rochelle 1939). W. 384 (1918), involving an aggravated battery 44 65 N. . L. 598, 48 Alt. 1007 (1900). under Branch's Penal Code (1916) §1022, provid- ing "An assault or battery becomes aggravated 45 3 Vroom 169 (1867). when cominitted * * * when a serious bodily 48 65 N. J. L. 600. injury is inflicted upon the person assaulted. LIVINGSTON HALL negligence collide with or cause injury if the pistol was discharged "uninten- to any other person" guilty of aggra- tionally and by accident merely, how- vated assault. As this section now ever imprudent, or improper, it may reads,5 no more than ordinary negli- have been," but that if the jury "were 52 gence appears to be required. satisfied by the proof that he discharged We see, therefore, that the doctrine it intentionally and wantonly or reck- that an intent to inflict injury was lessly into the crowd of persons as- necessary at the common law for a con- sembled about the place at the time, viction of assault and battery in 1912, or in the direction of the carriage of the when the- first automobile case of reck- prosecuting witness, indifferent as to less battery was decided, rested on two whom he might shoot, or what the mis- dicta, both of which had already been chief or injury might be, or where or overruled, and upon the New York and on whom it might fall, such conduct New Jersey cases, with a Texas sta- would manifest a wicked and depraved tute to provide a moral support. But inclination and disposition on his part, even in 1912 the weight of authority that it might well be presumed by them was clearly against this view, as the that he intended at the time to shoot next two sections show. some one, upon the principle that every one is presumed to intend the natural (b) Imputing an Intent to Injure from and probable consequence of his own Recklessness act," and that he might be convicted We start and end our discussion of of simple assault and battery upon such pre-automobile cases of this type with evidence. As to the assault with intent State v. Sloanaker.58 A Delaware nisi to kill Brown, the court charged that prius case decided in 1858, it appears this intent could not be made out by to be the first case recognizing that any such "inference or presumption.". there might be such a thing as a reck- The defendant was acquitted by the less battery. The evidence showed that jury, and drops out of the picture. the defendant had fired a pistol while However, this presumption of an in- on the platform of a railway car, and tent to injure from the intentional do- had hit another passenger, one Brown. ing of a reckless act was to reappear The defendant testified that the pistol in later automobile cases, chiefly in had been accidentally discharged, but states which had earlier dicta requiring the state claimed that he had recklessly an intent to inflict injury for battery. discharged it into the crowd of people This device made it easy to bring the on the train, and tried him for assault law of those states into line with the and battery with intent to kill Brown. weight of authority, without purport- The trial court charged the jury that ing to overrule the earlier cases. The defendant was not guilty of any crime language used here is identical with

51 Vernon's Texas Penal Code (1936) Arts. 52Young v. State, 120 Tex. Cr. Rep. 39, 47 S. W. 1149 (as amended in 1939), 1230 et seq. See infra, 2d 320 (1932). p. 152, for the present text of the statute. 53 1 Houst. (Del.) 62 (1858). THE RFCKLESS MOTORIST that used in Hul~s Case,5' the early of an assault with intent to murder negligent manslaughter case, to per- where the pistol ball hit the victim in form the same function of making the the thigh, even though, as the court ad- transition from intent to negligence. mitted, the defendant may not affirma- tively have intended to kill or even to (c) Basing a Battery Conviction on wound. A number of years later, in Recklessness. 1893, the same court stated that "there The fore-runner to this important are wanton or reckless states of mind group of cases is State v. Myers,5 de- which are sometimes the equivalent of cided in Iowa in 1865. The case itself a specific intention to kill" in Gallery v. is not adequately reported, but it ap- State, 8 and although the earlier case pears that the defendant was indicted was not cited, its influence must have and convicted for "assault with intent been felt to some extent. to inflict bodily injury" under Iowa The Georgia court later reversed a Code (1851) §2594. The conviction was conviction for the statutory offence of affirmed, the court approving an in- "shooting at another with a gun" un- struction summarized in the opinion as der Georgia Penal Code §115 in Wolfe follows: "Recklessly shooting into a v. State, 9 but there is a clear intima- crowd, and wounding some one not in- tion in the case that "criminal negli- tended, is criminal." One may suppose gence will supply the place of intent" that there was in fact an intent to in- for that crime, which is of course close- jure someone, although not the person ly analogous to a common law battery. actually wounded, but be that as it may, There is also the early Pennsylvania the language above quoted was of con- case of Smith v. Commonwealth," in siderable importance in the develop- which a conviction for assault and bat- ment of the law of battery. The case tery and for the aggravated assault of was cited in 1874 by Wharton, for the "unlawfully and maliciously inflicting proposition, new to that text, that upon another person, either with or "Recklessly shooting into a crowd is an without any weapon or instrument, any 56 assault." From here it passed into grievous bodily harm" was affirmed, in general currency, and was cited for this the face of a finding of the jury by spe- proposition in a number of later cases. cial verdict that the defendant had dis- Four years later the Georgia court charged his pistol and wounded some- held in Collier v. State7 that one who one in a train "with the intent to shoot shot a pistol at another, "intending, at into the floor, and not with the intent the time, to shoot at him, not caring to injure the prosecutor or any other whether he hit him or not," was guilty person." The Supreme Court held that

54 J. Kelyng 40, 84 Eng. Repr. 1072 (1664). See 58 92 Ga. 463, 17 S. E. 863 (1893). See the dis- supra, p. 135. cussion of the later Georgia aggravated assault 5 19 Iowa 517 (1865). cases, infra, p. 15. 213. a6 2 Wharton, CriminalLaw (7th Ed., 1874) 5 121 Ga. 587, 49 S. E. 688 (1905). 57 Collier v. State, 39 Ga. 31 (1869). This aston- 60100 Pa. 324 (1882), aff'd sub nom. Com. v. ishing decision was finally overruled in Wright v. State, 168 Ga. 690, 148 S. E. 731 (1929). Lister, 15 Phila. 405 (1882). LIVINGSTON HALL the act was "recklessly and wilfully sidewalk and hit the fugitive. But the done" and that from this "the law will court approved an acquittal of the ag- imply malice." Reg. v. Martin6 1 was the gravated crime of "assault with a only case cited by the court on the deadly weapon with intent to do bodily point, and the court declined to apply injury." The court cited and relied on the cases cited by the defendant hold- State v. Myers 5 as far as simple assault ing that an intent to injure was nec- and battery was concerned. essary for an assault without injury. The doctrine that gross carelessness The essential similarity between bat- "implying an indifference to conse- tery and manslaughter was the basis of quences" in handling a gun is enough the famous Massachusetts decision in for battery was expressly adopted by 62 Commonwealth v. Hawkins, in which the Supreme Court of Alabama in a conviction for assault and battery Medley v. State,6 even though the de- with a dangerous weapon was affirmed fendant had not intentionally dis- where the defendant had fired a pistol charged his rifle "at a place where it "in a grossly careless and negligent was likely some person would be hit." manner, or in a wanton and careless The Court of Appeals in the later case manner, and by so doing wounded 67 the 63 of McGee v. State, interpreting Mary A. Powers." The court said: earlier decision in the light of the rec- "In the case at bar, if Mary A. Powers ord which was available to it, said that had died from the pistol shot, the de- fendant, on the facts found by the jury, what was required was "that the de- would have been guilty of manslaughter. fendant designedly did an act calcu- As she survived the injury, the same lated to produce bodily harm to an- principle now requires a conviction of assault and battery. There has been other," and was unwilling to apply it much discussion in the cases in regard to a case where the defendant's shot- to the nature of the intent necessary to gun had been accidentally discharged, constitute this crime, but the better but even this constituted a recognition opinion is that nothing more is required than an intentional doing of an act that no intent to injure was needed for which, by reason of its wanton or a battery. The Court of Appeals was grossly negligent character, exposes an- thus going back to the presumed intent other to personal injury, and causes case.66 such an injury." doctrine of the Sloanaker The reckless and wilful discharge of The last of the decisions on this ques- a revolver at the ground while chasing tion before 1912 is Tyner v. United a boy, without intent to do bodily in- States.6 The defendant was convicted jury, was held sufficient in State v. in the Indian Territory for assault Surry, 64 a Washington case, to sustain with intent to kill, where he had fired a conviction for simple assault and bat- his pistol "recklessly or heedlessly tery where the bullet glanced from the * * * or while running his horse at

61 14 Cox C. C. 633 (1881), supra, p. 138. 66 156 Ala. 78, 47 So. 218 (1908). 62 157 Mass. 551, 32 N. E. 862 (1893). 67 4 Ala. App. 54, 58 So. 1008 (1912). 63157 Mass. 553. 64 23 Wash. 655, 63 Pac. 557 (1900). 66 1 Houst. (Del.) 62 (1858), supra, p. 142. 65 19 Iowa 517 (1865), supra, p. 143. 69 2 Okla. Cr. 689, 103 Pac. 1057 (1909). THE RECKLES MOTORIST an unusual rate of speed along the exercise of due care" as early as 1850.75 street" (the latter was a statutory mis- But in other states the same test for a demeanor), striking a boy walking civil trespass as for a criminal prosecu- nearby. The court affirmed the convic- tion was accepted where the declara- tion upon the ground that if death had tion alleged an assault and battery, and resulted, the defendant would have a recovery under such a declaration been guilty of manslaughter.70 The de- was denied where negligence alone was cision was undoubtedly correct as to proved. simple assault and battery, but is op- Typical of these latter jurisdictions posed to the weight of authority as far was Indiana, and the Supreme Court of as the proof of the intent to kill is con- that state, as early as 1889 in Mercer v. cerned.71 Corbin,78 held that a civil assault and It was against the background of all battery could be predicated upon in- these criminal cases that the first auto- jury arising out of "recklessness and mobile battery case based upon reck- wanton disregard of human life and lessness was decided in Indiana in safety" from which "malice and crim- 1912.72 But the large number of de- inal intent" might be inferred, although cisions recognizing liability for reck- there was "no actual or specific intent" lessness long before the automobile to commit an assault and battery. Civil became a problem is not yet wholly and criminal cases were cited indis- complete. For another source may also criminately, the criminal cases includ- be drawn upon-civil actions of tres- ing Commonwealth v. Lister" and pass for assault and battery provided State v. Myers,8 and the manslaughter an analogy which was not without its case of Flinni v. State.79 A verdict for effect upon the courts. Although there plaintiff was affirmed upon the ground may at one time have been absolute that the defendant had ridden his bi- civil liability for a trespass to the per- cycle down the footpath in violation of son, without intention or negligence, if a statute and in "wrongful and reckless the injury was direct,78 yet as early as disregard of the rights of others." 1616 the defence of inevitable accident was accepted, if "the defendant had Reckless Battery by Automobile committed no negligence to give occa- We are at last in a position to judge sion to the hurt.""' The negligence re- whether or not the Indiana court by quired to establish liability was fixed its decision in Lutherv. State"0 was cre- in some jurisdictions as "the want of ating a legal innovation in 1912 when

70 The court also stated that the same facts 78 Anonymous, Y. B. Edw. IV, 7 P1. 18 (1466). would make out an assault "with a deadly wea- 74 Weaver v. Hob. pon with intent to inflict on the person of another Ward, 134 (1616). a bodily injury" under Ind. Terr. Stat. (1899) 75 Brown v. Kendall, 6 Cush. (Mass.) 292 (1850). §909. See infra, p. 153. 78 U7 Ind. 450, 20 N. E. 132 (1889). 71 See the Illinois cases discussed infra, p. 152. 77 15 Phila. 405 (1882), supra, p. 134. Contra, Gallery V. State, 92 Ga. 463, 17 S. E. 863 78 19 Iowa 517 (1865), (1893); State v. Taylor, 70 Vt. 1,39 Atl.447 (189). supra, p. 143. 72Luther v. State, 177 Ind. 619, 98 N. R. 640 7 24 Ind. 286 (1865). (1912). 80 177 Ind. 619, 98 N. E. 640 (1912). LIVINGSTON HALL it predicated liability for a criminal touching of another. Inteni on the part battery on the reckless use of an auto- of the person charged, to apply the force constituting the battery, is, however, an mobile. Did it do so in order to make essential element of the offense and possible the imposition of a maximum must be shown to make the touching penalty of $1,000 fine and 6 months in criminally unlawful. 2 Greenleaf, Evi- 81 dence (16th ed.) §83; 5 Am. and Eng. the county jail for assault and battery, Ency. Law and Pr. 680; Underhill, Crim. when the maximum for the first offense Ev. (2d ed.) §354; Vanvactor v. State of reckless driving was a fine of $50?82 (1888), 113 Ind. 276, 280, 15 N. E. 341, 3 Am. St. 645; Perkins v. Stein & Co. Or was the court simply following out (1893), 94 Ky. 433, 22 S. W. 649, 20 L. R. the common law development which A. 861. had already taken place in Alabama, "But the intent may be inferred from Delaware, Georgia, Iowa, Massachu- circumstances which legitimately permit it. Intent to injure may not be implied setts, Oklahoma, Pennsylvania, Wash- from a lack of ordinary care. It may be ington, and (in a civil case) in Indiana from intentional acts, where the injury itself, following the manslaughter anal- was the direct result of them, done un- der circumstances showing a reckless ogy? disregard for the safety of others, and a The question for decision was wheth- willingness to inflict the injury or the er the evidence sustained a conviction commission of an unlawful act which leads directly and naturally to the in- for assault and battery under Burns jury. Underhill, Crim. Ev., supra; note Ind. Stat. (1908) §2242, providing to Johnson v. State, 66 Ohio St., 59, 63 "Whoever, in a rude, insolent or angry N. E. 607; Banks v. Braman (1905), 188 Mass. 367, 74 N. E. 594; State v. Camp- manner, unlawfully touches another, is bell, 82 Conn. 671, 74 Atl. 927; Mercer v. guilty of assault and battery." Defend- Corbin (1889), 117 Ind. 450, 20 N. E. ant's automobile, while passing a street 132, 3 L. R. A. 221, 10 Am. St. 76; Rey- Ind. car on the left hand side, had hit a bi- nolds v. Pierson (1902), 29 App. 273, 64 N. E. 484; Palmer v. Chicago, cyclist who was riding between him and etc. R. Co. (1887), 112 Ind. 250, 14 N.E. the street car and who had suddenly 70; Parker v. Pennsylvania Co. (1893), turned out in front of him. The court 134 Ind. 673, 34 N. E. 504, 23 L. R. A. 552; Fisher v. Louisville, etc. R. Co. reversed the conviction upon the (1897), 146 Ind. 558, 45 N. E. 689." ground that there was no evidence of The following of the manslaughter "a reckless disregard for the safety of analogy is clearly shown by the citation others indicating a willingness to inflict of State v. Campbell,84 a case of auto- injury" from which the jury might mobile manslaughter through gross properly draw "the inference that ap- negligence (although charged in the in- pellant intended to injure" the bicy- dictment both as an assault causing clist, but said in the course of its opin- death and as a killing by gross negli- ion: 83 gence). The court was also relying on "The evidence in this case establishes Mercer v. Corbin, 5 which, although a the collision, and the hurt of Wiesehan by the force of it, and is therefore a rude civil case, had cited several of the ear-

81 Burns Ind. Stat. (1908) §2242. 84 82 Conn. 671, 74 AtI. 927 (1909). 82 Burns Ind. Stat. (1908) §10465, 10476. 85 117 Ind. 450, 20 N. E. 132 (1889), supra, p. 145. 83 177 Ind. 625-26. THE RECKLESS MOTORIST

lier criminal reckless battery cases. It the defendant's acts constituted a bat- is hard to see how any other decision tery. The circumlocution and the talk could have been more in accord with of "imputed intent" was due to the the precedents, although, perhaps due court's natural (but not necessarily to the peculiar wording of the Indiana laudable) desire to avoid the appear- battery statute requiring a "rude" ance of overruling earlier dicta in each touching, it was necessary to couch the state. Both courts recognized that decision in terms of implied intent to American decisions in the previous half injure, as was done in the Sioanaker century had broadened the concept of case/a and for that matter, in Hull's battery, although indeed there appear Case. 87 to have been no decisions prior to 1850 Professor Tulin has criticized the denying liability for recklessness. New Jersey court which decided the Undoubtedly it is no mere coinci- 1916 case of State v. Schutte8 for citing dence that the automobile cases occur earlier non-automobile cases holding in states in which the penalty for as- that there could be a reckless assault sault and battery is greater than that and battery. The court decided that for reckless driving. But this is not intentionally driving a car "under cir- because this factor has or should have cumstances that rendered likely the in- influenced the courts. A court can only fliction of such an injury as that which decide the cases which are argued be- actually resulted from it" was equiva- fore it. Obviously, in a state in which lent to the "intention to inflict injury" the penalty for assault and battery is which is of the essence of criminal as- no greater than for reckless driving, sault. Professor Tulin says: "It is thus there is no point in prosecuting a de- seen that not a single one of the auth- fendant for assault and battery, and no orities cited has any resemblance to the prosecuting attorney will bring such a problem of determining whether the case in one of these states. The only penalty fixed by the legislature for inference to be drawn from Professor reckless driving should be increased by Tulin's imposing table of statutory pen- holding the defendant guilty of assault alties for reckless driving and simple and battery."'' assault and battery concerns the exer- But it is submitted that neither the cise of "The District Attorney's Op- New Jersey court in this case, nor the tion," and considerations of relative Indiana court in the Luther case, was penalties cannot be said to have moved determining, or should have deter- the courts in any of these battery cases. mined, any such problem. The proper Attempts to state the type of reckless pejalty for a criminal, act is a matter conduct which is sufficient for a crim- for the legislature under modern penal inal battery, and the terms in which the codes. The only question properly be- issue should be left to the jury, have fore either court was whether or not led to some confusion in automobile so 1 Houzt. (Del.) 62 (1858), supra, p. 142. 88 87 N. J. L. 15, 93 AL. 112 (1915), af'd 88 N. J. 87J. Kelyng 40, 84 Eng. Repr. 1072 (1664), L. 396, 96 At. 659 (1916). supr, p. 135. 89 Tulin, (1928) 37 Yale L. J. 1048 at 1063. LIVINGSTON HALL cases. On the whole, however, these bility is this: "The defendant's acts cases hang together more consistently must be so (wanton) or (reckless) as than do the cases of recklessness in to show a (reckless) or (utter) disre- other fields, for there are not many dif- gard for the safety of others.""' It is ferent types of reckless conduct possi- rarely safe for a trial court to leave the ble in connection with the use of auto- question to the jury in less comprehen- mobiles. sive terms. In a few states "reckless- There is no substantial difference in ness" accompanied by gross negli- gence92 or by an unlawful act" is all the conduct required for liability in that is required, but "recklessness states which use the language of "im- or carelessness" alone is not sufficient.9' puted intent," and in other states which It is well settled that negligence of a avoid this fiction. The intent is "im- character barely sufficient to support puted by law" from reckless conduct civil liability is not enough in any and the jury is not required to infer the state,9" unless a statute specifically pro- existence of an actual intent to do in- ° vides otherwise.9 6 jury. The fact that the battery results from The most usual definition of the con- an unlawful act is also of importance. duct and state of mind required for lia- If the unlawful act is malum in se,97 or 90 Brimhall v. State, 31 Ariz. 522, 255 Pac. 165 decisions, "wantonness or recklessness" was (1927); Com. v. Kalb, 129 Pa. Super, 241, 195 Atl. enough. Com. v. Gayton, 69 Pa. Super. 513 (1918). 428 (1938); Radley v. State, 197 Ind. 200, 150 N. E. Now a "reckless disregard of safety" must be 97 (1926); Woodward v. State, 164 Miss. 468, 144 proved. Com. v. Kalb, 129 Pa. Super. 241, 195 Atl. So. 895 (1932); People v. Hopper, 69 Colo. 124, 428 (1938). Of course, in any jurisdiction, if the 169 Pac. 152 (1917). In People v. Vasquez, 85 Cal. defendant is not even guilty of "reckless driv- App. 575, 259 Pac. 1005 (1927) the court holds the ing," he should not be convicted of assault and defendant to have "intended the natural and battery. State v. Rawlings, 191 N. C. 265, 131 S. probable consequence of his unlawful and reck- E. 632 (1929). less act." In the early Indiana cases, a "willing- 95 Ordinarily the language used by the trial ness to injure" would be imputed from reckless court is vastly different from that applicable to conduct. See quotation from Luther v. State, the torts cases. If the trial judge has used torts supra, p. 146. language in his charge, or if the evidence does 91 This definition, with some slight modifica- not sustain a finding of more than ordinary neg- tions in phraseology, is adopted in Brimhall v. ligence, the conviction should be reversed. Peo- State, 31 Ariz. 522, 255 Pac. 165 (1927); People v. ple v. Anderson, 310 Ill. 389, 141 N. E. 727 (1923); Hopper, 69 Colo. 124, 169 Pac. 152 (1917); Maloney Radley v. State, 197 Ind. 200, 150 N. E. 97 (1926); v. State, 57 Ga. App. 265, 195 S. E. 209 (1938); Woodward v. State, 164 Miss. 468, 144 So. 895 Radley v. State, 197 Ind. 200, 150 N. E. 97 (1926); (1932); State v. Albertalli, 112 Atl. 724 (N. J., Woodward v. State, 164 Miss. 468, 144 So. 895 1915); State v. Lancaster, 208 N. C. 349, 180 S. E. (1932); State v. Agnew, 202 N. C. 755, 164 S. E. 577 (1935). There is a statement by a dissenting 578 (1932); Com. v. Kalb, 129 Pa. Super. 241, 195 judge in State v. Sussewell, 149 S. C. 128, 146 S. E. Atl. 428 (1938); Davis v. Com., 150 Va. 611, 143 S.E. 697 (1929) to the effect that simple negligence 641 (1928). A similar result has been reached would be enough for a conviction of assault and under the Missouri and New York statutes re- battery, but the majority does not discuss the quiring "culpable negligence." State v. Sawyers, point, as the case involved an aggravated assault. 336 Mo. 644, 80 S.W. 2d 164 (1935) overruling State 98 The Texas statute originally required "gross v. Miller, 234 S.W. 813 (Mo. Sup. 1921); People v. negligence" but no more than ordinary neg- Waxman, 232 App. Div. 90, 249 N. Y. S. 180 (1st ligence appears to be now required. See supra, Dept. 1931). p. 142. 92 State v. Hamburg, 4 W. W. Har. (34 Del.) 62, 97 King v. State, 157 Tenn. 635, 11 S. W. 2d 904 143 Atl. 47 (1928), a nisi prius case; Com. v. (1928). In the states which make this distinction, Temple, 239 Ky. 188, 39 S. W. 2d 228 (1931). an unlawful act merely malum prohibitum is of 93 Pierce v. Com., 214 Ky. 454, 283 S. W. 418 course not qnough. State v. Rawlings, 191 N. C. (1926); cf. State v. Richardson, 179 Iowa 770, 162 265, 131 S. E. 632 (1929). The nature of this dis- N. W. 28 (1917). tinction is far from clear, and it has come in for 94 State v. Lancaster, 208 N. C. 349, 180 S. E. a great deal of criticism. See note, (1930) 30 Col. 577 (1935). Under the earlier Pennsylvania L. Rev. 74. But so long as it is administered in THE RECKLESS MOTORIST a proximate cause of the battery,9 or or if a "reasonably careful person doing accompanied by negligence,9 it has the same act would have been guilty of been held in a few states to be a suffi- a conscious disregard of life."' 0' It cient basis for liability, and in Ohio seems clear that intoxication does not any unlawful act resulting in injury is excuse but rather aggravates the type enough. 100 In any event, the commis- of recklessness required for liability."'0 5 sion of an unlawful act is usually re- One troublesome procedural problem garded as some evidence of negligence, remains. If the defendant has been in- to be considered with all the other cir- dicted for some kind of aggravated as- cumstances by the jury in determining sault, and the indictment does not in- whether or not the requisite degree of clude.an express charge of battery, the 10 1 recklessness is found. jury may bring in a verdict of "guilty Whether or not the defendant was of simple assault." A few courts hold actually aware of the risk which his that the aggravated assault charge does reckless conduct was creating is rarely not include a battery and that the ver- an issue in these cases. Most sober men dict must be supported as a verdict for will not drive in a reckless manner an assault or not at all. ° 6 Under these without being conscious of the risk they circumstances, a conviction for assault are creating.10 2 What few intimations has been affirmed where the undis- there are seem to say that it is not puted evidence showed that physical necessary for the defendant to have injury had, resulted, and the intent re- known of the dangerous tendency of quired for the assault has been imputed his acts, if he "ought to have known"'10 from recklessness, as in the case of a

terms of dangerousness of the act, which seems her. In Tift v. State, 17 Ga. App. 663, 88 S. E. 41 to be the modem tendency, it may serve a useful (1916), the defendant was convicted where he purpose. had suffered an attack of vertigo while driving 98 State v. Agnew, 202 N. C. 755, 164 S. E. 578 his automobile, but the jury found, under the (1932). court's charge, that he knew he was subject to O9People v. Saroff, 227 App. Div. 114, 237 N. Y. frequent attacks of this character. S. 73 (2d Dept. 1929), under a statute requiring . 03 Radley v. State, 197 Ind. 200, 150 N. E. 97 "culpable negligence." In some states there (1926). must also be proof of recklessness, and the com- 101 State v. Sawyers, 336 Mo. 644, 80 S.W. 2d 164 mission of the unlawful act does not seem to add (1935), under a statute requiring "culpable neg- much to the case. Brinhall v. State, 31 Ariz. 522, ligence." 255 Pac. 165 (1927); Davis v. Com., 150 Va. 611, 105 Brimhall v. State, 31 Ariz. 522, 255 Pac. 165 143 S. E. 641 (1928). (1927); Mundy v. State, 59 Ga. App. 509, 1 S. E. 100 Keuhn v. State, 37 Ohio App. 217, 174 N. E. 2d 605 (1939); Chambliss v. State, 37 Ga. App. 606 (1930); Fishwick v. State, 14 Ohio C. C. (N. 124, 139 S. E. 80 (1927); Com. v. Gayton, 69 Pa. S.) 368, 33 Ohio C. D. 63 (1911). Super. 513 (1918); Davis v. Coin. 150 Va. 611, 143 101 Singer v. State, 194 Ind. 397, 142 N. E. 864 S. E. 641 (1928). If driving while intoxicated is (1924); State v. Schutte, 88 N. J. L. 396, 96 AtI. regarded as a crime nalum in se, a conviction 659 (1916); Com. v. Gayton, 69 Pa. Super. 513 may be warranted on this, without proof of reck- (1918). lessness. King v. State, 157 Tenn.635, 11 S. W. 2d 102 In Woodward v. State, 164 Miss. 468, 144 So. 904 (1928). Prior to the automobile cases it had 895 (1932) the defendant had carelessly started also been held that intoxication was no defense his automobile and ran into a woman standing to simple assault and battery. Whitten v. State, just in front of him. He claimed that he did not 115 Ala. 72, 22 So. 483 (1896). see her standing there and the trial court charged 1(0 People v. Hopper, 69 Colo. 124, 169 Pac. 152 the jury that he was guilty if he could have seen (1917); People v. Vasquez, 85 Cal. App. 575, 259 her "by reasonable diligence." The conviction Pac. 1005 (1927) (by implication). Contra: State was affirmed, but the upper court did not pass on v. Sudderth, 184 N. C. 753, 114 S. E. 828 (1922); the correctness of this instruction, since the evi- Maloney v. State, 57 Ga. App. 265, 195 S. E. 209 dence clearly indicated that he had in fact seen (1938) (by implication). LIVINGSTON HALL

battery. 10' The same result has been them the intent was "imputed" from reached where the defendant was in- recklessness, 1' and in the other, in dicted for "assault and battery" and the which recklessness did not clearly ap- jury has convicted him of "simple as- pear, the existence of an assault was sault" only, although the undisputed doubted. 112 In the remaining automo- evidence showed the commission of a bile cases in which a conviction for ag- battery. 0 8 These decisions represent an gravated assault has been upheld, the extreme instance of the policy of the court has not discussed the matter. law of upholding convictions for a les- There should be no question about lia- ser crime than that proved by the evi- bility, for the main considerations of dence where the defendant has, through policy leading to a conviction for an ag- the technicalities of pleading or by a gravated "assault" apply even more compromise verdict, been let off more strongly where there has been an ac- lightly than he deserved."0 9 tual battery, although without the com- mission of a technical "assault." Aggravated Assault by Automobile Whether personal injury crimes be As their name implies, the aggra- punished primarily on the retributive vated assault cases usually arise under or the deterrent theory, there are at statutes phrased in terms of "assault" least three possible aggravating fac- plus various accompanying circum- tors in punishing an act causing injury stances which justify the increased or death: (1) The amount of injury penalty." 0 Yet in every one of the auto- actually caused; (2) the amount of in- mobile cases there has been actual jury risked; and (3) the amount of in- physical injury, amounting to an ad- jury intended." 3 In the law of homi- mitted battery. Should the court per- cide, which developed early at the com- mit the battery to take the place of the mon law, and which has been the sub- required assault, if there has been no ject of much legislation in America, actual intent to injure or alarm, as is these factors are nicely taken care of. required for an assault without physi- The common law of England never de- cal injury? In two cases the court felt veloped a felonious assault or battery that all the requirements of a technical (with the exception of mayhem, which "assault" had to be met, but in one of ceased to be a felony in early times) 14

107 People v. Vasquez and People v. Hopper, pressly creating an aggravated "assault" based supra, n. 106. upon the negligent driving of a motor vehicle 108 Com. v. Bergdoll, 55 Pa. Super. 186 (1913). or a motorcycle which collides with or causes in- 109 See (1935) 49 Harv. L. Rev. 340. As an as- jury to another. See infra, p. 152. sault is usually defined, both at common law I Brimhall v. State, 31 Ariz. 522, 255 Pac. 165 and under codes, as an "attempted battery," the (1927). See infra, p. 151. most that has been done is to permit indictment 112 People v. Smith, 217 Mich. 669, 187 N. W. and conviction for the attempt, where the evi- 304 (1922). dence showed the commission of the completed crime. This is expressly permitted in a number 1s See L. Hall, Reduction of Criminal Sen- of states by statute. Cal. Penal Code §663; Idaho tences on Appeal, (1937) 37 Col. L. Rev. 521 at Code (1932) §17-305; Nev. Comp. L. (1929) 537-38; Wechsler and Michael, A Rationale of the §9975 (2); N. Y. Penal Code §260; N. Dak. Comp. Law of Homicide, (1937) 37 Col. L. Rev. 701, 1261 L. (1913) §10337; Utah R. S. (1933) §103-1-29. at 1264-77. 110 This is true even in the Texas statute ex- 114 Corn. v. Newell, 7 Mass. 245 (1810). THE RECKLESS MOTORIST and the common law penalty of unlim- same recklessness which will support a ited imprisonment, at the discretion of conviction for assault and battery if the court, for a misdemeanor, did not slight harm is done, will support the require statutory intervention unless a three year penalty under the statute if capital punishment or transportation "grievous bodily harm" has resulted.1 6 was desired as the penalty. Although there is no Atatutory defini- But in America, a relatively low tion of an "assault of a high and aggra- maximum punishment for misdemean- vated nature" in South Carolina, the ors, and particularly for simple assault infliction of serious bodily harm was and batterS, was set by the legislature enough to justify a conviction before in most states. Doubtless this was one the automobile came upon the scene"' step in the deflation of the judge's and in an automobile case such harm power which followed the Revolution. recklessly inflicted is also sufficient."8 Hence, aggravated assaults were cre- A similar result is reached under the ated by the legislature with more seri- Missouri statute on felonious wound- ous punishments, and some or all of ing, requiring "culpable negligence" these factors of aggravation were util- from which the victim "be maimed, ized as the basis of classification. To wounded, or disfigured, or receive great what extent may they properly be ap- bodily harm or his life be endanger- plied to injuries caused by the reckless ed."1'19 driving of an automobile? (b) Aggravated Assault Based Upon (a) Aggravated Assault Based on the Use of a Deadly or Dangerous Infliction of Serious Injury Weapon. It is clear that such a crime requires By similar reasoning, if there has no intent to injure for conviction. For been sufficient recklessness to consti- instaince, the Arizona statute provides tute a battery, and the defendant has a more serious penalty for an assault been reckless with a deadly or danger- "when a serious injury is inflicted," ous weapon, causing actual injury, all and a reckless disregard for the safety the elements of this type of aggravated of others is enough, if such injury is assault are present. There was at least caused thereby. 1 5 Likewise the Penn- one decision to this effect before the 20 sylvania statute requires only that the automobile cases were decided. defendant "unlawfully and maliciously. Whether or not an automobile is a inflict grievous bodily harm," and the deadly weapon is at least a jury ques- 115 Brimhall v. State, 31 Ariz. 522, 255 Pac. 165 118 State v. Sussewell, 149 S. C. 128, 146 S. E. (1927). 697 (1929). 119 Supra, p. 138. It was applied to automobile 11 The decision to this effect in Smith v. Com., drivers in State v. Miller, 234 S. W. 813 (Mo. 100 Pa. 324 (1882), where a pistor was used, has Sup. 1921) and State v. Sawyers, 336 Mo. 644, 80 been followed in the later automobile cases. S. W. 2d 164 (1935). In the latter case the convic- Corn. v. Coccodralli, 74 Pa. Super. 324 (1920); tion was reversed for an error in the trial court's instruction as to degree of negligence required. Com. v. Donnelly, 113 Pa. Super. 173, 172 AtI. 190 12 COm. v. Hawkins, 157 Mass. 551, 32 N. E. 862 (1934); Com. v. Kalb, 129 Pa. Super. 241, 195 At. (1893). In People v. Sullivan, 4 N. Y. Cr. 193 (5th 428 (1938). Dept. 1885), supra, p. 140, there was no actual 217 State v. McKetterick, 14 S. C. 346 (1880). battery committed with the deadly weapon. LIVINGSTON HALL tion,"1' and if it is found to be such, a vehicle or motorcycle [who] shall wil- conviction is justified if there was an fully or with negligence, as is defined in ' the Penal Code of this State in the title intent to inflict injury, or extreme and chapter on negligent homicide, col- recklessness,' or the unlawful and lide with or cause injury less than death reckless operation of the automobile, as to any other person." 24 in State v. Sudderth.' In a few states the statute creating The Sudderth case has been cited as this type of aggravated assault based a conviction for "assault with a deadly primarily upon the use of a deadly or weapon with intent to kill" under N. dangerous weapon has also specifically Ca. Cons. St. 1919 §4214,125 but the re- required "an intent to inflict bodily port of the case mentions only "assault harm." The ordinary interpretation of with a deadly weapon," and the con- such a statute would eliminate any viction was unquestionably for this, as conviction based solely upon reckless- 27 §4215 provides: ness, and Colorado has so held . "In all cases of an assault, with or But Professor Tulin has pointed out without intent to kill or injure, the per- a contrary result in llinois, 128 which he son convicted shall be punished by fine or imprisonment or both, at the discre- explained upon the ground that the tion of the court: Provided, that where maximum penalty for both reckless no deadly weapon has been used and no driving and simple assault and battery serious damage done, the punishment in assaults, assaults and batteries, and af- was a fine of $100, whereas this aggra- frays, shall not exceed a fine of fifty dol- vated assault carried a maximum fine lars or imprisonment for thirty days; of $1,000 or imprisonment for 1 year or both. The court, he felt, was willing to It should be noted further that there stretch the law to convict for the ag- may be a conviction of assault under gravated assault where the penalty for §4215 "without intent to injure," by the simple assault and battery was no express language of the statute. 29 greater than that for reckless driving.1 Analytically, the Texas aggravated The Illinois statute10 under which assault statute is of this type. No cir- the prosecution was brought punished cumstance of aggravation is required any: by the statute except the use of a dan- "Assault with a deadly weapon, in- gerous instrumentality, the statute now strument, or other thing, with an intent punishing: 2 to inflict upon the person of another "Any driver or operator of a motor bodily injury, where no considerable 121 Williamson v. State, 92 Fla. 980, 111 So. 124, to see whether or not the latter had done so. 53 A. L. R. 250 (1926); State v. Stringer, 140 Ore. 124 184 N. C. 753, 114 S. E. 828 (1922). 452, 13 P. 2d 340 (1932). 1225Tulin, (1928) 37 Yale L. J. 1048 at 1068. 122 State v. Stringer, supra, n. 121. No facts 126 Vernon's Texas Penal Code (1936) Art. 1149 are given in Williamson v. State, supra, n. 121, (as amended in 1939). The punishment is a fine from which one may judge whether the convic- of $25 to $1,000 or imprisonment from 1 month to tion for assault with a dangerous weapon with- 2 years, or both. out intent to kill was affirmed on the basis of 227 People v. Hopper, 69 Colo. 124, 169 Pac. 152 recklessness or on the basis of an intentional (1917). assault. 128 People v. Benson, 321 IMI. 605, 152 N. E. 514 123 In People v. Goolsby, 284 Mich. 375, 279 N. W. (1926). 867 (1938) the defendant had been stopped by a 129 Tulin, (1928) 37 Yale L. J. 1048 at 1068. policeman. He told the policeman to get out of 120 Criminal Code §25; Jones Ill. Stat (1936) his way and then started driving without looking §37.039. THE RECKLESS MOTORIST

provocation appears or where the cir- Tulin's article, one other state has cumstances of the assault show an aban- reached a similar result. The Oklahoma doned and malignant heart." statute 5 provides up to 5 years' im- Another statute provided a penalty of prisonment for" imprisonment from 1 to 14 years for "Every person, who, with intent to do "an assault with an intent to commit bodily harm, and without justifiable or murder," including an "attempt to com- excusable cause, commits an assault 13 mit murder by any means.1 1 These upon the person of another with any sharp or dangerous weapon * * * al- statutes originated together as the first though without intent to kill such per- and second parts, respectively, of §52, son or to commit any felony." c. 30, of the Illinois Revised Statutes of We have already seen that in 1909, in 1845. When the automobile cases under a case of reckless shooting, the court the first-quoted part of this section in the Indian Territory (which was came up for decision in the Appellate later organized as the state of Okla- Court of Illinois, there were earlier homa) had affirmed a conviction for cases involving reckless use of pistols an assault with intent to kill or for an in the Supreme Court holding that the assault "with a deadly weapon with in- intent to murder under the second part tent to inflict on the person of another of the section might be made out from a bodily injury" under the Indian Ter- "an act committed deliberately and ritory statutes,36 upon proof that the likely to be attended with dangerous defendant would have been guilty of 3 2 consequences."' It was therefore an murder or manslaughter if the victim a fortiori case to convict of the lesser had died. 37 This same line of reason- offence and to find an "intent to inflict ing was carried forward in 1929 by the injury" from the reckless use of an Oklahoma court in Winkler v. State.3 8 automobile.133 In a later automobile The commission of the misdemeanor of case in the Supreme Court, the statute speeding was held to supply the "in- was construed as requiring a conviction tent to do bodily harm" required by the if the crime would have constituted present Oklahoma statute, and proof of manslaughter from recklessness, had culpable negligence made out the as- 3 4 the victim died.1 sault. Only manslaughter cases were Since the publication of Professor cited, and the use of the words "justi-

131 Criminal Code §§23, 24; Jones Ill. Stat. '35 Okla. Comp. Stat. (1921) §1764, now 21 Okla. (1936) §37.037 and 37.038. Stat. (1937) §652. 132 Perry v. People, 14 I1.496 (1853); Dunaway 26 Indian Terr. Stat. (1899) §909. (1884). The same test has v. People, 110 Ill. 333 37 Tyner v. United States, 2 Okla. Cr. 689, 103 cases. Peo- been used in recent non-automobile Pac. 1057 (1909), supra, p. 144. ple v. Wilson, 342 Ill.358, 174 N. E. 398 (1931); People v. Merritt, 367 Ill.521, 12 N. E. 2d 7 (1937). 138 45 Okla. Cr. 322, 283 Pac. 591 (1929). At the '33 People v. Clink, 216 Ill.App. 357 (1920). time of this decision the penalty for assault and 234 People v. Anderson, 310 IM. 389, 141 N. E. battery under Okla. Stat. (1921) §1763 was im- 727 (1923). The later decision in People v. Ben- prisonment up to 30 days or fine of $5 to $100 or son, 321 Ill. 605, 152 N. E. 514 (1926) which Profes- both, and the penalty for speeding under Okla. sor Tulin relied upon, cited no cases, but evi- Laws (1923) c. 16 §2 was imprisonment from 10 dently followed the Anderson case, which had to 30 days or fine from $25 to $100 or both for the been decided three years before. The Benson first offence, and imprisonment from 30 days to case was recently cited in Rosenberg v. Ott, 285 6 months or fine from $100 to $1000 or both for Ill. App. 50, 1 N. E. 2d 502 (1936). the second offence. LIVINGSTON HALL fiable or excusable cause" in the assault tion at the common law, and of course statute, evidently referring to the sta- negligence sufficient only for man- tutory homicide test, 39 makes this slaughter should not suffice. 43 But 14 analogy not unreasonable. there is no requirement of an intent to Neither the Illinois nor the Oklahoma cause injury, if injury has in fact re- decisions appear fully to support the sulted. thesis that the automobile convictions (d) Assault with Intent to Inflict a resulted from the fact that the reckless Great Bodily Injury driving and assault and battery penal- If the only aggravating feature is this ties were the same. In both states prior type of intent, clearly there is no basis decisions had forecast the result before for holding a defendant for reckless- the automobile had become a factor in ness, and the few automobile cases in the situation. Once it was found that which a District Attorney has managed there was a battery aggravated by the to secure a conviction of this type, have use of a dangerous or deadly weapon, been reversed.1' Professor Tulin com- an automobile, the cases arguably came ments on an Iowa case as follows: within the spirit, if not the letter, of "This means that the court regarded the statute. the penalty for reckless driving (maxi- (c) Assault with a Depraved Mind mum fine of $100 or imprisonment not In Wisconsin there is a statute 4 ' iM- exceeding 30 days) as sufficient."'14 posing a sentence of 1 to 8 years for May it not mean that no earlier Iowa assaulting another: precedents involving non-automobile "In a manner evincing a depraved cases which would uphold a conviction 14 mind, regardless of human life, without were called to the court's attention, any premeditated design to effect the death of the person assaulted, and under and that the court was unwilling to such circumstances that if death had re- depart from its concept of "intent," sulted, the assailant would have been whatever the consequences may have guilty of murder in the second degree." been? The court has held that "culpable gross negligence" is not enough for convic- (e) Assault with Intent to Murder tion under this statute, although it Apart from the Georgia cases, there would warrant a simple assault convic- have been few indictments for assault tion.1 2 The aggravating feature is the with intent to murder by the use of an extreme type of recklessness which automobile which have come before ap- would have justified a murder convic- pellate courts. Most of the defendants 139 Okla. Comp. Stat. (1921) §1752, now 21 Okla. 143 See supra, p. 136. Stat. (1937) §731. 14 State v. Richardson, 179 Iowa 770, 162 N. W. 140 In Lane v. State, ... Okla. Cr...., 84 P. 2d 28 (1917) People v. Smith, 217 Mich. 669, 187 N. W. 807 (1938), the homicide analogy was drawn upon 304 (1922). in a case involving the accidental discharge of a 145 Tulin, (1928) 37 Yale I J. 1048 at 1068-69. gun, and a conviction of the aggravated assault 146 In State v. Richardson, 179 Iowa 770, 162 was affrmed. N. W. 28 (1917), supra, n. 144, the only Iowa au- thority which might in any way have justified 141 Wis. Stat. (1921) §4374a. the conviction was State v. Myers, 19 Iowa 517 142 Njecick v. State, 178 Wis. 94, 189 N. W. 147 (1865), and this case was probably not cited by (1922). counsel, for it was not mentioned in the decision. THE RECKLESS MOTORIST have been acquitted of this offense by battery which leads to a conviction for the jury,147 but in Shorter v. State,'" an aggravated assault, one would ex- there was a conviction which was re- pect Georgia to be the last state to con- versed on appeal. The court treated the vict of aggravated assault, not one of case like a murder case, and the con- the earliest, as it was in fact. viction, based solely on the commission The first automobile conviction under of the misdemeanor of exceeding the this Georgia statute was in 1914 in speed limit, of course could not stand Dennard v. State. 52 The defendant, without proof of an intent even to in- driving a car in good condition, unac- jure. countably hit a pedestrian who was But the Georgia cases present a dif- walking some distance off the travelled ferent story. There are three cases in portion of the road. The verdict of which reckless use of an automobile guilty was held warranted by the evi- has been held to be "an assault with dence, the Court of Appeals saying: 153 intent to murder by using any weapon likely to produce death" under Penal "The presumption of malice may arise from a reckless disregard of human life; Code §97, carrying 2 to 10 years' im- and 'there are wanton or reckless states prisonment. It is a fact that the penal- of mind which are sometimes the ties in Georgia for reckless driving and equivalent of a specific intent to kill, and which may and should be treated for simple assault and battery are the by the jury as amounting to such inten- same.1 49 Both are misdemeanors, and tion when productive of violence likely the maximum penalty for a misdemean- to result* in the destruction of life, though not so resulting in the given in- or is a year with the chain gang or 6 stance.' Gallery v. State, 92 Ga. 464, 17 months in jail or a fine of $1,000, or all S. E. 863. And see Collier v. State, 39 Ga. three. 10 But this would hardly seem 31, 34." to call for any distortion of the law in The Gallery case, decided by the order to inflict an even more serious Georgia Supreme Court in 1893, had penalty upon a reckless driver, no mat- held there was no presumption of in- ter how much damage he has caused. tent to murder from the use of a deadly Indeed, this maximum penalty for sim- weapon, if death did not result, but had ple assault and battery in Georgia is added the words quoted above, which greater than that for the same crime in were the basis of this decision twenty any other state listed in Professor Tu- years later. 4 The Collier case, decided lin's table.' If it is the low penalty in 1869, had gone much further, and for reckless driving and assault and was not overruled until 1929.155 147 Williamson v. State, 92 Fla. 980, 111 So. 124, 148 147 Tenn. 355, 247 S. W. 985 (1923). 53 A. L. R. 250 (192); State v. Sussewell, 149 S. C. 149 Georgia Code (1933) §26-1408 makes battery 128, 146 S. E. 697 (1929); Davis v. Corn., 150 Va. a misdemeanor, and §§68-301, 68-307 and 68-9908 611, 143 S. E. 641 (1928). But Duhon v. State, 136 make driving at an excessive speed and driving Tex. Crim. 404, 125 S. W. 2d 550 (1939), was a while intoxicated punishable as misdemeanors. conviction which was affirmed on appeal. The 150 Georgia Penal Code §1065, Code (1933) §27- state's evidence was that the defendant had in- 2506. tentionally run over the victim when she had 151 Tulin, (1928) 37 Yale L. J. 1048 at 1064-65. refused to accede to his immoral demands, and 15214 Ga. App. 485, 81 S. E. 378 (1914). from such conduct it was proper for the jury 1ss 14 Ga. App. 488. to find the specific intent to kill required by 154 Supra, p. 143. the statute. 155 See supra, n. 57. LIVINGSTON HALL

There were no other Georgia deci- clear that the defendants had inten- sions on this point until 1927, when tionally run down their victims in auto- three cases were decided in the same mobiles,51 9 but no more convictions for division of the Court of Appeals and by a reckless "assault with intent to mur- the same three judges, within two der" were affirmed in Georgia for seven weeks of each other, which took both years. Broyles, J., carried his col- sides of the question. In Chambliss v. leagues with him in following the State'56 the court, in an opinion by Springer case in the next three deci- Luke, J., followed the Dennard case, sions. 6 ' But when the other two judges and affirmed an aggravated assault con- resigned, the new majority of the court viction based upon reckless and unlaw- in 1934 overruled these cases, going ful driving. On the same day Broyles, back to the language of the Supreme J., wrote the opinion of the same court Court in the Gallery case in 1893, to in Andrews v. State,157 in which the de- uphold a conviction for a reckless as- fendant had operated a car with a sault with intent to kill, leaving Broy- smoke screen device which emitted les, J., to dissent. 6' The most recent deadly carbon monoxide and had case is to the same effect, although a caused a pursuing officer to run into higher degree of recklessness is re- the bank of the road. The court re- quired for the aggravated assault than versed the conviction upon the ground the criminal negligence which is all that there was no proof that the de- that is needed for simple assault and fendant knew of the poisonous gas he battery. 6 2 The problem is one which was emitting, whereas "the specific in- should be brought to the attention of tent to kill is a necessary ingredient the Supreme Court of Georgia. of the offense." Twelve days later The drafting of an indictment for a Broyles, J., wrote another opinion in Georgia aggravated assault by reckless Springer v. State"1 8 in which the court use of an automobile has given rise to categorically held that an intentional some problems. As we have seen, Penal assault and battery was needed for Code §97 punishes "an assault with in- conviction of the aggravated assault, tent to murder by using any weapon and reversed a conviction based on likely to produce death." It has been reckless driving. held that no words in the indictment Then came two cases in which it was which do not charge an "intent to mur-

156 37 Ga. App. 124, 139 S. E. 80 (July 14, 1927). 162 Mundy v. State, 59 Ga. App. 509, 1 S.E. 2d 157 37 Ga. App. 95, 138 S. E. 923 (July 14, 1927). 605 (1939). This case is further remarkable in that it held extreme intoxication rendering the 118 37 Ga. App. 154, 139 S. E. 159 (July 26, 1927). defendant unable to manage his car would justify 119 Goldin v. State, 38 Ga. App. 110, 142 S. E. a conviction of assault with intent to murder, 757 (1928); Sudan v. State, 41 Ga. App. 828, 155 contrary to the general rule that intoxication S. E. 102 (1930). may be a defence if it is so complete as to nega- 160 Smith v. State, 39 Ga. App. 552, 147 S. E. 781 tive the specific intent required. People v. Gil- day, 351111. 11, 183 N. E. 573 (1932). But of course (1929); Neese v. State, 40 Ga. App. 503, 150 S. E. once the major premise of the Georgia decisions 451 (1929); Gresham v. State, 46 Ga. App. 54, 166 is adopted, that no intent to murder need be S. E. 443 (1933). proved, the intoxication unquestionably does 161 Easley v. State, 49 Ga. App. 275, 175 S. E. provide cogent evidence of its substitute, reck- 23 (1934). lessness. THE RECKLESS MOTORIST der" will suffice.1 63 But the require- ever intent is needed for such an as- ment of the use of a "weapon likely to sault. Such interpretation is clearly produce death" has been virtually reasonable, to correct a legislative mis- eliminated. Anything which a man can nomer, or to support a verdict for a use with intent to kill, will suffice for lesser crime than that actually proved, conviction, and no allegations charac- and the policy behind it is clear. Sta- terizing the means used are needed in tutory provisions drafted 75 years ago 164 the indictment. to codify the common law as it then existed should grow with the common Conclusion law. If the definition of "assault" in the We have found most of the automo- aggravated assault statutes were in- bile assault and battery cases following tended to be limited to the assault with- the historical development of battery out a touching which requires an intent in this country which started in 1858 to inflict injury, statutes penalizing an with the Sloanaker case, by which, as "assault with a deadly weapon with in- in manslaughter, there may be liabil- tent to do harm," as is true in Colorado, ity for injury recklessly caused. This Illinois and Oklahoma, would not have development of battery was virtually been drafted with such a tautological 6 completed before the first automobile form of expression.1 1 case was decided in 1912. Nor does the There is a simple solution for this relation between the penalties for as- problem which ought to be adopted in sault and battery and for reckless driv- every state---the enactment of a statute ing appear to have been at all material providing: in the automobile cases, except in guid- "In any criminal case, the word 'as- ing the prosecuting attorney's discre- sault' in any indictment, information, warrant, complaint, or other pleading tion in selecting the crime for which shall be deemed to include and charge to try the defendant. also a battery. Proof that a defendant There are a few exceptions. Liability has committed a battery shall be suffi- for assault has been imposed for reck- cient to sustain a conviction for assault in any crime in which criminal liability less conduct causing injury, although is predicated, in whole or in part, upon ordinarily an assault (as distinguished an assault." from a battery) requires an intent to This suggested statute, as far as plead- injure, or at least to alarm. But these ing is concerned, should be added to cases involve no more than interpret- §188 of the American Law Institute's ing the term "assault" in a statute or Code of Criminal Procedure. indictment to include also a battery, or The second exception is found where else finding in a reckless battery what- a reckless battery has been held to war- es In Wright v. State, 168 Ga. 690, 148 S. E. 731 a conviction for the aggravated assault was af- (1929), an indictment charging the infliction of firmed where the indictment charged the inflic- serious wounds by the operation of an automo- tion of injury with a reckless disregard of human bile "with a reckless disregard for human life" life "which reckless disregard was the equivalent was held insufficient, and in Minge v. State, 45 of an intent to kill and murder." Ga. App. 197, 164 S. E. 68 (1932), an allegation 184 Wright v. State, 168 Ga. 690, 148 S. E. 731 that an assault was committed "with malice (1929) (by a divided court), following Monday v. aforethought" was also held insufficient. But in State, 32 Ga. 672 (1861). Easley v. State, 49 Ga. App. 275,175 S. E. 23 (1934), 265 See supra, p. 152. LIVINGSTON HALL

rant a conviction for an aggravated as- from a review of all these cases, it ap- sault and battery which, by statute, pears that penalties have played a expressly required an intent to inflict much smaller part in the development harm or to murder. This rests upon of modern judge-made law than Pro- the cases from Illinois, Oklahoma and fessor Tulin's article seemed to indi- Georgia, and an ambiguous intimation cate. 6 6 in Tennessee. In each of the first Of course, where the meaning of a three states the automobile cases mere- statute is in doubt, courts should and ly follow earlier decisions involving do consider whether the penalty sheds other means of inflicting injury. In any light on the probable intention of Georgia at least, inadequacy of the pen- the legislature. This is a particularly alty for the reckless driver could not fruitful source of light where the ques- be the reason for his liability for the tion at issue is whether the requirement aggravated assault-18 months and of a fraudulent intent is to be read into $1,000 fine would seem to be enough for a statute.6 8 But it would seem better him under any rational view. Opposed on the whole, in the case of aggravated to these cases are decisions denying assault, if there had been no convic- liability under somewhat similar sta- tions based on reckless driving under tutes in Colorado, Iowa and Texas. statutes requiring a specific intent to The early non-automobile cases upon injure or kill, even if the alternative which the modern Illinois, Oklahoma was a penalty for a simple assault and Georgia decisions rest may well which the court felt to be inadequate. represent an attempt to find a suitable In Texas and New York, where the penalty for a reckless battery aggra- courts declined to let recklessness play vated by the infliction of serious injury the role of intent in assault and battery, or the creation of a great risk through corrective legislation was rapidly forth- the use of a deadly weapon, where the coming to deal with the reckless driver only aggravated assault which the leg- of an automobile.16 9 With legislatures islature had created required an intent as active as they are today, and in a to harm or murder. As Professor Tulin better position than most courts to has asked, "The function [of penalties] judge of the desires of their citizens, should be openly expressed. '16T But judicial restraint seems wiser than ever.

166 Shorter v. State, 147 Tenn. 355, 247 S. W. gent" operation of a vehicle "whereby another 985 (1923). suffers bodily injury" into an assault in the 167 Tulin, (1928) 37 Yale L. J. 1048 at 1069. third degree, carrying punishment up to one 168 The penalty was the determining factor in year and fine up to $500, or both. See supra, p. 141. the search for what "the Legislature must have The legislatures of Colorado and Iowa have intended" in People v. Clark, 242 N. Y. 313, 151 not raised their maximum penalties for simple N. E. 631 (1926). As to the importance of the assault and battery since the decisions referred penalty in the allied problem of mistake of fact, to. The Colorado penalty for assault and bat- see Perkins, Ignorance and Mistake in Criminal tery was already about adequate for a reckless Law, (1939) 88 U. Pa. L. Rev. 35, 59, and Sayre, driver-6 months' imprisonment or $100 fine. Public Welfare Offenses, (1933) 33 Col. L. Rev. Courtright Stat. (1913) §1659. The Iowa legisla- 55, 83. ture has permitted cumulation of assault and 169 The Texas statute was passed in 1917, with reckless driving penalties in its latest statute, a maximum penalty of 2 years' imprisonment which will permit a maximum sentence of 60 and $1,000 fine, for aggravated assault by auto- days' imprisonment and $200 fine for a battery mobile. See supra, p. 141. The New York statute by reckless driving. Laws 1937, c. 134, §§311, 314, was passed in 1921, making the "culpably negli- 315; Code (1935) §12929.