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District Court of Appeal, Second District, Division 1, California.


Cr. 3187

Decided: May 31, 1939

Ward Sullivan and Thornwell Rogers, both of Los Angeles, for appellant. Earl Warren, Atty. Gen., Burdette J. Daniels, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and Jere J. Sullivan, Deputy Dist. Atty., both of Los Angeles, for the People.

Defendant and appellant was found guilty by a jury of negligent homicide as defined by section 500 of the Vehicle Code, St.1935, p. 173, and appeals from the judgment as well as from the order denying a motion for a new trial.

As a major contention on appeal it is urged by appellant that the trial court erred in refusing to give defendant's proposed instruction defining criminal negligence, but instead, in defining negligence, adopted the definition thereof contained in subdivision 2 of section 7, of the Penal Code, which is as follows: “The words ‘neglect,’ ‘negligence,’ ‘negligent,’ and ‘negligently’ import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns.”

Section 20 of the Penal Code provides as follows: “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence,” in which connection it is argued by appellant that, by construction, negligence, in order to justify a conviction under section 500 of the Vehicle Code, must constitute criminal negligence as contemplated by section 20 of the Penal Code. The refused instructions in part were as follows: “Criminal negligence in degree goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable. In other words, in order to constitute criminal negligence there must enter into the act some wantonness or flagrant or reckless disregard of the safety of others, or wilful indifference, and if no one of these elements enters into the act the person charged cannot be held guilty of criminal negligence. * It is such negligence as would amount to a flagrant and reckless disregard of defendant's own safety and amount to a wilful indifference to the injuries liable to follow. In other words, criminal negligence is the doing of a lawful act in a culpably reckless manner.”

Appellant relies upon the authority of People v. Hurley, 13 Cal.App.2d 208, 56 P.2d 978, and People v. Driggs, 111 Cal.App. 42, 295 P. 51, 53. In the Driggs case, after referring to the definition of negligence as found in section 7 of the Penal Code, the court continues: “Though found in the Penal Code, this definition of ‘negligence’ is only of an act which fixes civil liability; it is the definition of the kind of act which fixes responsibility upon, for instance, drivers of automobiles, where no criminal element whatever is involved. In order to constitute criminal negligence, there must enter into the act some measure of wantonness or flagrant or reckless disregard of the safety of others, or willful indifference. If no one of these elements enters into the act, the person charged cannot be held guilty of criminal negligence.” The opinion in the Hurley case quotes at length from the Driggs opinion and arrives at the same conclusion.

In the Driggs case the defendant was charged with assault with a deadly weapon with intent to commit murder, and in the Hurley case the defendant was charged with manslaughter.

Whether the above-mentioned conclusion with regard to the meaning and application of the term “criminal negligence” is warranted, affords an opportunity for a distinct difference of opinion. That the decisions of many states, as pointed out in the Hurley case, are in accord with the conclusions therein reached, there can be no question. And in California such a meaning has been suggested, in obiter dictum, in Grossetti v. Sweasey, 176 Cal. 793, at page 800, 169 P. 687, 689, wherein the court, by way of example, observed in connection with the subject there considered that, “It may be legitimate argument to call a jury's attention to the fact that very gross negligence may take the place of specific intent in a prosecution for certain crime. The term ‘criminal negligence’ is used to designate that sort of negligence. Pen.Code, § 20.” Nevertheless whether such a doctrine is applicable in California, is doubtful.

The law is well settled, and there can be no dispute, as to the meaning of the word “intent” as used in the criminal law in general, and as used in section 20 of the Penal Code in particular. (7 Cal.Jur., p. 850 et seq.) However, in order to determine the meaning to be given to the combination of words “criminal negligence”, as used in the section, requires extended consideration. Primarily, it should be noted that section 7 of the Penal Code provides that “The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context.” Then follows the definition of “negligence” as above set forth. Section 13 of the Civil Code is as follows: “Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition.” Because the foregoing language appears in the Civil Code, it is no less applicable to the provisions of the Penal Code. Therefore, unless the words “criminal negligence” were technical words or had “acquired a peculiar and appropriate meaning in law” at the time section 20 of the Penal Code was adopted by the legislature, they are to be “construed according to the context and the approved usage of the language” and, unless otherwise apparent from the context, the word “negligence” must be given the meaning as defined by the legislature.

At the outset it should be noted that section 20 of the Penal Code was adopted by the legislature in 1872. It follows almost exactly the phraseology of the same provision adopted by the legislature in 1850. (Stats. of Calif., 1850, chap. 99, p. 229.) In that connection it becomes important to ascertain the accepted meaning of the words “criminal negligence” at the time the code provision was adopted. A comprehensive research among scores of volumes reveals the following: The phrase is not to be found in Blackstone, who appears to have originated the combination of words “without due caution and circumspection”. It is not to be found in any of the early text books on criminal law. The words “criminal negligence” are not included as a compound word in any accredited dictionary. The first edition of Bishop's Criminal Law appeared in 1856. The eighth edition appeared in 1892. Even in this last edition there is no mention of the term “criminal negligence”. Bishop refers to the subject as follows: “Carelessness,—when producing certain evil results, is, we shall by-and-by see, criminal. But it follows from the doctrine of this chapter, and from the reason of the thing, that there may be a carelessness so slight as not to be of account in the criminal law. In principle, the line distinguishing the less degree from the greater is not quite easy to find, and when we seek for it in authority it there appears variable and uncertain.” And, “Carelessness Criminal.—There is little distinction except in degree between a will to do a wrongful thing and an indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent.” (Bishop's New Criminal Law, vol. 1, pp. 119 and 188.) Other early text writers expound the same doctrine in substantially the same manner and without the use of the term “criminal negligence”. The only reference in the American Digest, Century Edition (which covers the period from 1658 to 1896), and the American Digest, First Decennial Edition (which covers the period from 1897 to 1906), to the term “criminal negligence” appears in volume 14 of the former at page 641, wherein, under the heading “Criminal Intent and Malice”, follows the simple statement that “To constitute a crime, the criminal act must be accompanied by a criminal intent or criminal negligence”; however, no decision prior to 1872 cited in the footnote makes any reference to the words “criminal negligence”. Based on the research in connection with the preparation of the within opinion, it appears that the term as approved in People v. Hurley, supra, was first used in 1891 in Omaha & R.V.R. Co. v. Chollette, 33 Neb. 143, 49 N.W. 1144. It is used in the same manner in State v. Goetz, 83 Conn. 437, 76 A. 1000, 30 L.R.A., N.S., 458, in 1910, and again in Schultz v. State, 89 Neb. 34, 130 N.W. 972, 33 L.R.A.,N.S., 403, Ann.Cas.1912C, 495, in 1911. The foregoing authorities, among others, are relied upon in People v. Hurley, supra.

The use of the term “criminal negligence” as defined in the cases just cited, has since become somewhat extensive. Volume 2, First Series, of Words and Phrases Judicially Defined (published in 1904), includes the definition of “Criminal Negligence”, citing Omaha & R.V.R. Co. v. Chollette, supra, for authority. Volume 1 of Words and Phrases, second series, (published in 1914), page 1153 defines “Criminal Negligence”, citing for authority the Omaha & R.V.R. Co. v. Chollette case, supra, and as well State v. Goetz, supra, and Schultz v. State, supra.

It is at once evident, therefore, that at the time section 20 of the Penal Code was adopted in 1872, the words “criminal negligence” had acquired no peculiar meaning in the law, nor could they have been regarded as among “technical words” to be construed according to a “peculiar meaning in law”, hence they are to be “construed according to the context and the approved usage of the language” at the time the section was adopted by the legislature. Such is the clear mandate of section 13 of the Civil Code, and, “unless otherwise apparent from the context”, they are to be given the “signification attached to them”in the section, if the mandate of section 7 of the Penal Code is to be respected.

It should be emphasized at this point that at the time the codes were adopted in 1872 the Civil Code contained a provision defining the degrees of negligence, which provision was repealed the following year. See sec. 17, Civ.Code, and Walther v. Southern Pacific Co., 159 Cal. 769, at page 775, 116 P. 51, 37 L.R.A.,N.S., 235.

It is also noteworthy that the term “criminal negligence” is not defined, nor is there anything in the statute law of California that indicates an intention to give to the words “criminal negligence” any different meaning as used in section 20 of the Penal Code than their meaning as used elsewhere according to the “approved usage of the language” at that time.

Negligence assumes countless forms and occurs in all walks of life and human endeavor. Generally speaking, when actionable, it is a violation of private rights and injuries for which there is a remedy only by civil action. That the legislature has the power to declare negligence the basis and subject-matter of a crime there can be no question. When so declared such negligence becomes criminal. By the simple process, and manifestly relying upon the “approved usage of the language”, by modifying the noun “negligence” with the adjective “criminal”, the legislature clearly intended to and did establish the doctrine that negligence should not be a crime unless declared so by statute, and when so declared becomes the equivalent of the “intent” common to other offenses.

There are no limitations or restrictions on the use of a language, and hence there can be no criticism of those who have elected to use the word “criminal” for the purpose of denoting degree and as a synonym of such words as: gross, wanton, flagrant, reckless, and other superlatives similar in meaning. But its use for such purpose can scarcely be justified when the derivation of the word “criminal” is taken into account. In that connection Ruling Case Law sums up the subject as follows: “There has been considerable controversy as to whether the concept embodied by the term ‘negligence’ is susceptible of subdivision, some courts have insisted that negligence exists in degrees, described as ‘slight’, ‘ordinary’, and ‘gross', and that a cause of action sounding in one degree is different than a cause sounding in another degree. This theory appears to have been introduced into the common law from some of the commentators on Roman law; and, though disapproved by the general trend of modern jurisprudence, is adhered to with firmness by the courts of some jurisdictions. By such definite system, resting on a broad, sensible foundation and rising harmoniously to the finality of minor details, enabling courts to be guided, in the main, by principles instead of mere precedents, justice is capable of being administered on the basis of law as a science, instead of its drifting into confusion and taking on the cast of results of arbitration by courts. On the other hand, the Supreme Court of the United States has said: ‘It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree thus described not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. (*Footnote: The Steamboat New World v. King [16 How. 469], 14 L.Ed. [1019] 1021.) Whatever phraseology may be adopted to describe the defendant's conduct, the thought sought to be expressed is absence of the care that was necessary under the circumstances. The term ‘negligence’ unqualified covers all those shades of inadvertence which range between deliberate intention on the one hand and total absence of responsible consciousness on the other. In any case it is for the jury to determine the degree of the defendant's responsibility.” (Vol. 20, R.C.L., p. 21.)

In connection with the subject here considered it should be noted that in the case of People v. Seiler, 57 Cal.App. 195, 207 P. 396, 399, it was sought to define the phrase “without due caution and circumspection” as the equivalent of criminal negligence as later defined in the Hurley case, supra. In denying the petition for a hearing, the Supreme Court of California took occasion to point out that “The lack of due caution and circumspection need not go to the extent of being wanton or reckless, although it might possibly be such as would be defined as culpable. But the word ‘culpable’ is not an apt description of the idea intended to be conveyed by the words ‘due caution and circumspection.’ ” People v. Seiler, supra, 57 Cal.App. at page 201, 207 P. at page 399. In that regard it is appropriate to further observe that the phrase “without due caution and circumspection” as used in section 192 of the Penal Code is the equivalent of the word “negligently” and is in perfect harmony with that word as defined in section 7 of the Penal Code. The unlawful killing of a human being without malice resulting from the commission of a lawful act which might produce death, without due caution and circumspection, is declared to be a crime. A lack of due caution and circumspection, or in other words, negligence, is an element of the offense. Such negligence is therefore criminal, and serves as another example of “criminal negligence” as contemplated by section 20 of the Penal Code.

Manifestly, in the light of the foregoing the word criminal, at the time section 20 of the Penal Code was adopted, had not such “signification” as contended for by appellant. For the courts to give it the quality of degree would, in effect, restore by judicial decision what the legislature has rejected by appropriate legislation. Therefore, with regard to negligence, unless the legislature by statute declares a certain degree to be a pertinent part and phase of offenses generally, or of some offense in particular, it must be assumed that the matter of degree was purposely disregarded, and therefore not intended to be incorporated as an element of the offense. Hence in a prosecution for the offense set forth in section 500 of the Vehicle Code, the degree of negligence is immaterial, and whether the acts or omissions charged to the defendant on trial constitute negligence, is for the jury to determine.

On the foregoing subject the jury was correctly instructed, and appellant's proposed instruction was properly refused.

It is next contended by appellant that the court committed prejudicial error in refusing to give defendant's proposed instruction defining excusable homicide. The proposed instruction was based on subdivision 1 of section 195, and subdivision 6 of section 26, of the Penal Code. It was objectionable and properly refused for the reason that in the proposed instruction the words “criminal negligence” were used according to the theory herein contended for by appellant and herein before considered. The instruction was properly refused, also, on other grounds. Section 26 of the Penal Code provides that “All persons are capable of committing crimes except those. * Six. Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” Negligence, which causes the death of a person within the meaning and application of section 500 of the Vehicle Code, is culpable negligence as contemplated by section 26 of the Penal Code. “Culpable” means “blameworthy”. Manifestly, to instruct the jury either in substance, or literally, as to the provisions of section 26, would serve no purpose.

Subdivision 1 of section 195 of the Penal Code, which declares that “Homicide is excusable * when committed by accident and misfortune * or in doing any other lawful act by lawful means, with usual and ordinary caution” is merely a provision which serves to complete the definition of negligence. Although such an instruction, couched in the language of the statute, can do no harm in the sense that it would tend to confuse, nevertheless the failure of the court to give the instruction, particularly in the form and substance offered, cannot be successfully urged as prejudicial error.

Finally, it is contended that the court erred in instructing the jury in effect that contributory negligence constituted no defense. “According to the clear weight of authority, the rule of law concerning contributory negligence by the injured person as a defense in a civil action for damages for personal injuries is not applicable to a prosecution for manslaughter as the result of negligence.” (13 R.C.L., p. 859.) The foregoing rule has been followed in California. People v. McKee, 80 Cal.App. 200, at page 205, 251 P. 675; People v. Marconi, 118 Cal.App. 683, at page 687, 5 P.2d 974. And the same may be said with regard to a prosecution for the offense of which the appellant herein was charged.

For the foregoing reasons the judgment and the order denying the motion for a new trial are, and each of them is, affirmed.

DORAN, Justice.

We concur: YORK, P.J.; WHITE, J.