People v. Orr , 243 Mich. 300 ( 1928 )

Although defendant requested it, no instruction was given the jury relative to burden of proof. This is reversible error. The situation was not met by giving an excellent instruction on presumption of innocence. Defendant is entitled to a new trial, and that being so, another matter should be considered. In the trial, counsel for defendant did not contend that his client had not been guilty of wilfulness, wantonness, and recklessness, so-called gross negligence, as distinguished from negligence, in effect, that there was no evidence to support the charge of manslaughter, but he makes that contention in this court, and that, doubtless, would be his position in a new trial.

The evidence made a case of negligent homicide for the jury, which case is based on negligence, ordinary negligence so-called, as provided by Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2]). Whether the defendant suffer conviction of manslaughter or of negligent homicide makes some difference to him. In the former the maximum penalty is 15 years, and in the latter 5 years.

The charge of manslaughter is here without evidential support. 26 Mich. Law Rev. 820. Before defendant may be found guilty of wilfulness, or of wantonness and recklessness, which in effect are wilfulness, three necessary elements must be found according to note 69 L.R.A. 516; and text 20 Rawle C. L. p. 145, heretofore approved by this court:

(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.

(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.

(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. The third element at least is wholly lacking. There is no evidence to indicate that when defendant attempted to pass the standing cars it must have been apparent to him, having an ordinary mind, that his attempt was likely to prove disastrous to another. The consequence of disaster was as likely to fall on defendant as upon any other. Just before the coming of defendant's car, August Mellin, husband of the woman at the wheel of the parked Hudson car, had driven a car around and past the stalled Chevrolet. He had done successfully (as had a number of other drivers) practically the same act that defendant attempted. Defendant was mistaken in thinking he had time and opportunity to pass the parked cars. But his act, like that of Mr. Mellin and the other drivers, was not wilful or wanton. At most, a jury might find that defendant did not use due care — was negligent.

It is common error to think that because the result of a negligent act is dire the act itself is wanton. Negligence is negligence be it much or little. The difference between negligence and wilfulness or wantonness is not in degree but in kind. Negligence is characterized chiefly by inadvertence, thoughtlessness, inattention, and the like, while wantonness or recklessness, in effect wilfulness, is characterized, as the words imply, by wilfulness.

We need not pursue the question, as authorities on it are abundant and accessible. Defendant should answer the charge of negligent homicide, not manslaughter.

Conviction set aside. New trial ordered.

NORTH, FELLOWS, and McDONALD, JJ., concurred with CLARK, J.

The late Chief Justice FLANNIGAN did not sit.

The late Justice BIRD took no part in this decision.