You'll find yourself face to face with the slippery problem of criminal negligence if you ever have anything to do with either of two charges-involuntary manslaughter or carelessly endangering the lives of others.

The CMO's reviewed by the author show that three classes of people in the naval service have missed the point in attempting to ascertain what criminal negligence is: convening authorities, court-martial members, and judge advocates.

You may consider yourself an unusual person indeed if you don't find your understanding of criminal negligence measurably enlarged by the reading of this article.

A FATAL AUTOMOBILE ACCIDENT has

occurred on your station. A life has been lost the life of a person in the naval service. There has been an official investigation, and you are now a member of a court-martial charged with the duty to try the accused, the operator of the vehicle responsible for the accident. He is charged with involuntary manslaughter.

What rules of law are applied in such a case? What must the evidence show in order to sustain a conviction of involuntary manslaughter? Section 119 of Naval Courts and Boards tells you that involuntary manslaughter is the "unlawful killing of a human being without malice . . . [in] the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." There is, of course, more here than meets the eye on first reading, especially when you consider the import of the words "without due caution and circumspection." This will be apparent to you if you are at all familiar with CMO's dealing with involuntary manslaughter-or carelessly (or negligently) endangering the lives of others, a charge that requires substantially the same type and degree of proof as involuntary manslaughter, as will later be shown. These CMO's, some of which will be discussed in detail in this article. indicate that convening authorities frequently

base the charges in question upon facts insufficient to support convictions. The insufficiency in most of these cases centers about a failure to prove that the accused acted "without due caution and circumspection" or to put it affirmatively, there were not enough facts pleaded or proved to establish that the persons accused acted with such degrees of negligence as would establish the alleged criminality of their acts.

The approach to the problem

An excellent approach to the whole problem of negligence is to review the system of rights and obligations that is the law under which we live. The right to be safe from physical violence or robbery carries with it a corresponding duty not to do violence to others in the community, nor to rob them. The right to own a weapon carries with it a corresponding duty to use it only for such lawful objects as hunting wild game or protecting the home. And in modern times, the right to own an automobile carries with it the duty of operating it so as not to injure the person or property of a fellow man. It is when the exercise of the right is coupled with a criminally negligent disregard of the accompanying duty, and death or danger to life results, that convictions of involuntary manslaughter or carelessly endangering the lives of others are in order. This assumes, of course, that the criminal negligence was the proximate cause of the death or the endangering of life-that the one or the other occurred as a direct, immediate, and natural consequence of the criminally negligent disregard of duty (CMO 3, 1946, 92).

The negligence to which criminality attaches must obviously be something more than "ordinary" negligence, which is usually defined as a failure to exercise reasonable care under given circumstances-"reasonable care" being the degree of care that the ordinary, prudent man would exercise when acting in the same or similar circumstances. Typical of ordinary negligence are such acts as neglecting to have one's car under such control at all times as to be able to comply with all traffic and safety requirements, or the failure to look both ways before crossing a street.

The negligence that is criminal is labeled by most courts as "gross" or "culpable" negligence. Gross negligence may be defined as an utter indifference to the consequences of one's actions, a total abandonment of the standard of reasonable care coupled with a wanton disregard for the safety of others. It is more than mere inattention or sloppy conduct, and may well be characterized by a driver who speeds into a heavily traveled area on a dark and wet night where there are probably pedestrians, well knowing, but not caring, that he has not the proper control of his vehicle.

For those who must apply the law, “book” definitions in and of themselves are usually not sufficient. Most assuredly, book definitions of negligence cannot be fitted into a satisfactory pattern of application by naval officers with limited or no legal experience. In this connection, the situations described and adjudicated in CMO's are most pertinent and helpful, so summation at this point of several CMO's should help establish the distinction between ordinary and gross negligence. The cases involving automobile accidents, for example, buttress the contention that gross negligence can only be predicated on conduct so outrageous that it is just short of intențional. Striking a not-so-innocent pedestrian

A specification in a general court-martial case of the early 1930's (CMO 12, 1931, 17) alleged grossly negligent operation of a motor vehicle as the cause for the striking of a naval officer, and the endangering of his life. A finding of guilty on the specification was set aside because the prosecution failed to make out a prima facie showing of the gross negligence that had been alleged. The evidence established that the accused's car struck the officer, but it also appeared that this officer and the two others were walking three abreast in the street, taking up one-quarter of its width, alongside a line of parked cars. The victim of the accident was closest to the center of the street. "There was no evidence as to the speed of the car, condition of lights of car, or of highway, competency of driver, condition of roadbed or brakes of car, or other matter tending to show wherein the gross or culpable negligence of the accused lay."

Gross negligence in this case was classified as being "more serious than ordinary negligence (want of due care) but less serious than intentional wrongdoing." It was pointed out that gross

negligence is commonly defined as a "wanton, careless, and reckless disregard of the rights and safety of others."

Was the judge advocate negligent?

A CMO came into being some 5 years ago (CMO 7,1945,322) because a judge advocate in his closing argument, in a case where the charge was negligently endangering the lives of others, instructed the court as follows:

"Counsel has referred to willful and reckless disregard for the safety of others. He is talking about gross negligence and that is something different from ordinary negligence. It is not mentioned in section 97, Naval Courts and Boards, which simply provides for the charge of carelessly or negligently endangering the lives of others. . . . "It is not necessary to support the . . . charge that the accused be found guilty of a wanton, careless, and reckless disregard; it is sufficient if he be found guilty of negligently operating his automobile in such a manner as to endanger the lives of others, namely the occupants of the other car." The Judge Advocate General ruled that the above statements were erroneous. He expressly held that the "degree of negligence or carelessness required to support criminal liability of the offense alleged under the charge of 'negligently endangering the lives of others' must be gross and culpable, the same as is required to support criminal liability in the case of 'involuntary manslaughter' (NC&B, secs. 119, 153; Naval Digest, 1916, 'Intent' par. 12, p. 292; CMO 1, 1944, 126)." Falling asleep at the wheel

A typical case involving the charge of involuntary manslaughter occurred in 1945 (CMO 3, 1945. 112). The accused was shown by the evidence to be the regularly detailed driver of a 1-ton reconnaissance truck. On the day of the accident. he was awakened at 0600 and was ordered to transport food in his truck from Quantico, Va., to an artillery unit that was encamped some 24 miles away. He made three round trips between Quantico and the unit during the day. At about 2245 the accused, accompanied by the deceased and one other passenger, was completing his fourth round trip by proceeding toward Quantico at a speed of approximately 35 to 40 miles an hour. He momentarily fell asleep at the wheel. The truck left the highway at a turn in the road and was wrecked-one passenger was killed.

The criminal liability of the accused, if any, had

to be predicated on the prosecution's case that the gross and culpable negligence attributed to the accused consisted in one of two facts, or both: First, driving the truck at a speed that was not only excessive for safe driving at the time, but that also exceeded the speed limit. Second, falling asleep while driving the truck under the circumstances outlined above.

By a duly promulgated post regulation a speed of 25 miles per hour had been established as maximum for the road on which this accident occurred. A Virginia statute established the State speed limit for this road at 35 miles per hour. In considering the violation of a speed limit, section 119 of Naval Courts and Boards states that for involuntary manslaughter to be constituted in the commission of an unlawful act, the act must be malum in se, not merely malum prohibitum. In other words, the act must be inherently wrong in itself and not one merely declared wrong by statute or local order. "Driving an automobile slightly in excess of the established speed limit is malum prohibitum and not malum in se. Moreover, a judgment of conviction for criminal negligence cannot be maintained upon proof of speed alone. The proof of speed must be of such character which together with other circumstances shows a reckless disregard by the accused of the consequences of his conduct, and his indifference to the rights of others (CMO 1, 1944, 126-131)."

A 1941 Florida decision was discussed by the Judge Advocate General in considering the issue of the falling asleep of the accused at the wheel. In that decision, Johnson v. State (4 So. 2d, 671), an accused was convicted of involuntary manslaughter where he fell asleep at the wheel of a truck, and death resulted to a passenger-but the decision was distinguished from the case at bar. In the Johnson case, the accused had once before fallen asleep when he stopped to get some beer. After this incident, he continued the journey when he knew that he was in a dangerously sleepy condition, and fell asleep again, at which time the accident occurred. The Florida court held that the accused was criminally negligent to continue the journey when he knew that he was in no condition to drive the truck, and that by so doing he would be endangering the lives of others. In our case, the accused was, without warning, taken with sleep after a long day of duty driving.

The difference between the two cases is a very real one, and it could not be said that the accused

in our case, who had no premonitory warnings of sleep, was guilty of gross negligence. Since the high degree of negligence that is necessary to affix criminal liability was lacking, the conviction was set aside.

Liquor and speed

Another automobile case, decided in 1946 (CMO 11, 1946, 362) is of interest because the problems of liquor and speed entered into an accident that resulted in the death of a passenger. The evidence showed that the deceased was one of five passengers in an automobile being driven by the accused along a paved three-lane highway. Immediately before the accident the automobile was traveling at a speed variously estimated by witnesses as being from 30 to 50 miles per hour, and had just passed a car traveling in the same direction. The accused was not familiar with the road on which he was traveling. He failed to negotiate a curve, the car hit a tree, and as a result, the passenger was killed. Although the accused had consumed five bottles of beer within 6 hours during the evening prior to the accident (which occurred shortly after midnight), he was apparently sober when the car left the road. It was held that the "speed at which the accused was traveling immediately prior to the accident did not appear, from the evidence adduced, to have been reckless or wanton so as to show an utter disregard for the safety of others under circumstances likely to cause injury.”

Watching a civilian woman

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A good example of how a specification under a charge of carelessly endangering the lives of others can come close to alleging the offense charged, and yet fail, appeared in a CMO that was published in 1947 (CMO 3, 1947, 47). After stating the proper jurisdictional facts, it alleged that the accused, while operating a truck, said truck . . . having two passengers therein, and it being his duty to operate said truck with due caution and circumspection, did . . . neglect and fail to operate said truck with due caution and circumspection in that he, the said (accused), while watching a civilian woman, by name to the relator unknown, did cause said truck to strike a tree, and did, thereby, then and there, endanger the lives of the passengers in said truck." The accused was convicted.

The Judge Advocate General held the specification to be defective because the mere allegation

that the truck struck a tree while the accused was watching a civilian woman is, standing alone, insufficient to establish the offense of carelessly endangering the lives of others. The location of the woman at the time of the accident was allimportant-if she had been in the road, for example, it would have been the duty of the accused to avoid striking her even though such action meant striking the tree. And if the speed of the truck had been a contributing factor to the of fense, that, too, should have been alleged.

In this case it so happened that counsel for the accused failed to object to the specification. It was ruled, however, that "since it contained sufficient information fairly to apprise the accused of the offense intended to be charged, the findings of the court cured the defect provided that the evidence adduced supplied the omissions (NC&B, sec. 39, 40)." This the evidence failed to do because the relative position of the woman was never established-there was no proof that the accused in looking at the woman could not have been keeping an eye on the road and the progress of his truck at the same time.

There was some evidence tending to show that a local order with respect to speed had been violated, but it was insufficient to establish the offense charged. In this connection, the Judge Advocate General made a clear reiteration of the rule regarding speed: "Assuming the accused did violate the local speed law, conviction for criminal negligence could not be maintained on proof of this violation alone unless the speed, together with other circumstances, was the proximate cause of the act complained of, and was of such character as to show a reckless disregard by the accused of the consequences of his conduct and his indifference to the rights of others. . . . The evidence showed that the speed of the truck . . . was not reckless or wanton and at most malum prohibitum (evidence of simple negligence) rather than malum in se. . . ."

The defective specification, not being cured by the evidence, was held as a matter of law to be insufficient to support the conviction.

Discharge of pistol in barracks

CMO's involving accidental firing of small arms tell the same story as the automobile cases just discussed.

In one (CMO 4, 1946, 137), an accused was with several other persons in a barracks room. He took a pistol in his hand, which he pointed toward the

floor, pulled the slide back and held it "roughly horizontal level with the floor." The pistol discharged and killed one of those present. The accused was convicted of involuntary manslaughter.

The evidence showed that prior to the fatality, the accused had handled the pistol, examined it and had shown it to others. It was held that there was no evidence as to specific acts or omissions amounting to failure to exercise due caution and circumspection. Witnesses testified the accused did not handle the pistol negligently. It was shown that it was customary, and not in violation of any local order, to bring weapons into the living quarters, without restriction as to their being loaded or unloaded.

"[It] could not be said that the act of the accused, in picking up a loaded pistol within the barracks room, to inspect it preparatory to submitting it to another for examination, alone was legally sufficient to constitute lack of 'due caution and circumspection'. . . ." Since there was no showing of gross or culpable negligence, it was held that the death was "homicide by misadventure" rather than involuntary manslaughter, and the conviction was set aside.

Where one acquittal requires another

A small arms case that was set aside in 1945 (CMO 7, 1945, 294) involved some of the principles that we have already discussed in connection with the automobile cases. The accused was charged with both involuntary manslaughter and carelessly endangering the lives of others. The court acquitted him of the manslaughter charge but convicted him of the carelessly endangering charge. The evidence showed that both of the charges were based on the same facts. The accused had a carbine in his possession that he had not ascertained to be unloaded. It discharged while it was in his hands and a man was killed.

The Judge Advocate General held that "The degree of negligence or carelessness required to support criminal liability of the offense alleged under the charge of 'Carelessly endangering the lives of others' must be gross and culpable—the same as is required to support criminal liability in the case of 'Involuntary manslaughter'. . . .“ Since the court by its acquittal on the manslaughter charge found the requisite degree of negligence lacking, and since the same facts were involved in the endangering charge, it followed that the degree of negligence necessary to convict (Continued on page 15)

Uniform Code-Article 43

If you've been making a list of Code provisions that are really new and different for naval law, then you should check to make sure you've included Article 43.

As the author of this article points out, "Briefly, the substantial changes include, as to certain offenses, the applicability of the statute, the date it begins to run, the length of the running and the suspension of the running. The manner of tolling the statute is different for all offenses."

ARTICLE

RTICLE 43 of the Uniform Code of Military Justice is a brand new addition to a long line of legislative enactments that are almost universally called "statutes of limitations." Such statutes were first enacted in England for the purpose of compelling the plaintiff in a civil action to choose between bringing his suit within a specified period of time, or losing forever his right to sue. It had become common practice for a plaintiff with a legally enforceable claim to keep it under cover and out of court until the defendant had destroyed or lost the evidence in his favor, such as vouchers or receipts, or until witnesses who could have testified in behalf of the defense had left the jurisdiction or died. Without such evidence or witnesses, the defendant, of course, found himself in a highly vulnerable position. So, to protect the unwary and the unfortunate, and to free the courts from a clutter of stale claims, statutes of limitations were created. Claims over a certain age were no longer enforceable in the courts.

In time, similar statutes of limitations were enacted to achieve similar ends in the field of criminal law. Article 43 of the Code is a modern descendant of this type of statute-it, like its forebears, amounts to a surrender by the government of its sovereign right to punish for the commission of certain offenses under its laws once a specified period of time has elapsed subsequent to the date of the offense.

The purpose of this article is to discuss in detail the provisions of article 43, and to point out how it differs from its immediate predecessors, the currently effective articles 61 and 62 of Articles for the Government of the Navy. Before this is undertaken, however, it would be well to explain the meaning of two terms that you have to use when talking about a statute of limitations: "run" and "toll."

A statute is said to run, or accrue to the benefit of the person it seeks to protect, only so long as that person is, consciously or unconsciously, situated or acting in accordance with its provisions. For example, the statute may provide that it runs in favor of the person only so long as he is within. the continental limits of the United States. If so, the running stops, or more properly, is suspended, so long as the person is outside the continental limits. The running resumes-picks up where it left off-upon his return.

The tolling of the statute amounts to more than a mere suspension of its running. To toll the statute means to stop its running entirely. Tolling is usually accomplished by some affirmative act on the part of the Government, such as indicting the person in whose favor the statute has been running.

One further point-the defense of the statute of limitations is personal to an accused. That is, he and only he is entitled to raise it on his behalf. Because of this, the statute, like all other personal defenses, may be waived by an accused if he so desires.

The statute of limitations that presently affects offenses triable by naval tribunals is contained in articles 61 and 62 of AGN. Article 61 sets up a 2-year limitation period that begins to run on the date the offense is committed. Article 62 states an exception to the date the period starts to run in the case of the offense of desertion in time of peace-with this offense, the period begins to run at the end of the accused's term of enlistment. These articles further provide for the suspension of the running of the statute under certain