Neusbaum v. State

¹⁵² Offutt, J., delivered the opinion of the Court. Lloyd Neusbaum was indicted, tried, and convicted, of the crime of manslaughter, in the Criminal Court of Baltimore City, and upon his conviction sentenced to thirty days in jail. Erom that judgment he has appealed. The record shows that about eleven thirty o’clock on the night of December 7th, 1927, William Powell, while in the act of crossing Ostend Street at a point near Cleveland, in Baltimore City, was struck and killed by an automobile which . was being rapidly driven “down” that street.

The night was rainy, the street surface was slippery, and it was hard to “observe anything.” The driver of the automobile did not stop, but proceeded east on Cleveland Street to Cross Street, * turned north on that street, and escaped. For some reason not disclosed by the'record, the police suspected that LTeusbaum was driving the machine at the time of the collision, and he was arrested, charged with running Powell down, and subsequently indicted for manslaughter on the theory that Powell had been killed as a result of Heusbaum’s criminal negligence in the operation of the car which struck him. The indictment was filed on December 23rd and, on the 10th of the following January, Heusbaum demanded the particulars of the indictment and, on January 13th, he demurred to it. On January 16th the court granted his demand for the particulars of the indictment, but overruled his demurrer.

The bill of particulars appears to have been filed at or about the time that the case was called for trial, and defendant asserts in his brief that he asked for a postponement, which the court refused. He then demurred to the bill of particulars, and, after the demurrer was overruled, he filed the general issue plea to the indictment and the case proceeded to trial. He elected to be tried before a jury, and, during the process of selecting the jury, the assistant state’s attorney, in the presence of certain jurors who had been accepted as members of the special panel, speaking to others who were waiting to be examined on their voir diresaid, referring to the defendant and another jointly indicted with ¹⁵³ him, “these men are hit and run drivers.” The defendant objected to that remark and moved that a juror be withdrawn and the case continued. That motion was denied, and the examination of the jurors on their voir dire was resumed, and that ruling is the subject of the first exception.

But before the panel was completed the State amended its hill of particulars, and the defendant again asked for a continuance, which was refused. The court then ordered a re-arraignment of the defendant and offered him the “right to strike a new jury although the present panel has not been sworn oi' completed.” Counsel for the defense declined the offer and announced that “the eleven jurors previously examined and accepted were satisfactory to the defense.” The defendant was then re-arraigned, a plea of not guilty entered, and the trial proceeded. During the course of it the defendant reserved ten exceptions referring to rulings on questions of evidence, and those rulings, together with the ruling on defendant’s motion to discharge the jury and continue the case because of the statement of the assistant state’s attorney referred to above, and the rulings of the court on the demurrers to the indictment, are presented by the appeal for review in this court. The indictment is in the following form: “The jurors of the State of Maryland, for the body of the City of Baltimore do on their oath present that Jerry Jones and Lloyd Eeusbaum, late of said city, on the seventh day of December, in the year of our Lord, nineteen hundred and twenty-seven, at the city aforesaid, feloniously and negligently did kill and slay William Powell, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State.” The only difference between that form and the form prescribed by section 563 of article 27 of the Code, .is that it adds to the word “feloniously,” found in the Code form, the word “negligently.” The demurrer to it involved these propositions, (1) that it shows a misjoinder of defendants, (2) that it fails to charge any definite duty upon either defendant and fails to notify either of them of the particular act of negligence ¹⁵⁴ charged against them, (3) that it charged them with an illegal measure of care and diligence, and (4) that the indictment “charges upon the defendants a criminal responsibility for the alleged commission of a joint or common wrong, but does not charge that there was an exclusive duty upon any one of the defendants in respect to the happening of the accident.” The first objection may be dismissed without further comment than this, that the indictment does charge both defendants with the joint commission of a single unlawful act, to wit, the felonious and negligent killing of a human being, and since such act could be and was alleged to be the joint act of two1 persons, it was not error to join them in the same indictment. 1 Whart.

Cr. Proc., par. 351. The other objections considered together amount to no more than this, that the indictment fails to identify and describe the offence charged against the defendants with such precision and particularity as would apprise them of the specific crime of which they were accused, and that therefore it was in violation of article 21, Maryland Bill of Bights, which provides that “in all criminal prosecutions, every man hath a right to be informed of the accusation against him,” and of the Fourteenth Amendment to the Federal Constitution, which prohibits any state from making or enforcing any law abridging the privileges or immunities of citizens of the United States, or from depriving any person of life, liberty, or property without due process of law. The indictment, as has been noted, follows the statute, except that it adds the word “negligently” to the word “feloniously,” but in all other respects the two are identical.

So that the objection goes not only to the indictment in this case, but to the statute, and it becomes necessary to ascertain the nature of the crime of manslaughter and its constituent elements to determine whether the statutory form is sufficient (1) to notify the accused of the crime with which he is charged, and (2) whether the addition of the word “negligently” alters, contradicts, or enlarges the significance of the ¹⁵⁵ word “feloniously,” and if it does whether it vitiates the indictment. Manslaughter has been defined to be “the unlawful and felonious killing of another, without malice aforethought, either express or implied, and is either voluntary or involuntary homicide, depending upon the fact whether there was an intention to kill or not.”' (1 Wharton Cr. Law, par. 421.) A felonious homicide is where one takes the life of another human being “purposely and without legal excuse, or without such excuse takes it unintentionally while needlessly doing anything in its nature dangerous to life, or who causes death by neglecting a duty imposed either by law or by contract, or in the course of committing a crime or even a civil wrong. Life, however, must be actually taken.

The law protects human life by punishing as a felon one who, whether purposely or by want of due care or of due attention to legal or contractual duties, does or omits what results in the death of another. The wrong must have attained the law’s standard of magnitude, ascertainable only on examinations and comparisons of our past judicial records.” 2 Bishop on Cr. Law. par. 629. So that the elements of the offence are (1) the killing of one human being by another (2) unlawfully, but (3) without malice.

And the principal distinctions between that offence and murder at common law are (1) the absence of malice, and (2) that, after 23 Henry VIII, c. 1, par. 3, murder was excluded from a benefit of clergy. Ibid. par. 627, sec. 2. At common law it was essential that the indictment should show the name of the person charged, the name of the person killed, the jurisdiction within which and the time at which the homicide occurred, that it was felonious and such of the facts and circumstances incident to' the crime as were reasonably necessary to identify it, and to enable the court to see whether a crime had been committed as charged. Wharton Cr.

Proc., ch. 16. Measured by that standard, the indictment in this case would unquestionably be defective, but that is not the question involved here, which is, whether the indictment in this case conforms to the statute, and (2), whether the ¹⁵⁶ statute itself is valid. If the form prescribed by tbe statute is sufficient to inform the defendant of tbe “accusation against bim,” it does not violate article 21 of tbe Bill of Rights, and consequently is not repugnant to tbe “due process” clause of tbe Fourteenth Amendment of tbe Federal Constitution. It is said in 31 C. J. 651, that “it is within tbe power of tbe legislatures under such a constitutional provision to prescribe tbe form of tbe indictment or information, and such form may omit averments regarded as necessary at common law.

But tbe legislature, while it may simplify tbe form of an indictment or information, cannot dispense with tbe necessity of placing therein a distinct presentation of tbe offense containing allegations of all its essential elements.” So far as it goes, that statement is correct, and we know of no authority to tbe contrary, but tbe difficulty lies in applying tbe formula “all essential elements,” to tbe facts of a given case. Was it sufficient in this case, for instance, to say that tbe defendant negligently and feloniously killed William Powell at Baltimore City, or was it necessary to add that tbe homicide occurred on Ostend Street near Cleveland in tbe city of Baltimore, and was caused by tbe gross negligence of tbe defendant in tbe operation of an automobile which be was then and there driving ? It has been held that tbe allegation of place is sufficient if it shows tbe case to be within tbe jurisdiction of tbe court (31 C. J. 677, par. 20B), so that tbe only question is whether it was necessary to allege tbe manner and means of tbe killing. Tbe statute expressly says that it was not.

Code, art. 27, sec. 563. And unless tbe manner and means of death were essential elements of tbe crime of manslaughter, allegations as to them were not required in order to inform tbe accused of the accusation against bim as required by article 21, Declaration of Rights. Tbe question is by no means free from doubt, for while ordinarily tbe manner and means of death are mere incidents and form no part of tbe crime itself, yet it is quite possible that oases might occur when tbe bald charge that one at a certain time at a certain city feloniously killed an- ¹⁵⁷ oilier would afford him practically no information upon which he might base his defence. If in fact he had killed the person named in the indictment, he would naturally know of the circumstances, but if he had not, it might become of the utmost importance for him to know how and by wbat means the homicide occurred, and the indictment would furnish him no information as to those facts at all.

But that difficulty is met to some extent by the rule which allows the defendant the right to demand of the State the particulars of the offense with which he is charged, where the indictment is so general that it discloses no information sufficient to afford him a fair and reasonable opportunity to meet it and defend himself. Wharton Or. Proe. par. 1637. And that right was recognized hv this court in Lanasa v. State, 109 Md. 612 , and while such a motion or demand is addressed to the discretion of the court, nevertheless it is a sound discretion and may he reviewed where there is a gross' abuse of it resulting in injury to the accused.

And it may be added that, wherever the precise question now under consideration has arisen, the right of the legislature to prescribe a short form of indictment such as that provided by Code, art. 27, see. 563, has been upheld, sometimes on the ground that the defendant’s right to have the particulars upon demand protected him against injury, and at others on the-ground that the manner and means of death were not elements of the crime of manslaughter, and that allegations as to them were not necessary to inform the prisoner of the accusation against him. Statutes similar in character to that now under consideration have been enacted in many of tbe American states as well as in England, in an effort to escape the excessive formalism of the common law, which formerly made the conviction or acquittal of one charged with crime so often turn upon some technical quibble rather than upon the guilt or innocence of the accused, and the uniform tendency of the courts has been to uphold them whereever that could be done without infringing the right of the accused to the protection of such constitutional guarantees, as the right to be informed of tbe ¹⁵⁸ charge against him. So that, while there have been cases in which such statutes have been held bad, they were nearly always eases where the statute failed to require such a statement of the offence as would certainly identify it, as in Goeller v. State, 119 Md. 61 , where the defendant was convicted of selling liquor on Sunday upon an indictment charging that offense alone, .but was sentenced as a second offender upon the authority of a statute which dispensed with the necessity for alleging in the indictment that the crime charged was a second offense, or State v. Silverman, 76 N. H. 309, where it was held that a statute which dispensed with the necessity of describing the property taken in an indictment for embezzlement was bad. But such cases proceed upon the theory that the omissions allowed by the statute are essential elements of the crime, and are not authority for the proposition that a statement of the manner and means by which the crime was committed are essential, but on the contrary the rule seems to be that such allegations are not essentia] except where the manner in which or the means by which the act is done imposes criminality. 31 C. J. 694.

That they are not essential elements of the crime of manslaughter or murder in such a case as this is established by what seems to be the decided weight of authority, and for purposes of illustration we will refer to some of the cases in which the question has been discussed. One of the earliest, if not the earliest case, in which the question arose in this country was Commonwealth v. Webster, 5 Cush. 296 , where the indictment alleged that the murder charged had been committed “in some way and manner, and by some means, instruments and weapons, to the jurors unknown.” After a very careful analysis of the English and American cases and text books, the court held that statement sufficient. In State v. Verrill, 51 Me. 408 , the court followed Commonwealth v. Webster, supra, in passing upon the validity of a statute which provided that: “In any indictment for murder it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indict ¹⁵⁹ ment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought, hill and murder the deceased.” The constitution of that state required that all the elements of or acts necessary h> the crime charged in the indictment should be set out. It was contended that under that provision an indictment for murder in the language of the statute was bad, but in overruling that contention the court said: “It requires no argument to show that 'the manner in which and the means by which’ a crime has been committed, are no part of the crime itself.

The means by which a thing is accomplished, from the very nature of the case, cannot be the thing itself. The way which leads to the end cannot be the end. There are cases where an act may be criminal or otherwise, according to the circumstances under which it is done. If made criminal by the circumstances, then they become constituent elements of the crime and must be set out.

Otherwise they are not a part of the crime and need not be set out.” In Graves v. State, 45 N. J. L. 358, in dealing with a similar statute, the court said: “When the legislature, commendably simplifying the form of the indictment, provided that in charging the crime it should not be necessary to set forth the manner in which or the means whereby the death was caused, but that it should