Summary
In Delay v. Brainard, 182 Neb. 509, 156 N.W.2d 14, 19 (1968), a woman left her children, ages three and a half, one and a half and six months, at home alone while she went out with her boyfriend.
Summary of this case from State v. DavisOpinion
No. 36594.
Filed January 26, 1968.
1. Criminal Law. A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of our Constitution. 2. ___. The purpose of a preliminary hearing is to ascertain whether or not a crime has been committed and whether or not there is probable cause to believe the accused committed it. 3. Criminal Law: Habeas Corpus. In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at the preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but only inquire as to the existence of evidence to sustain the charge. 4. Criminal Law: Evidence. Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial. 5. ___: ___. In the reception of evidence a committing magistrate is not strictly governed by technical rules applicable on a final trial. 6. Criminal Law: Negligence. The negligence on which a charge of involuntary manslaughter is predicated may be the omission of an act which it is the person's duty to perform. 7. ___: ___. For a parent having special charge of an infant child to so culpably neglect it that death ensues as a consequence of such neglect is manslaughter, although death or grievous bodily harm were not intended. 8. ___: ___. Culpable neglect in omitting to perform a legal duty will sustain a manslaughter conviction.
Appeal from the district court for Dodge County: ROBERT L. FLORY, Judge. Reversed and remanded with directions.
Richard L. Kuhlman, for appellant.
Harry E. Stevens, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
Relator, who was charged with the crime of manslaughter, was granted a writ of habeas corpus against the respondent, the sheriff of Dodge County, Nebraska, who prosecutes this appeal.
Relator contended the evidence introduced at the preliminary hearing before a justice of the peace was insufficient to show that a crime was committed, and further there was no probable cause to believe she committed the offense.
On March 24, 1966, a fire broke out at the home of the relator in Fremont, Nebraska. The alarm was turned in at 9:45 a.m. The fire department arrived within 10 minutes thereafter. The firemen broke into the house and removed three children, aged 3 1/2 years, 1 1/2 years, and 6 months, who were alone in the house. Relator, their mother, was gone, and the door was locked on the outside with a hook and eye fastener to keep the children inside. The 6-month-old baby was found dead in its crib, with severe burns over 80 percent of its body. The autopsy report indicates that the baby was alive and well before the fire. The other two children were hospitalized.
Relator was located by a social worker who telephoned a downtown bar where relator said she was having a bottle of pop. Relator had been leaving the children alone during the early part of the morning for several weeks before the fire. She put the hook on the outside of the door after a social worker had found the children outside the house on a previous occasion. Relator told an investigator that she was waiting at the bar for a cab she had called to return home. The call for a cab was verified. Subsequently relator admitted that she had been at the apartment of a bartender she had been seeing for sometime, and that she had gone to the bar to call the cab. After she was located at the bar she did not wait for the cab but went directly to the police station where she arrived at 10:30 a.m.
The district court found the evidence insufficient to establish the crime of manslaughter, determined that relator's statements and admissions secured during the investigative, process were inadmissible at the preliminary hearing, and granted the writ. We first address ourselves to the last point.
A preliminary hearing did not exist at common law. In this jurisdiction it is provided for by statute. Its functional purpose is stated in section 29-506, R.R.S. 1943. A preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of our Constitution. See Roberts v. State, 145 Neb. 658, 17 N.W.2d 666.
We have repeatedly held that a preliminary hearing is in no sense a trial of the person charged in regard to his guilt or innocence. Its purpose is to ascertain whether or not a crime has been committed, and whether or not there is probable cause to believe the accused committed it. Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240. The effect of the foregoing, if found to exist, is to hold the accused for trial in district court, which has jurisdiction to try him. See Dobrusky v. State, 140 Neb. 360, 299 N.W. 539.
In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at the preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but only inquire as to the existence of evidence to sustain the charge. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254.
Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial. Rhea v. State, 61 Neb. 15, 84 N.W. 414.
The rule that the accused is entitled to the benefit of any doubt does not apply in preliminary examinations. The test if not whether guilt is established beyond a reasonable doubt but whether evidence worthy of consideration in any aspect for a judicial mind to act upon renders the charge against the accused within reasonable probabilities. Circumstantial evidence may be sufficient basis to bind the accused over to the district court. See 21 Am. Jur. 2d, Criminal Law, 449, p. 451. In the reception of evidence a committing magistrate is not strictly governed by technical rules applicable on a final trial. Harmer v. State, 121 Neb. 731, 238 N.W. 356. We have held voluntary confessions with slight corroborative evidence sufficient for purposes of a preliminary hearing. Cotner v. Solomon, 163 Neb. 619, 80 N.W.2d 587. To change this rule when we require prompt preliminary hearings would tend to make the preliminary hearing a trial and could seriously impede criminal prosecutions. As we view the record for purposes of a preliminary hearing, there is sufficient evidence to find that there is probable cause to believe the relator committed a crime if a crime was committed.
This raises the question then whether or not, assuming the evidence to be true, it constitutes a crime. Section 28-403, R.R.S. 1943, provides: "Whoever shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, shall be deemed guilty of manslaughter; and upon conviction thereof shall be imprisoned in the Nebraska Penal and Correctional Complex not more than ten years nor less than one year."
Section 38-116, R.R.S. 1943, provides: "It shall be unlawful, and it is hereby declared to be cruelty for any person employing or having the care, custody or control of any child, willfully or negligently to cause or permit the life of such child to be endangered, or the health of such child to be injured, or willfully to cause or permit such child to be placed in such a situation that its life or health may be endangered, or to cause or permit such child to be overworked, cruelly beaten, tortured, tormented or mutilated."
Relator was in violation of a positive statute, section 38-116, R.R.S. 1943, when she locked her 3 children under 4 years of age in the house and took off on her own pleasure. Her husband left the home before 7 a.m. She got up shortly thereafter and drank some coffee. There is no evidence as to the exact time she left home, but she walked downtown and spent some time in her paramour's apartment. Relator did state she usually went downtown about 9 a.m. She would get back in time, to get lunch for her husband who came home at noon. In any event, she was unavailable from before 9 a.m. until she was located at the bar about 10:25 a.m. The fire alarm was turned in at 9:45 a.m. It must be conceded that the children were incapable of taking care of themselves. Relator was courting trouble. The law holds one so situated that his act may endanger the life of another to a high degree of caution, and he may be criminally responsible for loss of life consequent on his failure to exercise a proper degree of caution. When we apply the test of the reasonable man, we are forced to the conclusion that relator was deliberately jeopardizing the lives and safety of the children. She had a legal duty to see that they were protected, but left them unattended for long periods of time. Such neglect is criminal in its character and where it results in death will sustain a conviction for manslaughter. The negligence on which a charge of involuntary manslaughter is predicated may be the omission of an act which it is a person's duty to perform. 1 Wharton's Criminal Law and Procedure, 296, p. 621.
In Stehr v. State, 92 Neb. 755, 139 N.W. 676, 45 L. R. A. N. S. 559, Ann. Cas. 1914A 573, We said: "For a parent having special charge of an infant child to so culpably neglect it that death ensues as; a consequence of such neglect is manslaughter, although death or grievous bodily harm were not intended." That case involved neglect to seek medical aid for a stepson who had frozen his feet.
The degree of negligence which will make one criminally responsible for a neglect of duty is difficult to define. Obviously, it is not any slight breach of duty but rather a gross failure to do what is required of one. On the record herein, we cannot say as a matter of law relator could not be guilty of manslaughter. Culpable neglect in omitting to perform a legal duty will sustain a manslaughter conviction. Relator had a legal duty to protect the children. She deliberately locked them in the house alone while she went off to pursue her own pleasures. As a result, one of them was burned to death. It is for a jury to determine whether the conduct of relator crosses the line where her breach of duty renders her criminally negligent.
For the reasons given, we reverse the judgment of the trial court and remand the cause with directions to return relator to the custody of respondent to stand trial.
REVERSED AND REMANDED WITH DIRECTIONS.