State v. Anderson , 100 Utah 468 ( 1941 )

I concur.

The opinion states:

"Under the involuntary manslaughter statute it is difficult to separate sharply an unlawful act not amounting to a felony from a lawful act done without due caution and circumspection or in an unlawful manner. There must be found some unlawful act either because of the unlawfulness itself or because of the manner of doing the act. On occasions both elements may be present, and sometimes there is an overlapping. An act prohibited by law and made illegal regardless of the way it is performed is an unlawful act. An act which is not in itself illegal, but may be lawful, but which in a given case becomes illegal because of the manner or way in which it is performed is a lawful act done in an unlawful manner and therefore becomes unlawful."

The difficulties mentioned by the opinion are indeed real and are further complicated by the requirement presented by Sec. 103-1-19, R.S.U. 1933, which reads as follows:

"In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence."

Many acts of negligence may be in a sense unlawful without involving intent to commit a crime or even intent to commit the act which results in a crime, or without involving criminal negligence. When we attempt to apply the manslaughter statute (Sec. 103-28-5, R.S.U. 1933), with the "due care" requirement in driving an automobile as laid down in Sec.57-7-16, R.S.U. 1933, as amended, together with the necessary element of criminal negligence, the task of fitting them together and unifying them is difficult. However, in the case of State v. Lingman, 97 Utah 180, 91 P.2d 457, which the prevailing opinion does not cite, this court attempted to meet that challenge. I place my concurrence largely on what was said in that case.