Opinion
No. 5407.
Argued November 4, 1965.
Decided December 30, 1965.
1. Indictments charging the respondent with second-degree manslaughter (RSA 585:9) and alleging that the respondent was culpably negligent in creating a dangerous obstruction to motor traffic by leaving his unlighted motor vehicle in the highway in the nighttime without flares or warning devices as a result of which a passenger in another vehicle that collided therewith was killed adequately charged the respondent with culpable negligence and informed him of the nature and cause of the accusations with sufficient definiteness so that he can prepare for trial, hence the indictments were held sufficient.
2. Culpable negligence in criminal law means something more than negligence sufficient as a basis for the recovery of damages in a civil action and involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
The defendant's exception to the denial of his motion to dismiss two indictments for second-degree manslaughter was reserved and transferred by Leahy, C.J.
The indictments were identical except for the designation of the person killed. The pertinent part of one indictment reads as follows:
"did operate a certain motor vehicle on a public highway in said Portsmouth, known as the Route #1 By-pass, so-called, and did then and there have said motor vehicle in his possession and in his control, and that while then and there so operating the said William S. Strescino was under a duty to operate and control said motor vehicle with proper care and with due regard for the safety of others on said highway, and that wholly regardless of said duty the said William S. Strescino was culpably negligent in that he did bring said motor vehicle to a stop on said highway, and that said motor vehicle in said parked position created a dangerous obstruction to other motor vehicles using said highway in that it did project into the Northbound lane thereof, and, although it was nighttime and dark and unlighted at said point, he failed to place any flares or other warning devices as a warning to others using said highway and did leave said motor vehicle in said position, and as a result of said acts by said William S. Strescino a motor vehicle operated by one Stephen D. Bossie, Sr., of said Portsmouth was caused to collide with the parked motor vehicle aforesaid, which said collision resulted in the death of Stephen D. Bossie, Jr., a passenger in the motor vehicle operated by said Stephen D. Bossie, Sr."
William Maynard, Attorney General, Peter W. Smith, Attorney and Alvin E. Taylor, county attorney (Mr. Smith orally), for the State.
Shaines Brown and Fred J. Madrigan (Mr. Madrigan orally), for the defendant.
As stated by the defendant the "issue in this case is whether or not the two indictments . . . against the defendant, founded upon RSA 585:9, charging him with . . . second degree manslaughter, punishable under RSA 585:11, are sufficient as a matter of law." The second-degree manslaughter statute (RSA 585:9) reads as follows: "Every killing of one human being by the act, procurement, or culpable negligence of another, which is not murder, nor excusable nor justifiable homicide, nor manslaughter of the first degree, is manslaughter of the second degree."
"Culpable negligence" as used in the manslaughter law is not defined therein or by any other statute. The definitions of "culpable negligence" have been many and varied in other jurisdictions. Annot. 161 A.L.R. 10. This phrase in its criminal context has escaped definition in our cases (Glover v. Baker, 76 N.H. 393, 424) and was expressly left undecided in State v. Karvelos, 80 N.H. 528. Riesenfeld, Negligent Homicide — A Study in Statutory Interpretation, 25 Calif. L. Rev. 1, 16, 39 (1936). Although there are some cases to the contrary, it is the general rule that culpable negligence as used in manslaughter statutes means something more than negligence sufficient as a basis for the recovery of damages in a civil action. Moreland, The Law of Homicide 104-123 (1952); Perkins, Criminal Law 60, 61 (1957). In the manslaughter statute, as in the statute prohibiting reckless driving (RSA 262:15 (supp); RSA 262-A:61 (supp)), "Something more than mere negligence is required however." State v. Soucy, 97 N.H. 233, 234. 3 Wharton, Criminal Law and Procedure, s. 972 (1957). See also, Comment, pp. 49-55 in Model Penal Code, s. 201.4 (Tent. Draft No. 9, 1959).
The time has come to give the phrase "culpable negligence" some concrete meaning in our statute even though any definition is difficult and runs the risk of defining culpability in terms of culpability. The definition of "negligently" in the Model Penal Code, s. 2.02(2)(d) (Proposed Official Draft, p. 26 (1962)) provides a standard. "Negligently" is defined therein as follows: "A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." (Emphasis supplied). See also, Model Penal Code, s. 2.02(2)(d) (Tent. Draft No. 4, 1955) and Comment thereunder, pp. 126-127. A person charged with culpable negligence may not be convicted on evidence which establishes only ordinary negligence but may be convicted on evidence of acts which are done negligently as defined above. See Perkins, Criminal Law 61 (1957).
The test to determine the sufficiency of an indictment which will satisfy constitutional (N.H. Const., Pt. I, Art. 15th) and statutory (RSA 601:4) requirements was succinctly stated in State v. Rousten, 84 N.H. 140. "In the light of modern conditions any complaint or indictment should be considered adequate if it informs the defendant `of the nature and cause of the accusation with sufficient definiteness' so that he can prepare for trial." State v. Rousten, supra, 143; State v. Langelier, 95 N.H. 97, 99; State v. Hamson, 104 N.H. 526, 528. In the present case the defendant is not in doubt as to the offense with which he is charged. Cf. State v. Webster, 105 N.H. 415; Scott, Fairness in Accusation of Crime, 41 Minn. L. Rev. 509 (1957). However, he claims that the allegations in the indictment constitute "mere simple negligence" and are therefore insufficient as a matter of law. This overlooks the fact that the indictment charges the defendant with conduct that is "culpably negligent" and then describes the acts which are alleged to constitute the culpable negligence. This is sufficient. State v. Turgeon, 101 N.H. 300. "The defendant knows what issues he has to meet." State v. Langelier, 95 N.H. 97, 99.
Whether the defendant created a "dangerous obstruction" to motor traffic, why he left his motor vehicle in the highway "dark and unlighted" and for how long a period are matters to be proved at the trial. State v. Beauvais, 102 N.H. 276. As far as the indictment is concerned it alleges conduct which could be found to constitute culpable negligence by a court or a jury within the meaning of RSA 585:9.
Exception overruled.
All concurred.