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Unintentional Homicide in the Commission of an Unlawful Act I

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Unintentional Homicide in the Commission of an Unlawful Act I May, 1939 UNINTENTIONAL HOMICIDE IN THE COMMISSION OF AN UNLAWFUL ACT I. WILNER t HISTORICAL Bracton, while asserting that one who commits homicide by chance, as by misfortune, is not liable to punishment for "homicide", very inter- estingly adds "But here it is to be distinguished whether a person is employed upon a lawful or unlawful work, as if a person has projected a stone towards a place across which men are accustomed to pass, or whilst a person pursues a horse or an ox, and someone has been struck by the horse or the ox, and such like, this is imputed to his account. But if he was employed in a lawful work, as if a master is flogging his scholar for the sake of discipline, or if when a person was casting down hay from a cart . if he had taken as diligent care as he could, by looking out and by calling out . in suitable time and with a loud voice . blame is not imputable to him." 1 (Italics supplied.) Whether this passage actually represents the law as it existed in Bracton's time or not (significance can be attached to the fact that this concept of unlawful act is not noted at all by Glanville or Britton who wrote at approximately the same time as Bracton), it is quoted as the first clear statement on the subject to be found in English law. As it stands, this passage is already full of the uncertainties and doubts which have pervaded this subject for centuries since. Expressed in modem terms, this passage contains the proposition that an unintentional homi- cide can under no circumstances be held to be a case of misadventure unless it happened in the commission of a lawful act, while proper care to avoid injury was being taken by the defendant. It is to be noted that the standard of care required by Bracton is a subjective one. The de- fendant must have taken as diligent care as he could, not merely reason- able'care. Bracton does not specify the kind of unlawfulness which, if present, will cause the homicide to be "imputed to his account", nor what the consequences of the guilt, if imputed, are. It is to be noted, however, that the examples mentioned by Bracton are distinguished by wilful action in the face of manifest danger to human safety. The meaning attached to "unlawful act" in the subsequent development of the law, therefore, becomes the subject of further inquiry. t B. A., I932, Clark University; LL. B., i935, LL. M., 1936, University of Pennsyl- vania; member of the Pennsylvania bar. i. DE LFGrmus, Liber III, 2d treatise, c. 4. (8ui) UNIVERSITY OF PENNSYLVANIA LAW REVIEW Coke stated the rule that if the homicide occurred while the de- fendant was engaged in the commission of an unlawful act, it was murder. While this author stated the consequences of such homicide in a more specific manner, he did not make it clear what kind of unlawful act will make the homicide murder. From the illustration which he furnished in connection with his rule, it is clear that he held it to be the law that any unlawful act, even if not a felony, was sufficient. 2 The difference between shooting at a tame fowl, and at a fowl fera naturae, which is not a subject of larceny, was the decisive factor in determining whether a man who happened to kill somebody by the glancing of his arrow was to be condemned as a murderer, or his case adjudged to be one of misfortune and misadventure. Hale represents an advance in the law by narrowing the scope of the "unlawful act" which will prevent a homicide happening in its commission from being per infortunium. To him, also, a homicide is purely "involuntary" and casual where a man is doing a lawful act, and without intention of bodily harm to any person, "as if a man be shooting at buts or pricks, and by casualty his hand shakes, and the arrow kills a by-stander". 3 However, by his statement that malice will be implied when a homicide is committed by a person while intending theft or burglary,4 he in effect says that at least where the unlawful act is not a felony, the homicide will not be deemed murder but merely manslaughter. A new refinement was intro- duced by Hawkins and Foster. Both of these authors place a good deal of emphasis on the intention of doing "mischief", though not making it clear just what kind of conduct may be labeled mischievous. 5 Certain it is that a felony, even if it were merely an attempt to steal a 7 deer, was regarded as mischief per se. In the case of Rex v. Keate, Chief Justice Holt expressed the opinion that Coke's statement above referred to, was a very exaggerated proposition of law, and that such unintentional homicide would amount to murder only where there was 2. 3 Co. INST. *56. For an early example of homicide which was not considered a felony because unintentionally caused in the commission of a lawful act, see 15 VINER, A GENERAL ABRiDGMENT OF LAW AND EQUITY (2d ed. 1793) 5IO: "If I cut my tree and the branch falls upon a nan, and kills him against mny will, this is not felony ... " J.Kelyng cites PouLTOx, DE PAcE 120, that it is but misadventure if there was warn- ing given, Kel. J. 4o. So also "if a man shoots at butts, and his arrow glances, and he kills a man, this is"not felony. ." VInER, loc cit. supra. 3. I HALE, PLEAS OF THE CROWN *472. 4. Id. at *455. 5. "That which is without malice is called manslaughter, or sometimes chance- medley, by which we understand such killing as happens either on a sudden quarrel, or in the commission of an unlawful act, without any deliberate intention of doing any mischief at all." i HAWKINs, PLEAS OF THE CROWN (6th ed. Leach, 1788) 115. "If an action unlawful in itself be done deliberately and with intention of mischief or great bodily harm . fall it where it may, and death ensues against or beside the orig- inal intention of the party, it will be murder." (Italics supplied.) FOSTER, CROWN CASES (3d ed. 1792) 26r. 6. Id. at 259. 7. Comb. 406 (I. B. i697). UNINTENTIONAL HOMICIDE (a) an intent to commit any felony, or (b) a design of mischief toward a person." In Rex v. Plumer,9 Chief Justice Holt reiterated the above opinion, and said that where the defendant was committing or intending to commit a felony, the unintentional homicide will be murder even if the felony did not tend to hurt anybody. If not done in the commission of a felony, the homicide will be murder if the unlawful act be a delib- erate one, and mediately or immediately tending to hurt someone; other- wise it will be manslaughter. Blackstone, likewise, considered the likelihood of doing bodily mischief to another person as the factor which determines when an unlawful act is of the quality required to make the unintentional homicide resulting from its commission murder or merely manslaughter."0 For the homicide to be manslaughter, it is tacitly assumed in all the sources referred to, that it is irrelevant whether there was any intention of doing mischief or not. The later English cases have not altered this view. In the case of Regina v. Packard," the facts were that D, in order to prevent a deputy-sheriff from con- summating a levy upon his property, got the latter to drink heavily, no compulsion or any slighter pressure having been resorted to by D. After the deputy-sheriff became intoxicated, he was put in a carriage by D and driven around for several hours. The deputy-sheriff died of the com- bined effects of the liquor and the bumps to which he was subjected by the moving of the carriage. It was held that D was guilty of man- slaughter because D's purpose to get his property out of the possession of the victim rendered his drinking with the sheriff, and driving him about, unlawful acts. The lack of intent to cause death or any harm, or the absence of reasonable expectation of the result, did not weight the scale in D's favor. I. THE JUSTIFICATION FOR THE RULE THAT THE UNLAWFUL ACT EXCLUDES THE POSSIBILITY OF MISADVENTURE IN AN UNINTENTIONAL HOMICIDE While the concept discussed in the preceding section has gradually entrenched itself in our law, one can not but be amazed to find that it has become a well recognized rule of law with hardly any discussion as to its intrinsic merits.' 2 8. It was at about this time that some clear cases illustrative of the principle of aberratiodelicti as applied to homicide had been decided. These are cases of homicide in the commission of an unlawful act, which is of the same quality and gravity as the one actually perpetrated. See Anne Gore's Case, 9 Co. Rep. 8i (a) (K. B. 16I). 9. 12 Mod. 627 (K. B. 1701). 10. 4 Br. Comm. *182, 191. xi. Car. & Mar. 236 (1841). 12. This concept, let it be remarked, is not peculiar to the Anglo-American law. It is firmly established, though in a different form, in some of the continental codes. France: CoDE" PtNAL (18io) art. 319: "Quiconque, par maladresse, imprudence, inattention, negligence ou iwbservation des riglemnens, aura commis involuntairement, 8i4 UNIVERSITY OF PENNSYLVANIA LAW REVIEW It will be shown in subsequent portions of this article that the law on this subject can not generally be regarded as based on the principle that a person is responsible for the natural and probable consequences of his act.
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