Commonwealth v. Hawkins , 157 Mass. 551 ( 1893 )

Knowlton, J.

The only exception argued was to the instruction which the court gave, that the jury might consider, as a circumstance bearing on the question of the defendant’s conduct, the fact that the firing of the pistol was an unlawful act, done in violation of a city ordinance.

The principal question of fact submitted to the jury was whether the defendant discharged the revolver in a grossly negligent or wanton and reckless manner. The jury were instructed, in substance, that, if he did, he was criminally liable for the consequences of his act.

It is a general rule in criminal proceedings at common law that the defendant cannot be convicted unless a criminal intent is shown, but it is not necessary that he should have intended the particular wrong which resulted from his act. If he intends to do an unlawful and wrongful act, which is punishable because it is wrong in itself, and in doing it he inflicts an unforeseen injury, he is criminally liable for that injury. It is a familiar rule that one who shoots intending to hit A., and accidentally hits and injures B., is liable for an assault and battery on B. So, in cases of homicide, the rule is well established, that one who wantonly, or in a reckless or grossly negligent manner, does that which results in the death of a human being, is guilty of manslaughter, although he did not contemplate such a result. His gross negligence hi exposing another to a personal injury by intentionally doing the act makes his intention criminal, and supplies all the intent which the law requires to make him responsible for the consequences. Commonwealth v. Pierce, 138 Mass. 165, and cases cited. This principle is equally applicable to other cases where a personal injury results from a wanton or reckless act which is likely to do bodily harm, or from any gross negligence which causes the danger. In the case at bar, if Mary A. Powers had died from the pistol shot, the defendant, on the facts found by the jury, would have been guilty of manslaughter. As she survived the injury, the same principle now requires a conviction of assault and battery. There has been much discussion in the cases in regard to the nature of the intent necessary to constitute this crime, but the better -opinion is that nothing more is required than an intentional doing of an act which, by reason of its wanton or grossly negligent character, exposes another to personal injury, and causes such an injury. See Meader v. Stone, 7 Met. 147, 151; Commonwealth v. White, 110 Mass. 407; Commonwealth v. Stratton, 114 Mass. 303; Commonwealth v. Adams, 114 Mass. 323; Commonwealth v. Mann, 116 Mass. 58, 61, Commonwealth v. Pierce, ubi supra; Rex v. Burton, 1 Strange, 481, Rigmaidon's case, 1 Lewin, 180; Regina v. Fretwell, 9 Cox C. C. 471; Gibbons v. Pepper, 4 Mod. 405; Weaver v. Ward, Hob. 134; Peterson v. Haffner, 59 Ind. 130; State v. Myers, 19 Iowa, 517.

Inasmuch as recklessness or gross carelessness lies at the foundation of the charge against the defendant, the fact that the act was done in violation of a city ordinance was proper evidence for the consideration of the jury on the question of negligence. Lane v. Atlantic Works, 111 Mass. 136. Damon v. Scituate, 119 Mass. 66, and cases cited. Exceptions overruled.