1. To sustain an indictment charging involuntary manslaughter in the commission of a lawful act in a negligent manner the degree of negligence must be more than that required to sustain a civil action for damages, and must be such as shows a reckless disregard for the safety of others, as distinguished from lack of ordinary care.
2. Whether or not the acts of negligence alleged in the indictment are sufficient to meet the foregoing standard or degree, is a question of law for the courts to decide, and is not a question that can be left to the decision of a jury.
3. The alleged acts of negligence set forth in the present indictment and appearing in the statement of facts are insufficient to show criminal negligence in the commission of a lawful act.
No. 16090. MARCH 17, 1948.
The grand jury of Fulton County returned a bill of indictment in two counts against A. F. Geele Sr., A. F. Geele Jr., and R. E. O'Connell, hereinafter referred to as the defendants, charging them in two counts with the offense of involuntary manslaughter while in the commission of a lawful act without due caution and circumspection. The acts and omissions alleged in the indictment to constitute criminal negligence, resulting in the death of C. C. Rasmussen as to the first count and Virginia Torbert as to the second count, are in substance as to count 1 as follows: "(a) By failing to provide and maintain in said hotel on the second
floor or story thereof, any serviceable fire hose, capable of holding water for the purpose of extinguishing fire. (b) By failing to provide and maintain in said hotel on any floor or story thereof, any serviceable fire hose capable of holding water for the purpose of extinguishing fire. (c) By providing and maintaining in said hotel for the purpose of extinguishing fire,
fire hose which were rotten, broken, abraised, torn, and containing holes and incapable of holding water. (d) By providing and maintaining in said hotel on the second floor or story thereof, for the purpose of extinguishing fire, fire hose which were rotten, broken, abraised, torn, and containing holes and incapable of holding water. (e) By maintaining an open winding stair well in said hotel extending from the first or lobby floor at the street level upward through all the floors and stories of said hotel, the same constituting a vent or chimney whereby fire would rapidly spread throughout the hotel and its hallways, corridors, rooms and stories. (f) By failing to provide doors on each floor of said hotel at said winding stair well and where the stair well rose to each floor and where it rose above each floor so that the spread of fire and flame would be arrested and impeded in its spread from floor to floor. (g) By failing to provide doors of fire-resistant material and construction on each floor of said hotel at said winding stair well and where the stair well rose to each floor and where it rose above each floor, so that the spread of fire and flame would be arrested and impeded in its spread from floor to floor. (h) By maintaining vertical shafts or pipe vents through which the piping and plumbing passed, said shafts extending upwards through the floors and stories of said hotel, there being on each floor in the corridor, an opening into said shaft covered only by a wooden door, the result being in case of fire, a burning of said wooden door and the rapid spread of flames and fire from floor to floor through said open shaft. (i) By failing to provide and maintain fire-resistant blocks or obstruction along said shaft described in paragraph ``h' above, between the several floors of the hotel to impede and obstruct the spread of flame and fire from floor to floor in said shaft, and by failing to provide and maintain fire-resistant doors covering the openings into said shaft from the corridors of said hotel. (j) By failing to provide doors of fire-resistant construction and material to each of the guest rooms of said hotel opening into the corridors. (k) By maintaining and providing wooden doors to each of the guest rooms of said hotel opening into the corridors. (l) By failing to maintain and provide a fire watch or watchman to make periodic and regular inspection of the floors, corridors,
and premises of said hotel. (m) In providing and maintaining only one fire inspection per night, that is, at three o'clock a. m. (n) By failing to maintain and provide a sprinkler system for the extinguishing of fire. (o) In maintaining and providing burlap cloth covered with two coats of paint as a wainscoting for the walls, corridors, stairways, and rooms of said hotel, which burlap cloth was a material rapidly combustible and inflammable when covered by said paint. (p) In failing to prepare, treat, and spray the carpets in the corridors, stairways, and rooms of said hotel so as to make them resistant to spread of fire and flame. (q) In maintaining and providing carpets in the corridors, stairways, and rooms of said hotel which were rapidly combustible and inflammable and calculated to spread flame and fire throughout the corridors and rooms of said hotel. (r) In failing to maintain and provide any outside fire escapes. (s) In failing to maintain and provide any outside fire escapes accessible to all guest rooms of said hotel. (t) In failing to maintain and provide any outside fire escapes accessible to the guest rooms on the 15th floor of said hotel. (u) In that accused persons did not discover the fire in which the deceased was killed and warn him thereof in order that he might escape and save his life. (v) In failing to maintain and provide any inside fire escape or exit constructed of fire-resistant material. (w) In failing to maintain and provide any system of fire alarm for the purpose of arousing and warning the guests in said hotel of the presence of fire therein. (x) In placing mattresses, readily inflammable and combustible in the hallways and corridors of said hotel. (z) In maintaining and operating said hotel when the same, by reason of each and all of the acts of want of due caution and circumspection as aforestated, constituted a menacing fire trap endangering the lives of the guests thereof. (a-1) Accused failed to notify the fire department of the City of Atlanta, Georgia, of the existence of said fire in said hotel until after the expiration of twenty-five minutes after said fire originated, and said accused were negligent in failing to notify the said fire department."
Count 2 is identical with count 1 except that the former charges the death of a different person and alleges in subparagraph (t) thereof the 10th floor instead of the 15th floor.
The defendants interposed general and special demurrers to both counts of the indictment, demurring generally, upon the ground that the allegations therein did not charge the accused with any offense under the law, and under the allegations the accused are not guilty of any offense under the laws of Georgia; and specially as to each of the allegations of negligence, (a) through (a-1) except (q) and (z), in both counts, on the ground that each of the said allegations failed to show acts constituting wilful, wanton, or criminal negligence on behalf of the accused.
The accused further specially demurred to subparagraph (a-1) of both counts, on the ground that the said subparagraph nowhere alleges that the accused or any of them failed to notify the fire department of the City of Atlanta immediately upon learning of the existence of the fire, and does not allege how or in what manner the accused, or any of them, were negligent in failing to notify the said fire department, and does not allege how or in what manner the accused, or any of them, could have learned of the existence of the said fire prior to the time that the fire department of the City of Atlanta was notified of the existence thereof. Accused further demurred specially to the said subparagraph (a-1), on the ground that each and every allegation therein states merely conclusions of the pleader.
Upon hearing the general and special demurrers to the said indictment, the trial judge entered a judgment overruling the same on each and every ground. The defendants excepted and assigned the same as error, taking the case to the Court of Appeals by writ of error. That court, after consideration, rendered judgment as follows: "This case came before this court upon a writ of error from the Superior Court of Fulton County, and upon a record formally certified and transmitted by the clerk of that court. Upon consideration of the case by the Court of Appeals sitting as a body, the court was equally divided as to the judgment that should be rendered, Sutton, C. J., Gardner, and Parker, JJ., being for affirmance, and MacIntyre, P. J., Felton, and Townsend, JJ., being for reversal. It is therefore ordered that the case be transferred to the Supreme Court of Georgia, in compliance with the last subdivision of paragraph 8, section 2, article 6, of the amendment to the Constitution of the
State ratified in the election of August 7, 1945." Accordingly, the case, under the Constitution, comes to this court for decision.
The indictment charges in each count the killing of a human being without any intention to do so, but in the commission of "a lawful act, which probably might produce such a consequence, in an unlawful manner," as provided in the Code, § 26-1009. This same Code section defines a higher grade of involuntary manslaughter as a killing without any intention to do so, but "in the commission of an unlawful act." It is difficult to separate sharply an unlawful act from a lawful act done in an unlawful manner. This difficulty is made greater by the requirement of the Code, § 26-201, that to constitute a crime there must be "a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence." When we attempt to apply the involuntary-manslaughter Code section, we must consider in connection therewith the ordinary care sections, 105-201 and 105-401, and the misfortune or accident section 26-404, where it is provided that a person shall not be found guilty of any crime when there is "no evil design, or intention, or culpable neglect," together with the section which specifies the indispensable ingredients of a crime; and the task of fitting them together and unifying them into a plain, understandable declaration of the law is exceedingly difficult. It is further complicated by the expression, "without due caution and circumspection," which is found in the Code, § 26-1006, and the expression, "where there has not been observed necessary discretion and caution," contained in the Code, § 26-1010.
Many acts of negligence may, in a sense, be unlawful and actionable without any intent to commit a crime or even an intent to do an act which results in a crime or without involving criminal negligence. We may put aside as not constituting crime all careless performance of lawful acts that would not authorize a recovery of damages in a civil suit. We can likewise eliminate
all negligence that would merely authorize a recovery of damages in a civil suit, for the law is that negligence which is sufficient to constitute a crime is something more than that degree of negligence necessary to authorize recovery in a suit for damages. Cain v. State, 55 Ga. App. 376
(190 S.E. 371); Croker v. State, 57 Ga. App. 895 (4-a) (197 S.E. 92); Collins v. State, 66 Ga. App. 325 (3) (18 S.E.2d 24). While the courts have thus recognized the difference, we have not found where the degree of this difference has been reduced to a plain statement or definition. Negligence is a general term that will embrace all manner of degrees of carelessness, but criminal negligence causes the word negligence" to take on an aggravated meaning.
In Pool v. State, 87 Ga. 526 (8) (13 S.E. 556), it was held that, though the accused had a pistol at a church in violation of the law, and though he handled it negligently and discharged it intentionally, thereby committing accidental homicide, yet this would not necessarily be murder; that it would be murder if the shooting was reckless, but would be involuntary manslaughter if it was only a negligent shooting. There the instrument was dangerous, and the recklessness in handling it, knowing that a person might be shot, would imply malice and intent. In Cook v. State, 93 Ga. 200 (18 S.E. 823), a charge of the trial court to the effect that, where one shoots another with no regard for the consequences, recklessly and carelessly, such as shooting into a crowd, not caring if he killed one, it would be murder, was approved by this court. InAustin v. State, 110 Ga. 740 (36 S.E. 52), this court recognized that a shooting in such circumstances, that is, where there was a reckless disregard for human life, would constitute murder, but it was there held that, where death results to one from the discharge of a gun in the hands of another, and "there was no intention to kill nor an intention to discharge the gun, the person in whose hands the gun was held would not be guilty of murder, although the gun may have been handled in a careless and negligent, even reckless, manner. In such a case the slayer would be guilty of involuntary manslaughter only." It is thought needful to here take note of the three cases just considered. The quoted portion from the last case cited clarifies what was meant in the other two cases in referring to the reckless discharge of a gun in a manner that would amount
to murder. It is the overt act of intentionally shooting in a reckless manner which renders the offender guilty of murder. If the instrument is merely handled in a reckless manner with no intention to shoot, and death results, it would be involuntary manslaughter. We quoted from Austin v. State, supra, in order to show that this court has defined negligence, carelessness, and recklessness under the involuntary-manslaughter statute to mean the same thing. It may, therefore, be correctly said that the negligence necessary under that statute to constitute a crime is the equivalent of and, in fact, is recklessness. Perhaps it would be plainer if the word "recklessness" could be substituted here for negligence. The word "reckless" is defined in Webster's New International Dictionary (2d. Ed.) as "careless, neglectful, indifferent, inconsiderate; as utterly reckless of danger." Criminal negligence must be such as shows an indifference to the injurious results of the negligent acts. It must be inconsiderate of others. In order for one to be held to have been indifferent to the safety of others or inconsiderate of their welfare, it must appear that he knew, or that an ordinarily prudent person under similar circumstances would have known, that his act might probably endanger others. It seems obvious that, for an act thus to appear dangerous, there must of necessity be some commonly recognized danger inherent in such act. The instrumentality in connection with which there is negligence must be of a kind that is dangerous because of the manner in which it is handled. Of course, there was no difficulty in finding this essential criminal ingredient in the following cases where inherently dangerous instrumentalities were carelessly handled: Pool v.State, supra, pistol; Austin v. State, supra, gun;Flannigan v. State, 136 Ga. 132 (70 S.E. 1107), knife;McDonald v. State, 152 Ga. 223 (109 S.E. 656), automobile. There it was necessary only to allege and prove negligent handling of the dangerous instrumentalities under circumstances which threatened the safety of others. But here we have a materially different situation. There is not a single instrumentality mentioned in this indictment that an ordinarily prudent person would recognize or consider as being inherently dangerous. There is not a single specified act of negligence that is prohibited by the State law. There is no
State law imposing a duty to act where these defendants are alleged to have negligently failed to act. Upon the trial of a criminal case, a verdict of guilty is authorized if there is evidence to prove the allegations of the indictment. On the application of this legal principle, if this indictment is sustained as against the demurrer then conviction would be authorized if the State proves the allegations of the indictment and no more. "The State would not be required to do more than prove by evidence the essential allegations of the indictment."Passley v. State, 194 Ga. 327, 331 (21 S.E.2d 230). This would mean that, despite the fact that all of the hotels in this State might have been operated in the same condition and manner as the Winecoff Hotel and were all regarded by hotel people and others as being safe, yet these defendants must suffer conviction for criminal negligence. It is, therefore, the duty of the court to say, by ruling on the demurrer to this indictment, whether or not the alleged negligence was criminal. Then the function of the jury is to decide the questions of fact made by the evidence. Of course, if, because of special knowledge and information, these defendants knew of dangers which an ordinarily prudent person would not have recognized as dangers, they would be responsible and might be held criminally liable. However, the indictment does not charge that they had such knowledge or were chargeable with such knowledge, and if the indictment is sustained against the demurrers, then conviction could be upheld without proof of such special knowledge. The noble purpose of the law in penalizing criminal negligence is not upheld by convicting one as a criminal upon a charge of negligence that does not contain the essential ingredient of criminal negligence.
The State leans heavily upon Commonwealth v. Welansky,316 Mass. 383 (55 N.E.2d 902). That case is so dissimilar on its facts that it has no application here. There highly inflammable decorations were used, and the fire originated by an act of a sixteen-year-old employee of the defendant in striking a match so close to such decorations that they were ignited and the fire followed. There the hall was equipped with doors marked as emergency exists and so constructed as to cause them to open when pressure was exerted from the inside. These doors had been locked and could not be opened, and many persons died
while seeking to escape through them. We have no similar facts here. The origin of the fire in the instant case is unknown. Certainly the defendants are not charged with having originated the fire. The indictment does not allege facts showing criminal negligence, and therefore fails to allege a crime, and the court erred in overruling the general demurrer thereto.
Judgment reversed. All the Justices concur, except Atkinson,J., disqualified, and Wyatt, J., who took no part in theconsideration or decision of this case.