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 Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons 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.