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II.B. Actus Reus

Actus reus, or the act requirement, is the first part of culpability in criminal law. (You will meet the second part, mens rea, in the next section.) In short, almost every crime must have an act, but defining that act can be tricky. Sometimes something that seems like an act isn’t an act; other times, something that does not seem like an act is one.

These cases introduce you to the act requirement. Notice distinctions between voluntary and involuntary acts, and between conduct and the results of conduct. Consider why the court reaches the decision it does in each case, and what its decision says about its concept of blameworthiness.

  • 1 Martin v. State

    1
    17 So.2d 427
    2
    MARTIN
    3
    v.
    4
    STATE.
    5
    4 DIV. 805.
    6
    Court of Appeals of Alabama.
    7
    Jan. 18, 1944.
    8
    Rehearing Granted March 21, 1944.
    9

    Appeal from Circuit Court, Houston County; D. C. Halstead.

    10

    Cephus Martin was convicted of public drunkenness, and he appeals.

    11

    Reversed and rendered on rehearing.

    12

    W. Perry Calhoun, of Dothan, for appellant.

    13

    The original arrest being unlawful and without a warrant, the subsequent happenings by appellant should not be used against him to make out a Case of public drunkenness. If appellant’s acts were the result of compulsion and duress, this is a good defense. Browning v. State, ante, p. 137, 13 So.2d 54; Gassenheìmer v. State, 52 Ala. 313.

    14

    Wm. N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty. Gen., for the State.

    15

    It is no defense to the perpetration of a crime that facilities for its commission were purposely placed in the way. Nelson v. City Of Roanoke, Z4 Ala.App. 277, 135 So. 312. Compulsion which will excuse crime must be Present, imminent and impending and of Such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Such compulsion must have arisen without the fault or negligence of the person asserting it as a defense. 22 Criminal Law, page 99, 44; 16 CJ. 91; Moore v. State, 23 Ala. App. 432, 127 So. 796; Thomas v. State, 134 Ala. 126, 33 So.« 130; Browning v. State, ante, p. 137, 13 So.2d 54. Burden of proving defense of duress is upon accused. 22 C.]. S., Criminal Law, page 888, 575.

    16

    SIMPSON, Judge.

    17

    Appellant was convicted of being drunk on a public highway, and appeals. Officers of the law arrested him at his home and took him onto the highway, where he allegedly committed the proscribed acts, viz., manifested a drunken condition by using loud and profane language.

    18

    The pertinent provisions of our statute are: “Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, * * * and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined”, etc. Code 1940, Title 14, Section 120.

    19

    Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. Thomas v. State, 33 Ga. 134, 125 S.E. 778; Reddick v. State, 35 Ga. 256, 132 S.E. 645; Gunn v. State, 37 Ga. 333, 140 S.E. 524; 28 C.]. S., Drunkards, 14, p. 560.

    20

    Conviction of appellant was contrary to this announced principle and, in our view, erroneous. It appears that no legal conviction can be sustained under the evidence, so, consonant with the prevai1ing rule, the judgment of the trial court is reversed and one here rendered discharging appellant. Code 1940, Title 7, Section 260; Robison v. State, 30 Ala.App. 12, 200 So. 626; Atkins v. State, 27 Ala.App. 212, 169 So. 330.

    21

    Of consequence, our original opinion of affordance was likewise laid in error. It is therefore withdrawn.

    22

    Reversed and rendered.

  • 2 People v. Decina

    1
    2 N.Y.2d 133 (1956)
    2
    The People of the State of New York, Appellant-Respondent,
    v.
    Emil Decina, Respondent-Appellant.
    3

    Court of Appeals of the State of New York.

    4
    Argued October 4, 1956.
    5
    Decided November 29, 1956.
    6

     

    7

    John F. Dwyer, District Attorney (Leonard Finkelstein of counsel), for appellant-respondent.

    8

    Charles J. McDonough for respondent-appellant.

    9

    CONWAY, Ch. J., DYE and BURKE, JJ., concur with FROESSEL, J., DESMOND J., concurs in part and dissents in part in an opinion in which FULD and VAN VOORHIS, JJ., concur.

    10

    [135] FROESSEL, J.

    11

    At about 3:30 P.M. on March 14, 1955, a bright, sunny day, defendant was driving, alone in his car, in a northerly direction on Delaware Avenue in the city of Buffalo. The portion of Delaware Avenue here involved is 60 feet wide. At a point south of an overhead viaduct of the Erie Railroad, defendant's car swerved to the left, across the center line in the street, so that it was completely in the south lane, traveling 35 to 40 miles per hour.

    12

    It then veered sharply to the right, crossing Delaware Avenue and mounting the easterly curb at a point beneath the viaduct and continued thereafter at a speed estimated to have been about 50 or 60 miles per hour or more. During this latter swerve, a pedestrian testified that he saw defendant's hand above his head; another witness said he saw defendant's left arm bent over the wheel, and his right hand extended towards the right door.

    13

    A group of six schoolgirls were walking north on the easterly sidewalk of Delaware Avenue, two in front and four slightly in the rear, when defendant's car struck them from behind. One of the girls escaped injury by jumping against the wall of the viaduct. The bodies of the children struck were propelled northward onto the street and the lawn in front of a coal company, located to the north of the Erie viaduct on Delaware Avenue. Three of the children, 6 to 12 years old, were found dead on arrival by the medical examiner, and a fourth child, 7 years old, died in a hospital two days later as a result of injuries sustained in the accident.

    14

    After striking the children, defendant's car continued on the easterly sidewalk, and then swerved back onto Delaware Avenue once more. It continued in a northerly direction, passing under a second viaduct before it again veered to the right and remounted the easterly curb, striking and breaking a metal lamppost. With its horn blowing steadily — apparently because defendant was "stooped over" the steering wheel — the car proceeded on the sidewalk until it finally crashed through a 7¼-inch brick wall of a grocery store, injuring at least one customer and causing considerable property damage.

    15

    [136] When the car came to a halt in the store, with its horn still blowing, several fires had been ignited. Defendant was stooped over in the car and was "bobbing a little". To one witness he appeared dazed, to another unconscious, lying back with his hands off the wheel. Various people present shouted to defendant to turn off the ignition of his car, and "within a matter of seconds the horn stopped blowing and the car did shut off".

    16

    Defendant was pulled out of the car by a number of bystanders and laid down on the sidewalk. To a policeman who came on the scene shortly he appeared "injured, dazed"; another witness said that "he looked as though he was knocked out, and his arm seemed to be bleeding". An injured customer in the store, after receiving first aid, pressed defendant for an explanation of the accident and he told her: "I blacked out from the bridge".

    17

    When the police arrived, defendant attempted to rise, staggered and appeared dazed and unsteady. When informed that he was under arrest, and would have to accompany the police to the station house, he resisted and, when he tried to get away, was handcuffed. The foregoing evidence was adduced by the People, and is virtually undisputed — defendant did not take the stand nor did he produce any witnesses.

    18

    From the police station defendant was taken to the E. J. Meyer Memorial Hospital, a county institution, arriving at 5:30 P.M. The two policemen who brought defendant to the hospital instructed a police guard stationed there to guard defendant, and to allow no one to enter his room. A pink slip was brought to the hospital along with defendant, which read: "Buffalo Police Department, Inter-Departmental Correspondence. To Superintendent of Meyer Memorial Hospital, from Raymond J. Smith, Captain, Precinct 17. Subject, Re: One Emil A. Decina, 87 Sidney, CD-553284, date 3-14-55. Sir: We are forwarding one Emil A. Decina, age 33, of 87 Sidney Street, to your hospital for examination on the recommendation of District Attorney John Dwyer and Commissioner Joseph A. De Cillis. Mr. Decina was involved in a fatal accident at 2635 Delaware Avenue at 3:40 P.M. this date. There were three fatalities, and possibly four. A charge will be placed against Mr. Decina after the investigation has been completed."

    19

    On the evening of that day, after an interne had visited and treated defendant and given orders for therapy, Dr. Wechter, a [137] resident physician in the hospital and a member of its staff, came to his room. The guard remained, according to his own testimony, in the doorway of the room — according to Dr. Wechter, outside, 6 or 7 feet away. He observed both Dr. Wechter and defendant "on the bed", and he stated that he heard the entire conversation between them, although he did not testify as to its content.

    20

    Before Dr. Wechter saw defendant, shortly after the latter's admission on the floor, he had read the hospital admission record, and had either seen or had communicated to him the contents of the "pink slip". While he talked with defendant, another physician came in and left. After giving some additional brief testimony, but before he was permitted to relate a conversation he had with defendant which was contained in the hospital notes, defense counsel was permitted with some restriction to cross-examine the doctor. In the course of that cross-examination, the doctor testified as follows:

    21

    That he saw defendant in his professional capacity as a doctor but that he did not see him for purposes of treatment. However, it was shown that at a former trial at which the jury had disagreed, he stated that the information he obtained was pursuant to his duties as a physician; that the purpose of his examination was to diagnose defendant's condition; that he questioned the defendant for the purpose of treatment, among other things; that in the hospital they treat any patient that comes in.

    22

    He further testified at this trial that ordinarily the resident on the floor is in charge of the floor, and defendant was treated by more than one doctor; that he took the medical history. At the previous trial, when he was asked whether he represented the police and the district attorney, he replied: "I don't know. I just seen him as a patient coming into the hospital". He now stated that he saw defendant as part of his routine duties at the hospital; that he would say that defendant "was a patient"; that he was not retained as an expert by the district attorney or the Police Department, and was paid nothing to examine defendant; that his examination was solely in the course of his duties as a resident physician on the staff of the hospital, and that, whether or not he had a slip from the police, so long as that man was on his floor as a patient, he would have examined him.

    23

    He also stated he never told defendant that he had any pink [138] slip, or that he was examining him for the district attorney or the Police Department, or that defendant was under no duty to talk, or that anything he said might be used against him at a later trial. He further testified that he was a doctor at the hospital at which defendant was a patient; that he personally wrote items in the hospital record, after his conversations with defendant; that he saw defendant three times; that he was asked by the district attorney to submit a voucher for consideration by the comptroller's office, but that was not done until after the first trial. He also stated at this trial that the discharge summary was made out by him, and that of the four sheets of progress notes, at least the first two sheets were in his handwriting.

    24

    The direct examination was then continued, the doctor being permitted to state the conversation with defendant over objection and exception. He asked defendant how he felt and what had happened. Defendant, who still felt a little dizzy or blurry, said that as he was driving he noticed a jerking of his right hand, which warned him that he might develop a convulsion, and that as he tried to steer the car over to the curb he felt himself becoming unconscious, and he thought he had a convulsion. He was aware that children were in front of his car, but did not know whether he had struck them.

    25

    Defendant then proceeded to relate to Dr. Wechter his past medical history, namely, that at the age of 7 he was struck by an auto and suffered a marked loss of hearing. In 1946 he was treated in this same hospital for an illness during which he had some convulsions. Several burr holes were made in his skull and a brain abscess was drained. Following this operation defendant had no convulsions from 1946 through 1950. In 1950 he had four convulsions, caused by scar tissue on the brain. From 1950 to 1954 he experienced about 10 or 20 seizures a year, in which his right hand would jump although he remained fully conscious. In 1954, he had 4 or 5 generalized seizures with loss of consciousness, the last being in September, 1954, a few months before the accident. Thereafter he had more hospitalization, a spinal tap, consultation with a neurologist, and took medication daily to help prevent seizures.

    26

    On the basis of this medical history, Dr. Wechter made a diagnosis of Jacksonian epilepsy, and was of the opinion that defendant had a seizure at the time of the accident. Other members of the hospital staff performed blood tests and took [139] an electroencephalogram during defendant's three-day stay there. The testimony of Dr. Wechter is the only testimony before the trial court showing that defendant had epilepsy, suffered an attack at the time of the accident, and had knowledge of his susceptibility to such attacks.

    27

    Defendant was indicted and charged with violating section 1053-a of the Penal Law. Following his conviction, after a demurrer to the indictment was overruled, the Appellate Division, while holding that the demurrer was properly overruled, reversed on the law, the facts having been "examined" and found "sufficient". It granted a new trial upon the ground that the "transactions between the defendant and Dr. Wechter were between physician and patient for the purpose of treatment and that treatment was accomplished", and that evidence thereof should not have been admitted. From its determination both parties have appealed.

    28

    We turn first to the subject of defendant's cross appeal, namely, that his demurrer should have been sustained, since the indictment here does not charge a crime. The indictment states essentially that defendant, knowing "that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time", was culpably negligent "in that he consciously undertook to and did operate his Buick sedan on a public highway" (emphasis supplied) and "while so doing" suffered such an attack which caused said automobile "to travel at a fast and reckless rate of speed, jumping the curb and driving over the sidewalk" causing the death of 4 persons. In our opinion, this clearly states a violation of section 1053-a of the Penal Law. The statute does not require that a defendant must deliberately intend to kill a human being, for that would be murder. Nor does the statute require that he knowingly and consciously follow the precise path that leads to death and destruction. It is sufficient, we have said, when his conduct manifests a "disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment." (People v. Angelo, 246 N.Y. 451, 457.)

    29

    Assuming the truth of the indictment, as we must on a demurrer, this defendant knew he was subject to epileptic [140] attacks and seizures that might strike at any time. He also knew that a moving motor vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say as a matter of law that this did not amount to culpable negligence within the meaning of section 1053-a?

    30

    To hold otherwise would be to say that a man may freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his unconsciousness or involuntariness at that time would relieve him from prosecution under the statute. His awareness of a condition which he knows may produce such consequences as here, and his disregard of the consequences, renders him liable for culpable negligence, as the courts below have properly held (People v. Eckert, 2 N Y 2d 126, decided herewith; People v. Kreis, 302 N.Y. 894; Matter of Enos v. Macduff, 282 App. Div. 116; State v. Gooze, 14 N. J. Super. 277). To have a sudden sleeping spell, an unexpected heart or other disabling attack, without any prior knowledge or warning thereof, is an altogether different situation (see Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N.Y. 639), and there is simply no basis for comparing such cases with the flagrant disregard manifested here.

    31

    It is suggested in the dissenting opinion that a new approach to licensing would prevent such disastrous consequences upon our public highways. But would it — and how and when? The mere possession of a driver's license is no defense to a prosecution under section 1053-a; nor does it assure continued ability to drive during the period of the license. It may be noted in passing, and not without some significance, that defendant strenuously and successfully objected to the district attorney's offer of his applications for such license in evidence, upon the ground that whether or not he was licensed has nothing to do with the case. Under the view taken by the dissenters, this defendant would be immune from prosecution under this statute even if he were unlicensed. Section 1053-a places a personal [141] responsibility on each driver of a vehicle — whether licensed or not — and not upon a licensing agency.

    32

    Accordingly, the Appellate Division properly sustained the lower court's order overruling the demurrer, as well as its denial of the motion in arrest of judgment on the same ground.

    33

    The appeal by the People (hereinafter called appellant) challenges the determination of the Appellate Division that the testimony of Dr. Wechter was improperly admitted in contravention of section 352 of the Civil Practice Act, which states that a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity".

    34

    Two questions are raised by this appeal. The first is whether a physician-patient relationship existed between Dr. Wechter and defendant, and, if so, whether the communications made by defendant to him were necessary for the doctor to act in his professional capacity. The second is whether the presence of the police guard in the doorway of the room destroys any privilege arising under section 352 and permits the doctor to testify. It is not contested that defendant, as the party asserting the privilege, bears the burden of showing its application in the present case (Bloodgood v. Lynch, 293 N.Y. 308, 314; People v. Austin, 199 N.Y. 446, 452; People v. Koerner, 154 N.Y. 355, 366; People v. Schuyler, 106 N.Y. 298, 304). He claims to have sustained the burden on the basis of appellant's own evidence previously outlined.

    35

    Appellant contends that no professional relationship arose because the doctor was sent by the district attorney to examine, not treat, the defendant, and in fact he did not treat him. The cases upon which appellant relies are readily distinguishable from the one now before us. In People v. Schuyler (supra), for example, a jail physician was allowed to testify, over an objection based on the predecessor statute to section 352 of the Civil Practice Act, to his observations of the prisoner's mental condition. There was no evidence that the prisoner was ill, or that he was attended by, treated, or required any treatment by said jail physician while in custody.

    36

    The criterion to be applied in determining whether or not a professional relationship exists was stated in People v. Austin (199 N.Y. 446, supra). The testimony of a physician describing [142] an examination of defendant in jail relating to his sanity was found admissible because there were no circumstances from which it might be inferred that the defendant "was led to accept him [the examining doctor] as a physician and consequently to disclose to him information that perhaps would not otherwise have been given" (p. 452). This rule the court derived from People v. Stout (3 Parker Cr. Rep. 670, 676).

    37

    In People v. Koerner (154 N.Y. 355, 365-366, supra), as in People v. Furlong (187 N.Y. 198, 208-209), testimony of physicians was admitted, but in each case the defendant was explicitly informed that the physician was not acting in his capacity as a doctor or that information obtained might be used against him in subsequent legal proceedings (see, also, People v. Leyra, 302 N.Y. 353, 363, which had an altogether different fact pattern, however).

    38

    People v. Sliney (137 N.Y. 570, 580) and People v. Hoch (150 N.Y. 291, 302-303) are consistent with the rule of the Austin and Stout cases (supra). They are additional instances where the testimony of physicians who held examinations in jails was admitted, since no evidence was adduced from which it might be found that the defendants could reasonably have regarded the physician as acting in a professional capacity towards them.

    39

    Appellant further contends that there can be no finding of physician-patient relation in this case because there is no evidence that Dr. Wechter actually treated defendant. The cases relied on by appellant are inapposite. They properly hold that where a physician does treat a person, regardless of whether it is at his request, or with his consent, the relation arises, but they do not hold the converse (Meyer v. Knights of Pythias, 178 N.Y. 63, affd. 198 U. S. 508; People v. Murphy, 101 N.Y. 126). In determining whether or not information necessary for treatment is privileged, the question as to whether or not actual treatment is undertaken is not decisive (Grattan v. Metropolitan Life Ins. Co., 24 Hun 43, 46).

    40

    In any event, although Dr. Wechter testified that he personally did not treat defendant, he admitted that other doctors and internes in the hospital did "treat" him for Jacksonian epilepsy. He himself made that diagnosis. To say that in a hospital, where there is division of duties among the staff, the relation of physician and patient does not arise with regard to those members of the staff who do not actually treat the patient [143] is unsound. It would place upon section 352 strictures that are opposed to our oft-expressed view that the statute is to be liberally construed (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N.Y. 450, 455; Matter of City Council of City of N. Y. v. Goldwater, 284 N.Y. 296, 300; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 194).

    41

    It is apparent that the information here given by the defendant was necessary for his treatment. Those cases allowing disclosure by physicians of information related to them by their patients deal with such nonprofessional matters as details of an accident entirely unrelated to treatment (Griffiths v. Metropolitan St. Ry. Co., 171 N.Y. 106; Green v. Metropolitan St. Ry. Co., 171 N.Y. 201; Gray v. City of New York, 137 App. Div. 316, 321; Travis v. Haan, 119 App. Div. 138; Benjamin v. Village of Tupper Lake, 110 App. Div. 426; De Jong v. Erie R. R. Co., 43 App. Div. 427), or facts such as a layman might observe (Klein v. Prudential Ins. Co., 221 N.Y. 449; Sparer v. Travelers Ins. Co., 185 App. Div. 861). Evidence of a prior medical history of a disease for which defendant was treated cannot be said to be information unnecessary for treatment. The communication is therefore within the conditions set forth in section 352.

    42

    The second question will now be dealt with. The problem here is what effect, if any, the presence of the police guard, pursuant to the orders of the district attorney, in or about the doorway of the hospital room, where he could overhear the conversation between Dr. Wechter and defendant, has upon the privilege under section 352. That section does not in so many words require that a communication be confidential or confidentially given in order to be privileged. So we turn to the cases. In Matter of Coddington (307 N.Y. 181, 187-191) (then) CONWAY, J., pointed out that Judge EARL attempted, in Edington v. Ætna Life Ins. Co. (77 N.Y. 564) to confine the statute to information of a confidential nature, but the court did not agree with him on that point. As a result of the cases that followed — Grattan v. Metropolitan Life Ins. Co. (80 N.Y. 281) and Renihan v. Dennin (103 N.Y. 573) — in the latter of which Judge EARL suggested legislation, section 836 of the Code of Civil Procedure (now Civ. Prac. Act, § 354) was amended to allow physicians in effect to testify as to nonconfidential communications of deceased patients where the privilege has been waived by persons [144] authorized by the section to do so. The language of those cases was exceedingly broad, and it was pointed out that, under the literal phraseology of code section 834, the physician was absolutely prohibited from testifying so long as the conditions of the statute were met.

    43

    Faced with the problem of the effect on the privilege of the presence of third persons, our Appellate Divisions turned to these decisions and found them authority for holding the testimony of the physicians privileged. In Denaro v. Prudential Ins. Co. (154 App. Div. 840, 843 [2d dept.]), a patient was examined by a doctor "in the presence of [his] * * * father or others near", and it was held that the physician could not testify; the persons present may testify, but the physician is bound by the rule. Hobbs v. Hullman (183 App. Div. 743 [3d dept.]) decided that where a conversation was had between a physician and a patient in the presence of a nurse, who was neither a professional nor a registered nurse, the doctor's testimony was inadmissible. A third case, Sparer v. Travelers Ins. Co. (185 App. Div. 861, 864 [1st dept.], supra), reached the same conclusion; it did not allow the testimony of a physician as to the details of an operation he performed to be received in evidence, although a medical student was present during its performance. And now the fourth department in the case at bar has impliedly held likewise in the case of a police guard. The present case falls clearly within the scope of these decisions. If anything, it presents an even stronger situation, for the guard's presence was ordered by command of the public authorities.

    44

    An opposite result is not indicated by those cases dealing with the effect of the presence of a third person upon the attorney-client privilege under section 353 of the Civil Practice Act (Baumann v. Steingester, 213 N.Y. 328; People v. Buchanan, 145 N.Y. 1, 26). The Denaro case (154 App. Div. 840, supra) expressly held that the situations were not analogous. It may be noted that the applicable statutes are not identical. Under section 353, relating to attorneys, the privilege extends only to "a communication, made by his client to him". Under section 352 relating to physicians, however, the privilege extends to "any information which he acquired in attending a patient"; since such information may be acquired from third persons — and third persons who have some definite relationship to the [145] patient are often present — the situation is not analogous to an attorney-client relationship.

    45

    Whether or not this distinction accounts for the fact that in attorney-client cases it has generally been held that the presence of a third person destroys the privilege, the cases suggest that even here there are exceptions (Baumann v. Steingester, supra, p. 332; People v. Buchanan, supra, p. 26). So if the communication was intended to be confidential, the fact that it may have been overheard by a third person does not necessarily destroy the privilege (see People v. Cooper, 307 N.Y. 253, 259, n. 3; Erlich v. Erlich, 278 App. Div. 244, 245; Richardson on Evidence [8th ed.], § 438).

    46

    The true test appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute. Applying this test, we hold that under section 352, and the cases construing it, the communication by defendant to Dr. Wechter was privileged, and admission of it by the trial court was error, as correctly stated by the Appellate Division.

    47

    Defendant raises the subsidiary question that the hospital record was improperly received in evidence before the Grand Jury, and the indictment should, therefore, be dismissed. A word may be said about that. He made no motion for inspection of the minutes of the Grand Jury. We do not know what evidence was adduced there, for the Grand Jury minutes are not a part of this record. Even if we assume that the hospital record was improperly before the Grand Jury, we have no way of knowing what other evidence may have been adduced and formed a sufficient basis for the indictment. There is a presumption that an indictment is based on legally sufficient evidence (see People v. Eckert, supra; People v. Sweeney, 213 N.Y. 37, 44; People v. Sexton, 187 N.Y. 495, 512; People v. Glen, 173 N.Y. 395, 403). We cannot here rule on the legal sufficiency of evidence before the Grand Jury without knowing what that evidence is. Defendant should have taken appropriate steps below and made a record so as to be in a position properly to raise the question on appeal.

    48

    Accordingly, the order of the Appellate Division should be affirmed.

    49

    [146] DESMOND, J. (concurring in part and dissenting in part).

    50

    I agree that the judgment of conviction cannot stand but I think the indictment should be dismissed because it alleges no crime. Defendant's demurrer should have been sustained.

    51

    The indictment charges that defendant knowing that "he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness" suffered "an attack and loss of consciousness which caused the said automobile operated by the said defendant to travel at a fast and reckless rate of speed" and to jump a curb and run onto the sidewalk "thereby striking and causing the death" of 4 children. Horrible as this occurrence was and whatever necessity it may show for new licensing and driving laws, nevertheless this indictment charges no crime known to the New York statutes. Our duty is to dismiss it.

    52

    Section 1053-a of the Penal Law describes the crime of "criminal negligence in the operation of a vehicle resulting in death". Declared to be guilty of that crime is "A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed". The essentials of the crime are, therefore, first, vehicle operation in a culpably negligent manner, and, second, the resulting death of a person. This indictment asserts that defendant violated section 1053-a, but it then proceeds in the language quoted in the next-above paragraph of this opinion to describe the way in which defendant is supposed to have offended against that statute. That descriptive matter (an inseparable and controlling ingredient of the indictment, Code Crim. Pro., §§ 275, 276; People v. Dumar, 106 N.Y. 502) shows that defendant did not violate section 1053-a. No operation of an automobile in a reckless manner is charged against defendant. The excessive speed of the car and its jumping the curb were "caused", says the indictment itself, by defendant's prior "attack and loss of consciousness". Therefore, what defendant is accused of is not reckless or culpably negligent driving, which necessarily connotes and involves consciousness and volition. The fatal assault by this car was after and because of defendant's failure of consciousness. To say that one drove a car in a reckless manner in that his unconscious condition caused the car to travel recklessly is to make two mutually contradictory assertions. One cannot be "reckless" while unconscious. One cannot while unconscious [147] "operate" a car in a culpably negligent manner or in any other "manner". The statute makes criminal a particular kind of knowing, voluntary, immediate operation. It does not touch at all the involuntary presence of an unconscious person at the wheel of an uncontrolled vehicle. To negative the possibility of applying section 1053-a to these alleged facts we do not even have to resort to the rule that all criminal statutes are closely and strictly construed in favor of the citizen and that no act or omission is criminal unless specifically and in terms so labeled by a clearly worded statute (People v. Benc, 288 N.Y. 318, 323, and cases cited).

    53

    Tested by its history section 1053-a has the same meaning: penalization of conscious operation of a vehicle in a culpably negligent manner. It is significant that until this case (and the Eckert case, 2 N Y 2d 126, handed down herewith) no attempt was ever made to penalize, either under section 1053-a or as manslaughter, the wrong done by one whose foreseeable blackout while driving had consequences fatal to another person.

    54

    The purpose of and occasion for the enactment of section 1053-a is well known (see Governor's Bill Jacket on L. 1936, ch. 733). It was passed to give a new label to, and to fix a lesser punishment for, the culpably negligent automobile driving which had formerly been prosecuted under section 1052 of the Penal Law defining manslaughter in the second degree. It had been found difficult to get manslaughter convictions against death-dealing motorists. But neither of the two statutes has ever been thought until now to make it a crime to drive a car when one is subject to attacks or seizures such as are incident to certain forms and levels of epilepsy and other diseases and conditions.

    55

    Now let us test by its consequences this new construction of section 1053-a. Numerous are the diseases and other conditions of a human being which make it possible or even likely that the afflicted person will lose control of his automobile. Epilepsy, coronary involvements, circulatory diseases, nephritis, uremic poisoning, diabetes, Meniere's syndrome, a tendency to fits of sneezing, locking of the knee, muscular contractions — any of these common conditions may cause loss of control of a vehicle for a period long enough to cause a fatal accident. An automobile traveling at only 30 miles an hour goes 44 feet in a second. Just what is the court holding here? No less than [148] this: that a driver whose brief blackout lets his car run amuck and kill another has killed that other by reckless driving. But any such "recklessness" consists necessarily not of the erratic behavior of the automobile while its driver is unconscious, but of his driving at all when he knew he was subject to such attacks. Thus, it must be that such a blackout-prone driver is guilty of reckless driving (Vehicle and Traffic Law, § 58) whenever and as soon as he steps into the driver's seat of a vehicle. Every time he drives, accident or no accident, he is subject to criminal prosecution for reckless driving or to revocation of his operator's license (Vehicle and Traffic Law, § 71, subd. 3). And how many of this State's 5,000,000 licensed operators are subject to such penalties for merely driving the cars they are licensed to drive? No one knows how many citizens or how many or what kind of physical conditions will be gathered in under this practically limitless coverage of section 1053-a of the Penal Law and section 58 and subdivision 3 of section 71 of the Vehicle and Traffic Law. It is no answer that prosecutors and juries will be reasonable or compassionate. A criminal statute whose reach is so unpredictable violates constitutional rights, as we shall now show.

    56

    When section 1053-a was new it was assailed as unconstitutional on the ground that the language "operates or drives any vehicle of any kind in a reckless or culpably negligent manner" was too indefinite since a driver could only guess as to what acts or omissions were meant. Constitutionality was upheld in People v. Gardner (255 App. Div. 683). The then Justice LEWIS, later of this court, wrote in People v. Gardner that the statutory language was sufficiently explicit since "reckless driving" and "culpable negligence" had been judicially defined in manslaughter cases as meaning the operation of an automobile in such a way as to show a disregard of the consequences (see People v. Angelo, 246 N.Y. 451). The manner in which a car is driven may be investigated by a jury, grand or trial, to see whether the manner was such as to show a reckless disregard of consequences. But giving section 1053-a the new meaning assigned to it permits punishment of one who did not drive in any forbidden manner but should not have driven at all, according to the present theory. No motorist suffering from any serious malady or infirmity can with [149] impunity drive any automobile at any time or place, since no one can know what physical conditions make it "reckless" or "culpably negligent" to drive an automobile. Such a construction of a criminal statute offends against due process and against justice and fairness. The courts are bound to reject such conclusions when, as here, it is clearly possible to ascribe a different but reasonable meaning (People v. Ryan, 274 N.Y. 149, 152; Matter of Schwarz v. General Aniline & Film Corp., 305 N.Y. 395, 406, and cases cited).

    57

    A whole new approach may be necessary to the problem of issuing or refusing drivers' licenses to epileptics and persons similarly afflicted (see Barrow and Fabing on Epilepsy and the Law, ch. IV; Restricted Drivers' Licenses to Controlled Epileptics, and see 2 U.C.L.A. L. Rev., p. 500 et seq.). But the absence of adequate licensing controls cannot in law or in justice be supplied by criminal prosecutions of drivers who have violated neither the language nor the intendment of any criminal law.

    58

    Entirely without pertinence here is any consideration of driving while intoxicated or while sleepy, since those are conditions presently known to the driver, not mere future possibilities or probabilities.

    59

    The demurrer should be sustained and the indictment dismissed.

    60

    Order affirmed.

  • 3 People v. Newton

    1
    8 Cal.App.3d 359 (1970)
    2
    87 Cal. Rptr. 394
    3
    THE PEOPLE, Plaintiff and Respondent,
    v.
    HUEY P. NEWTON, Defendant and Appellant.
    4
    Docket No. 7753.
    5

    Court of Appeals of California, First District, Division Four.

    6
    May 29, 1970.
    7

     

    8

    [365] COUNSEL

    9

    Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus and Fay Stender for Defendant and Appellant.

    10

    [366] Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

    11

    OPINION

    12

    RATTIGAN, J.

    13

    Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.

    14

    Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, § 187) of John Frey; count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace officer engaged in the performance of his duties (Pen. Code, § 245b); count Three, with the kidnaping of Dell Ross. (Pen. Code, § 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.

    15

    After the People rested during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's motion for acquittal on count Three (the Ross kidnaping). Similar motions, addressed to the other counts, were denied. The jury acquitted him of the Heanes assault charged in count Two, but found him guilty of the voluntary manslaughter of Frey under count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.

    16

    At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:

    17

    Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity and which bore license number AZM 489. Less than a minute later, Lord told [367] Frey that "we have got some PIN information coming out on that."[1] Frey replied, "Check. It's a known Black Panther vehicle.... I am going to stop it at Seventh and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute" to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.

    18

    A few minutes later Frey asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him [Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.

    19

    Lord testified that under such circumstances "[w]e check and see if the warrants are still outstanding, first of all, and if they are, and then they [the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied "... I don't have the description. Do you have a birth date on him there? We're checking him out right now downstairs."

    20

    After another brief interval, and just before 5 a.m., this further exchange occurred by radio: "FREY: 1A, it's the same address. He has on his registration 1114-12th Street? RADIO [Lord]: Check. What's his birth date? FREY: He gave me some phony. I guess he caught on. RADIO: Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few minutes. FREY: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance immediately") from Officer Heanes at Seventh and Willow Streets.

    21

    Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing east. A [368] beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)

    22

    After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remained in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should." Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and ordered him out of the car.

    23

    Defendant got out of the Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front of his body.

    24

    Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's hands were empty.

    25

    Heanes returned his attention to Officer Frey and defendant, who were "on the trunk lid of my car [the third car in line] tussling." The two were in "actual physical contact" and "seemed to be wrestling all over the trunk [369] area of my car." He next remembered being on his knees at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard "other gunshots ... from the area of where Officer Frey and ... [defendant] ... were tussling on the rear part of my car."[2] Heanes did not see a gun in defendant's hand at any time. He next remembered "laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.

    26

    Henry Grier, a bus driver employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58 a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street. "Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turnaround point two blocks west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick up two bus passengers at Willow Street.

    27

    Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west. He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian," were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction about "ten paces" behind the first officer and the civilian. [370] (Grier did not then, or again, see the other "civilan" he had noticed when driving west on Seventh Street.)

    28

    As the first pair drew closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch" on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer as the latter was falling forward.[3] These shots were fired from, or within, a distance of "four or five feet" from the midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground. While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of the shootings.

    29

    Gilbert DeHoyos and Thomas Fitzmaurice, both Oakland police officers, testified for the People as follows: Shortly after 5 a.m. on October 28, 1967, both responded to Officer Heanes' "940B" call for assistance. Officer DeHoyos arrived at Seventh and Willow Streets less than a minute later; Officer Fitzmaurice arrived just behind him. They found Officer Frey lying on the street near the rear of Heanes' police car, still alive, and Heanes in the front seat of Frey's car. They saw no other persons nearby. Officer Heanes told Fitzmaurice that "his leg hurt and his arm and that Huey Newton had done it ... he told me he had fired [at defendant] and I think he hit him ... he [Heanes] thought he hit him."

    30

    Defendant arrived at the emergency desk of Kaiser Hospital at 5:50 a.m. on the same morning. He asked to see a doctor, stating "I have been shot in the stomach." A nurse called the police. Officer Robert Fredericks arrived and placed defendant under arrest. He (defendant) had a bullet wound in his abdomen. The bullet had entered in the front and exited through the back of his body.

    31

    Officers Frey and Heanes were taken to Merritt Hospital, where Frey was dead on arrival. He had been shot five times, at approximately the same time but in an unknown order. One bullet entered in the front, and [371] exited through the back, of his left shoulder; another passed through his left thigh, also from front to back. A third (the only one recovered from Frey's body) entered the midback and lodged near the left hip. A fourth creased the left elbow. Another bullet entered the back, traversed the lungs, and exited through the right shoulder in front: this wound caused Officer Frey's death within 10 minutes. Officer Heanes had three bullet wounds: one in his right arm, one in the left knee, one in the chest.

    32

    Three slugs were recovered: one from Officer Frey's hip, one from Heanes' left knee, and a third which had been lodged in the right front door of the Volkswagen. In addition, two 9-mm. Luger shell casings were found at the scene. One was in the street between the two police cars, the other near the left front bumper of Heanes' car and approximately where Frey was lying. The 9-mm. bullets had been fired from an automatic (Officers Frey and Heanes carried .38-caliber Smith & Wesson revolvers). A live 9-mm. Luger cartridge was found on the floor of the Volkswagen, between the two front seats. Only Officer Heanes' gun was found; he was holding it when the other officers arrived at the scene. Two rounds had been expended from the gun. Neither a Luger nor Officer Frey's revolver was found.

    33

    Oakland Police Department Officer John Davis testified for the People as follows: Two types of gunpowder, ball and flake, were involved in the shootings. Officer Frey's gunbelt contained high velocity cartridges with ball powder. Officer Heanes' gun used flake powder cartridges; the 9-mm. cartridges also contained flake powder. The three slugs recovered from Officer Frey's body, Heanes' knee and the Volkswagen door were .38-caliber specials fired with ball powder, similar to the cartridges in Officer Frey's gunbelt. The slugs found in both officers' bodies were fired from the same .38-caliber Smith & Wesson revolver, the type of weapon normally carried by Officer Frey; neither had been fired from Heanes' gun, which was of the same type.

    34

    Davis testified that a gunshot fired into a body from close range (up to "five, six feet," and with variations) will leave powder deposits at the point of impact; a gun firing a high velocity, ball powder bullet would have to be fired from a distance of more than six feet to leave no such deposits. Among several bullet-entry holes in Officer Frey's clothing, three (one in the left thigh and two in the back) were surrounded by ball powder deposits. Davis estimated that these shots were fired at the victim from distances of 12-24 inches, 12 inches and 6-12 inches. The other two entry holes in Frey's clothing (in the shoulder and elbow area) showed no powder deposits, and none appeared at the bullet-entry holes in the clothing worn by Officer Heanes and defendant.

    35

    [372]

    36
    Defense Evidence
    37

     

    38

    Tommy Miller gave this testimony for the defense: He boarded an eastbound bus at Seventh and Willow Streets at about 5 a.m. on October 28, 1967. As the bus moved away from the stop, and the driver was making change for him and another passenger, he saw "red lights and police cars" on Seventh Street, and police officers and another man in the street; one of the officers "had him [the man] up against the car." The witness could identify no faces; it was "too dark," and the persons in the street were facing away from him. Hearing "a lot of gunfire," he laid down in the rear of the bus. When the shooting stopped, he got up and saw, from the back of the bus (which had stopped), a police officer lying on the ground.

    39

    Gene McKinney, who was also called by the defense, testified that he was defendant's passenger in the Volkswagen at Seventh and Willow Streets. He thereafter pleaded self-incrimination as to any and all subsequent questions, was held in contempt by the trial court, and gave no further testimony.

    40

    Defendant, testifying in his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license, and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked back to his patrol car with the registration.

    41

    A few minutes later Officer Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?" Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton ..." Heanes replied, "Yes, I know who you are." Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him, placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the street side of the Volkswagen.

    42

    [373] Seizing defendant's left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing" him, past the first police car to the back door of the second one. Defendant opened his book[4] and said, "You have no reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion," then a "volley of shots." He remembered "crawling ... a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval, that he was "still only semiconscious" at the hospital entrance, and that — after recalling some events at Kaiser Hospital — he later "regained consciousness" at another hospital.

    43

    The defense called Bernard Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and that "[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so."

    44
    The Instructions Upon Unconsciousness
    45

     

    46

    Defendant asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide. As the record shows — and the Attorney General emphasizes — that defendant's original request for instructions on this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted to the court a formal list requesting — by number only — specified CALJIC instructions pertaining, among other things, to self-defense (322 and 322-A), unconsciousness (71-C and 71-D), diminished capacity and manslaughter.[5] At the suggestion of all counsel, the court announced that "... [A]rgument and discussion concerning [374] the proposed instruction will be had in chambers and when we get through ... we will come out and place on the record the rulings of the Court ... [on the instructions proposed by both sides] ..." The conference in chambers, which followed, was not reported (although it apparently lasted for several hours). At the opening of the next trial day, this exchange occurred between the court and defense counsel:

    47

    "THE COURT: Gentlemen, in connection with the instructions, in discussion in chambers the attorneys for the defendant have withdrawn their request for Instruction No. 322, 322A, of CALJIC, being instructions in self-defense. Is that correct, Mr. Garry?

    48

    "MR. GARRY [defense counsel]: That is correct.

    49

    "THE COURT: Mr. Newton, you understand that? Meet with your approval?

    50

    "THE DEFENDANT: Yes, it does.

    51

    "THE COURT: Now, the attorneys for the defendant have requested that the Court give either 71C and 71D, or give 73B of CALJIC. Now, is that correct?

    52

    "MR. GARRY: That is correct.

    53

    "THE COURT: Very well. The Court will give 73B, and at the request of the defendant will not give 71C and 71D. Does that meet with your approval, Mr. Garry?

    54

    "MR. GARRY: Yes, Your Honor.

    55

    "THE COURT: Mr. Newton, that has been explained to you and it meets with your approval?

    56

    "THE DEFENDANT: Yes." (Italics added.)

    57

    The trial court then enumerated, with some intermittent discussion, the CALJIC and other instructions which be given. This exchange followed:

    58

    "MR. GARRY: Let the record show that the instructions that have been requested by the defendant that are not being given, of course, will be stated as an objection on our part.

    59

    "THE COURT: Well, with the exception, of course, of those which have — 322 and 322A — which you have withdrawn, 71C and 71D which, in effect, you have withdrawn, because we are giving 73B —

    60

    "MR. GARRY: Yes, Your Honor.

    61

    "THE COURT: Those are the only ones. All the other instructions, yes, [375] I have gone through all of them and they are either not given or else they are covered by other instructions given, and I will make a note, of course, on each instruction ... and file that. You know now what instructions the Court plans to give...."[6]

    62

    Thereafter the trial court fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation, premeditation and malice aforethought) and in the second (including the element of malice aforethought). At defendant's request, the court also gave instructions on voluntary manslaughter[7] and diminished capacity.[8] Pursuant to the judge's intentions as announced in the dialog quoted above, the instructions originally requested by defendant on self-defense (CALJIC 322 and 322-A) and unconsciousness (71-C and 71-D) were not given; the jury was instructed on neither subject.

    63

    Although the evidence of the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant had been shot in the abdomen before he fired any shots himself.[9] [376] Given this sequence, defendant's testimony of his sensations when shot — supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal wound — supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.

    64

    (1) Where not self-induced, as by voluntary intoxication or the equivalent (of which there is no evidence here, as we pointed out in fn. 8, ante), unconsciousness is a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. Five; People v. Graham (1969) 71 Cal.2d 303, 316-317 [78 Cal. Rptr. 217, 455 P.2d 153]; People v. Wilson (1967) 66 Cal.2d 749, 760-762 [59 Cal. Rptr. 156, 427 P.2d 820].) "Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist — and the above-stated rule can apply — where the subject physically acts in fact but is not, at the time, conscious of acting.[10] The statute underlying the rule makes this clear,[11] as does one of the unconsciousness instructions originally requested by defendant.[12] (See also People v. Roerman (1961) 189 Cal. App.2d 150, 160-163 [10 Cal. Rptr. 870] and cases cited.) Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness" (e.g., People v. Coogler (1969) 71 Cal.2d 153, 157-159, 161-166, 169 [77 Cal. Rptr. 790, 454 P.2d 686]; People v. Wilson, supra, at pp. 752-753, 755-756, 761-763; People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411, 414 [303 P.2d 1018]; People v. Moore (1970) 5 Cal. App.3d 486, 488-490, 492 [85 Cal. Rptr. 194]; People v. Edgmon (1968) 267 Cal. App.2d 759, 762-763, 764 [fn. 5], [73 Cal. Rptr. 634]; People v. Cox (1944) 67 Cal. App.2d 166, 169-173 [153 P.2d 362]), including some in which the only evidence of "unconsciousness" was the actor's own testimony that he did not recall the shooting. [377] (E.g., People v. Wilson, supra, at pp. 755-756, 762; People v. Bridgehouse, supra, at pp. 409-411.)

    65

    (2) Where evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error. (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Bridgehouse, supra, 47 Cal.2d 406 at p. 414. See People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal. Rptr. 379, 461 P.2d 659]; People v. Coogler, supra, 71 Cal.2d 153 at p. 169.) The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." (People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal. Rptr. 225, 382 P.2d 33] [quoting People v. Carmen (1951) 36 Cal.2d 768, 772-773 (228 P.2d 281)].) (3a) It follows that the evidence of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. (People v. Castillo (1969) 70 Cal.2d 264, 270 [74 Cal. Rptr. 385, 449 P.2d 449]; People v. Modesto, supra; People v. Carmen, supra.)

    66

    Defendant did not request instructions upon unconsciousness; as we have seen, his original request therefor was "withdrawn." (4) But a trial court is under a duty to instruct upon diminished capacity, in the absence of a request and upon its own motion, where the evidence so indicates. (People v. Henderson (1963) 60 Cal.2d 482, 490-491 [35 Cal. Rptr. 77, 386 P.2d 677]; People v. Stines (1969) 2 Cal. App.3d 970, 977 [82 Cal. Rptr. 850].) (5) The difference between the two states — of diminished capacity and unconsciousness — is one of degree only: where the former provides a "partial defense" by negating a specific mental state essential to a particular crime, the latter is a "complete defense" because it negates capacity to commit any crime at all. (See People v. Gorshen (1959) 51 Cal.2d 716 at p. 727 [336 P.2d 492]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal. Rptr. 815, 411 P.2d 911].) (6) Moreover, evidence of both states is not antithetical; jury instructions on the effect of both will be required where the evidence supports a finding of either. (See People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson (1965) 63 Cal.2d 351, 355-356 [46 Cal. Rptr. 863, 406 P.2d 43].) (3b) We hold, therefore, that the trial court should have given appropriate unconsciousness instructions upon its own motion in the present case, and that its omission to do so was prejudicial error. (See People v. Mosher, [378] supra; People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.)

    67

    The error was prejudicial per se because the omission operated to deprive defendant of his "constitutional right to have the jury determine every material issue presented by the evidence." (People v. Mosher, supra, 1 Cal.3d 379 at p. 391; (People v. Modesto, supra, 59 Cal.2d 722 at pp. 730-731.) Actual prejudice, moreover, is perceptible in the present case. The voluntary manslaughter verdict indicates the jury's decision that defendant shot Officer Frey, but that the jurors found (1) provocation by the officer or (2) dimished capacity on defendant's part, or both. As defendant alone testified to both events, it appears that the jury believed him as to either or both. But, if they fully believed his testimony with respect to his asserted unconsciousness, they had been given no basis upon which to acquit him if they found it to be true. (See People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.) Defense counsel, in fact, argued to the jury defendant's, and Dr. Diamond's testimony on this subject. Absent instructions upon the legal effect of unconsciousness as a complete defense, the argument was necessarily limited and essentially ineffective. It further appears that the jury gave some thought at least, to acquitting defendant upon a finding of justifiable homicide.[13] Under these circumstances, it is "reasonably probable" that a result more favorable to him — i.e., a verdict acquitting him of the homicide, based upon unconsciousness as a complete defense — would have been reached if the omitted instruction had been given. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

    68
    The Question of Invited Error
    69

     

    70

    As defendant's point on the omission of unconsciousness instructions is thus valid on its merits, the question is whether he is precluded from asserting [379] it on appeal because his original request for such instructions was "withdrawn." He contends in effect that he withdrew his request for CALJIC 71-C and 71-D only because the trial court forced him to choose between them and a Wells-Gorshen instruction on dimished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, supra, 51 Cal.2d 716.) The trial court denied this claim when defense counsel asserted it on motion for new trial, nevertheless, the judge's remarks at trial suggest that he (the judge) thought the jury should be given instructions on diminished capacity or unconsciousness, but not upon both.[14]

    71

    If the trial court entertained this view at the time of its remarks, it was in error: the defenses of diminished capacity and unconsciousness were "entirely separate," and neither incompatible nor mutually exclusive, under the evidence. (See People v. Baker, supra, 42 Cal.2d 550 at p. 575 [268 P.2d 705]; People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson, supra, 63 Cal.2d 351 at p. 356.) In any event, while the deficient record[15] does not clearly substantiate counsel's claim that the trial court forced him to a choice, it does not wholly refute him, either; and it tends to explain the court's failure to instruct upon both defenses, upon its own motion, whether counsel correctly understood the situation or not.

    72

    A similar situation occurred, and was considered on appeal in light of the "invited error" concept, in People v. Graham, supra, 71 Cal.2d 303. In Graham, defense counsel had openly consented to the trial court's omission of a proper instruction and giving an erroneous one. (Id., pp. 317-318.) The Supreme Court first posed the question in terms of "whether the trial court's affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel" (id., pp. 317-318 (italics added)). and cited People v. Phillips (1966) 64 Cal.2d 574, 580-581 [fn. 4], [51 Cal. Rptr. 225, 414 P.2d 353] to the effect that such "waiver" foreclosed [380] complaint on appeal only where "the record indicated a `deliberate' or `expressed' tactical decision by counsel to forego a particular instruction which the court is otherwise obliged to render to the jury." (People v. Graham, supra, at p. 318 (italics in the original).)

    73

    The Graham court went on to hold that "invited error" will not originate, so as to foreclose complaint on appeal, by reason of counsel's neglect or mistake: "[O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause." (People v. Graham, supra, 71 Cal.2d 303 at p. 319 (italics added).) This rule applies with equal effect in the present case, where defense counsel's asserted "waiver" consisted of failing to press for instructions upon unconsciousness, and the Graham court said as much: "This formulation correctly resolves the competing considerations of the underlying policies relevant to the problem. On the one hand, the attorney should exercise control over his case and bear responsibility for tactical decisions reached in the course of his representation. On the other hand, the Legislature has indicated that instructions which affect the substantial rights of a defendant should be subject to review, even though his counsel, through neglect or mistake, has failed to object to them. Indeed, this court has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless of the failure of defense counsel to offer such instructions or to object to their omission." (Id., at pp. 319-320 [italics added].)

    74

    The self-defense instructions originally requested by defendant (CALJIC 322 and 322-A) were wholly inconsistent with his testimony that he he did not kill Officer Frey or shoot Officer Heanes. Accordingly, we can discern a "deliberate tactical purpose" in his counsel's withdrawing the request for them. Defendant's denial of the shootings, however, went no further than his own conscious recollections as recited in his testimony; the denial was not inconsistent with the hypothesis that he fired a gun while — and not before — he was in a state of "unconsciousness" as such state has previously been defined herein. Against the substantial evidence that it was he who shot Officer Frey, the instructions he requested on diminished capacity afforded him partial defenses at best. As only instructions upon unconsciousness offered a complete defense (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Mosher, supra, 1 Cal.3d 379 at p. 391), his counsel's "withdrawal" of them, or the failure to press for them, is irreconcilable with "deliberate [381] tactical purpose" on counsel's part. (Cf. People v. Phillips, supra, 64 Cal.2d 574 at pp. 580-581 [fn. 4 and cases cited].)

    75

    (7) The "withdrawal" of the critical instructions — to the extent that the event appears[16] — can perhaps be ascribed to "neglect or mistake" (People v. Graham, supra, 71 Cal.2d 303 at p. 319), or "ignorance or inadvertence" (id., at p. 320) on the part of defense counsel. Whatever the reason for it, though, no "deliberate tactical purpose" appears and we can conceive of none. Under these circumstances, the "invited error" doctrine does not foreclose defendant from asserting his point on the appeal. (Id., at p. 319.) Since we have sustained the point on its merits, the judgment must be reversed.

    76

    We also sustain certain other claims of trial error advanced by defendant on the appeal. As the error in the instructions alone requires reversal, we need assess none of the other errors in terms of prejudicial effect. Some of them warrant discussion although they will not recur; others require it because of the prospect of a retrial. They relate to (1) an extrajudicial statement given to the police by the witness Henry Grier, (2) the grand jury testimony of Dell Ross concerning the kidnaping charged in count Three of the indictment, and (3) defendant's prior felony conviction.

    77
    Grier's Extrajudicial Statement
    78

     

    79

    Henry Grier's eyewitness account of the shooting affray (summarized supra) was the only direct trial evidence that defendant was the person who fatally shot Officer Frey; Grier's in-court identification of defendant was positive in this respect. He had given a tape-recorded statement to the Oakland police, on the morning of the shootings and less than two hours afterward. As recited in the written transcript of the October 28 statement, his narrative version of the shooting episode did not materially vary from that given in his trial testimony. In the statement as transcribed, however, he described Officer Frey's assailant as "very short ... sort of pee-wee type fellow ... no more [than] five feet" in height, weighing "125 pounds" and wearing a dark shirt and light jacket. Grier testified at the trial that Frey's assailant was of "medium height and build" (consistent with the physical measurements of defendant, who is 5 feet 10 inches tall and weighs 165 pounds) and wore a light shirt and dark jacket. Emphasizing [382] these discrepancies in cross-examining Grier, defense counsel made extensive use of the October 28 transcript to impeach the witness' in-court identification of defendant. Counsel also read the full transcript to the jury. The copy used for these purposes, as made available to the defense by the prosecution at the time of trial, showed the following question put to Grier by the police on the morning of the shootings, and his answer thereto:

    80

    "Q" [By the interrogating police officer] About how old was [Officer Frey's assailant]?

    81

    "A. I couldn't say because I only had my lights on, I couldn't — I did get a clear picture, clear view of his face but — because he had his head kind of down facing the headlights of the coach [Grier's AC Transit bus] and I couldn't get a good look — " (Italics added.)

    82

    Arguing to the jury, defense counsel cited the passage of the transcript wherein Grier had said he "couldn't get a good look," but omitted any reference to his statement that he "did get a clear picture, clear view" of the assailant's face. Responding in his closing argument, the prosecutor repeatedly reminded the jury of the latter statement. During its deliberations, the jury asked to see a copy of the transcript. Defense counsel, having mutilated his copy during his jury argument, requested another copy from the prosecution. According to the new copy he received, Grier had said, in the above-quoted context of the October 28 statement, that "I didn't get a clear picture, clear view of his face ..." (Italics added.)

    83

    The defense immediately moved to reopen the case so that the jury could be apprised of newly discovered evidence. The court denied the motion. Having then obtained the original October 28 police recording of Grier's statement, the defense again moved to reopen. This time, after hearing a playback of the recording, the court found that Grier had indeed said "didn't" in the context quoted above. The judge again refused to reopen, but stated that some action should be taken to provide the jury with a corrected version of the Grier statement. The court thereupon ordered that a "correction" be made in the written transcript, and that a corrected copy of the document be "sent to the Jury just in an ordinary manner without any comment or instructions." The transcript was sent to the jury with the word "did" corrected to read "didn't," but without explanation or notice of the change.

    84

    (8) Defendant contends that the trial court abused its discretion in refusing to reopen the case. The Attorney General's only argument is to the effect that defendant cannot now complain because his attorney approved the procedure followed by the trial court in sending the corrected transcript to the jury. Defense counsel did indicate his approval of the procedure [383] when the trial court proposed it, but this was after defendant's first motion to reopen had been denied and the court had indicated its intention to deny the second. At that point, counsel had the choice of approving the procedure or having no correction sent to the jury at all. Under the circumstances, he cannot be said to have waived the right to challenge the court's denial of his motions to reopen.

    85

    (9) The trial court clearly had discretion to order the case reopened (Pen. Code §§ 1093, 1094; People v. Berryman (1936) 6 Cal.2d 331, 338-339 [57 P.2d 136]; People v. Richardson (1961) 192 Cal. App.2d 166, 169 [13 Cal. Rptr. 321]), even after the jury deliberations had begun (People v. Christensen (1890) 85 Cal. 568, 570 [24 P. 888]. See Stoumen v. Munro (1963) 219 Cal. App.2d 302, 319 [33 Cal. Rptr. 305]; Annot., 87 ALR2d 849, 851 et seq.) (10) Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made (see People v. Carter (1957) 48 Cal.2d 737, 757 [312 P.2d 665]), the diligence shown by the moving party in discovering the new evidence (Fernandez v. United States (9th Cir.1964) 329 F.2d 899, 903), the prospect that the jury would accord it undue emphasis (Eason v. United States (9th Cir.1960) 281 F.2d 818, 821-822, and the significance of the evidence. (People v. Carter, supra, at p. 755.)

    86

    Reopening — and its conceivably attendant consequences in terms of further proof, argument and instructions — would have been inconvenient because of the stage of the proceedings at which defendant moved, but it was neither impossible nor unreasonable. (See People v. Carter, supra, 48 Cal.2d 737 at p. 757; Witkin, Cal. Criminal Procedure (1963) § 434, pp. 435-436 and cases cited.) Reopening was not precluded by any lack of diligence on the part of the defense,[17] and the trial court could have minimized the possibility that the jury would overemphasize the newly discovered evidence.

    87

    Whether the new evidence — i.e., the single word change required and made in the transcript of Grier's pretrial statement — was vital and material is arguable either way. Still, Grier was the only witness who positively identified defendant as Officer Frey's assailant. (11) Whether he "did" or "didn't" see the assailant's face was material, especially in light of the [384] discrepancies in his separate descriptions of the person he claimed to have seen shooting Officer Frey. The prosecution had vigorously emphasized the word "did" in defending the credibility of Grier's in-court indentification of defendant. The latter was entitled to have the jury consider the possibility, however remote, that someone other than he (e.g., Gene McKinney, whose role in the shooting episode is obscure, under the evidence, to the point of mystery) had engaged in the fatal scuffle with the officer. The jury had indicated its interest in these matters by requesting a copy of the transcript of Grier's pretrial statement. Under all the circumstances, we conclude that the trial court abused its discretion in denying defendant's motions to reopen the case.

    88
    The Dell Ross Grand Jury Testimony
    89

     

    90

    Before the grand jury which produced the indictment charging defendant, in count Three, with kidnaping Dell Ross on October 28, 1967, Ross testified in pertinent part as follows: Sitting in his parked automobile near Seventh and Willow Streets on that date, he heard several gunshots. Two men (one of them defendant, whom Ross identified to the grand jury from a photograph) entered his car. Defendant ordered him, at gunpoint, to drive the pair to a specified street corner in Oakland. Ross complied. While in his car, both men made several statements, quoted by Ross to the grand jury, which implicated defendant in the shooting episode and were highly damaging to his defense in the present prosecution.

    91

    When called by the People as a trial witness, and upon the advice of counsel (who appeared with him) Ross pleaded self-incrimination and refused to answer any questions concerning the morning of October 28, 1967. At the request of the prosecution and pursuant to Penal Code section 1324, the trial court granted him immunity and ordered him to testify. Although Ross continued to refuse upon the ground of self-incrimination, he soon indicated that he did not remember what happened on October 28 or testifying to the grand jury. Upon this basis, the prosecutor showed him a copy of the transcript of his grand jury testimony and asked whether it refreshed his memory. When Ross said that he could not read, and over defense objections, the prosecutor then read all his grand jury testimony to the trial jury.

    92

    The trial court instructed the jury that the grand jury testimony, and the defense tape recording, were admitted for impeachment only and not for the truth of the matters asserted in either. Several trial days later, upon motion by the defense, the trial court ordered stricken from the record "the entire testimony of ... [Dell Ross] ..., and all questions asked of and answers given by said witness, including papers and recordings [385] and all statements heretofore made by any counsel, or by the Court, in connection with said witness"; instructed the jury to disregard such evidence; and entered a verdict of acquittal on the kidnaping charge for the stated reason that "the evidence now before the Court is insufficient to sustain a conviction of such offense."

    93

    In light of several considerations (the trial court's order striking the Ross testimony to the grand jury, its admonition to the trial jury to disregard it, its order acquitting defendant of the Ross kidnaping, and the degree of the jury's verdict on the homicide charge), it is questionable whether the reading of the grand jury testimony was prejudicial error. It was, however, error which should not recur if defendant is retried.[18] (12) Because of Ross's inability or refusal to recall his testimony to the grand jury, the defense had no opportunity to cross-examine him concerning that testimony. The reading thereof to the trial jury, consequently, operated to violate defendant's Sixth Amendment right of confrontation. (U.S. Const., 6th Amend.; Douglas v. Alabama (1964) 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938, 85 S.Ct. 1074]; see California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].) (13) Nor can the action be justified as impeachment. A party's right to impeach his own witness (Evid. Code, §§ 785, 780 [subd. (h)], 769, 770) is not available where, as here, the witness has not testified against the impeaching party at all: "there is nothing to counteract," and the prior statement emerges as substantive evidence of the facts asserted in it. (People v. Newson (1951) 37 Cal.2d 34, 41 [230 P.2d 618].)

    94

    [386]

    95
    The Prior Felony Conviction
    96

     

    97

    As charged in the indictment and found by the jury, defendant was convicted of a felony (assault with a deadly weapon) in 1964. He represented himself at the 1964 trial. The conviction was affirmed by this court in an unpublished decision filed in 1965 (People v. Newton (1965) 1 Crim. 4908 [certified for nonpublication]); the Supreme Court denied defendant's petition for hearing. During jury voir dire in the present prosecution, defendant moved to strike the prior conviction from the indictment, and for a protective order forbidding its "mention" at the murder trial, upon the Sixth Amendment ground that his waiver of counsel in the 1964 proceedings had been ineffective. The trial court read into the record the full appellate court decision in which the prior conviction was affirmed in 1965; stated that the appellate court had therein considered all of defendant's current contentions; and denied his motion without an evidentiary hearing.

    98

    (14) Where a prior conviction is constitutionally invalid because the accused was deprived of his Sixth Amendment right to counsel or did not effectively waive it, utilization of the conviction in a subsequent prosecution to support his guilt, enhance his punishment, or impeach his testimonial credibility, is constitutional error. (Burgett v. Texas (1967) 389 U.S. 109, 114-116 [19 L.Ed.2d 319, 324-326, 88 S.Ct. 258]; People v. Coffey (1967) 67 Cal.2d 204, 218-219 [60 Cal. Rptr. 457, 430 P.2d 15].) When he raises the issue in the subsequent prosecution by moving to strike the prior or by denying it (upon constitutional grounds in either instance), the trial court must hold a hearing outside the presence of the jury and make a relevant finding based upon evidence there presented. (People v. Coffey, supra, at pp. 217-218.) The required hearing must be conducted even if the issue arises during the trial, so long as the objection is asserted before the case is submitted to the jury. (People v. Curtis (1969) 70 Cal.2d 347, 359-361 [74 Cal. Rptr. 713, 450 P.2d 33].)

    99

    The People contend that defendant's motion to strike was invalid on procedural and formal grounds. We need not here set forth the details of the motion as challenged by the Attorney General in this regard; they are intricate, and are unlikely to recur if defendant again mounts a constitutional attack upon the 1964 conviction. It suffices to say that we reject the Attorney General's procedural and formal objections to the motion, and that, fairly read with the declaration by counsel which was filed in support thereof, the motion unmistakably advanced the claim that the 1964 trial court had permitted defendant to represent himself at the assault trial without inquiring into his ability to do so. (15) Recent decisions establish [387] that such inquiry is required before a waiver of counsel can be accepted by a trial court. (E.g., People v. Carter (1967) 66 Cal.2d 666, 672 [58 Cal. Rptr. 614, 427 P.2d 214]; People v. Armstrong (1969) 274 Cal. App.2d 297, 303 [79 Cal. Rptr. 223].) While defendant's motion and its supporting declaration were drafted inartfully and in obvious haste, they presented a reasonably "clear allegation" by defendant "to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented." (Original italics.) (People v. Coffey, supra, 67 Cal.2d 204 at p. 215 [quoting People v. Merriam (1967) 66 Cal.2d 390, 397 (58 Cal. Rptr. 1, 426 P.2d 161)].)

    100

    The People also argue that defendant's Sixth Amendment point, as addressed to the 1964 conviction, was resolved against him on the 1965 appeal. We disagree: the 1965 decision noted that he had waived counsel by insisting upon representing himself at the assault trial, but the point now advanced — that his waiver of counsel was ineffective for lack of an appropriate inquiry by the trial court in 1964 — was neither raised nor resolved on the former appeal. (16) As the right to assistance of counsel at the former trial "applies retrospectively without regard to time" (People v. Coffey, supra, 67 Cal.2d 204 at p. 214) for purposes of the present case, the trial court erred in failing to conduct an evidentiary hearing upon defendant's motion to strike. (Id., at pp. 214-218.)

    101

    (17) In the motion, defendant also attacked the prior conviction upon the Fifth Amendment ground that the 1964 trial court permitted him to testify (he being unrepresented by counsel) without advising him of his right not to do so. (See People v. Wells (1968) 261 Cal. App.2d 468, 481 [68 Cal. Rptr. 400]; People v. Glaser (1965) 238 Cal. App.2d 819, 828-829 [48 Cal. Rptr. 427].) Because of the inadequacy of defendant's showing, on the motion, that he was unaware of his right not to testify at the 1964 trial (see People v. Glaser, supra, at pp. 832-833), we perceive no error in the trial court's denial of his motion with respect to his Fifth Amendment point. (We do not hold as the law of the case that he is precluded from asserting the point again. The problem may not present itself; a ruling by the trial court on his Sixth Amendment point may render it moot.)

    102

    Defendant has made certain other contentions which warrant discussion because of the prospect that his prosecution will continue. First among these are his arguments challenging the validity of his indictment by the grand jury and the manner in which the trial jury was selected. (He raised both questions with pretrial motions, which the trial court denied.)

    103

    [388]

    104
    The Validity of Defendant's Indictment
    105

     

    106

    (18) Contrary to defendant's first several contentions relative to his indictment by the grand jury, we hold as follows: (1) The laws of this state which permit a prosecutor to proceed against an accused by way of either information or grand jury indictment, at the prosecutor's option (Cal. Const., art. I, § 8; Pen. Code, §§ 682, 737), are constitutional. (People v. Flores (1969) 276 Cal. App.2d 61, 65-66 [81 Cal. Rptr. 197].) (19) (2) Defendant was not, by reason of the grand jury proceedings which produced his indictment, unconstitutionally denied the procedural rights which would have been available to him at a preliminary examination. (People v. Flores, supra.) (20) (3) The California statutes controlling the selection of grand jurors (Pen. Code, § 894 et seq.) are constitutional. (Turner v. Fouche (1970) 396 U.S. 346, 353-355 [24 L.Ed.2d 567, 575-576, 90 S.Ct. 532]; Carter v. Jury Commission (1970) 396 U.S. 320, 329-337 [24 L.Ed.2d 549, 557-561, 90 S.Ct. 518]; Smith v. Texas (1940) 311 U.S. 128, 130-131 [85 L.Ed. 84, 86-87, 61 S.Ct. 164].)

    107
    Grand Jury Selection
    108

     

    109

    Defendant next contends that the above-cited grand jury selection statutes, as applied in Alameda County, resulted in unconstitutional discrimination against young persons, low income groups and black persons.[19] According to the evidence produced upon his pretrial motion in this regard, the membership of the grand jury which indicted him was drawn from among persons who had been nominated to the grand jury by each of the county's 20 superior court judges. (Pen. Code, § 903.4.) The presiding judge of the superior court (for 1967) testified that he had selected his three nominees from among his personal acquaintances. There was no evidence of the selection practices followed by other judges in connection with the 1967, or any other, grand jury.

    110

    (21) The constitutional standards controlling the selection of grand jurors are the same as for petit jurors. (Pierre v. Lousiana (1939) 306 U.S. 354, 362 [83 L.Ed. 757, 762, 59 S.Ct. 536].) (22) They must be selected in a manner which does not systematically exclude, or substantially underrepresent, the members of any identifiable group in the community. (Whitus v. Georgia (1967) 385 U.S. 545, 548-552 [17 L.Ed.2d 599, 602-605, 87 S.Ct. 643] Hernandez v. Texas (1954) 347 U.S. 475, 476-478 [389] [98 L.Ed. 866, 869-870, 74 S.Ct. 667]; People v. White (1954) 43 Cal.2d 740, 749-753 [278 P.2d 9]). (23) Such "purposeful discrimination," however, "may not be assumed or merely asserted"; it must be proved (Swain v. Alabama (1965) 380 U.S. 202, 205 [13 L.Ed.2d 759, 764, 85 S.Ct. 824]), and defendant bore the burden of making a prima facie case that it existed here. (Whitus v. Georgia, supra, at p. 550 [17 L.Ed.2d at pp. 603-604].) He presented to the trial court little or no evidence concerning the racial composition of any Alameda County grand jury or grand jury panel. He showed a breakdown of certain grand jurors according to their occupations, but this does not demonstrate "purposeful discrimination" against poor people or anyone else. (See Fay v. New York (1947) 332 U.S. 261, 273-277 [91 L.Ed. 2043, 2052-2054, 67 S.Ct. 1613].) There was some evidence to the effect that all or most of the members of the 1967 grand jury (which indicted him) were middle-aged persons; again, however, systematic exclusion of the young is not shown. Defendant having failed to make a prima facie case that the 1967 grand jury was constitutionally infirm in any respect pertaining to its selection, he cannot challenge the validity of the indictment upon the ground asserted.

    111
    Petit Jury Selection
    112

     

    113

    Defendant contends that the trial jury panel, and the jury itself, were unconstitutionally selected. While we need not consider his arguments relating to administrative excuses from jury service, challenges for cause, and peremptory challenges, we discuss those points which will be relevant in the event of retrial. The first is addressed to the fact that the names of the prospective trial jurors were drawn from the latest Alameda County voter registration lists, at random but from no other source.

    114

    On defendant's pretrial motion attacking the venire, his witnesses testified that the selection of jurors exclusively from voter lists results in underrepresentation of poor persons and black persons on juries, because such people are less likely to be registered voters. According to defendant's statistics, the voter registration rate in the predominantly black-populated areas of West Oakland, South Oakland and South Berkeley (all of which are in Alameda County) is 64.7 percent, whereas the countywide rate is 82 percent. One of his witnesses testified that black persons constitute about 7.5 percent of jury panels when voter registration lists are the sole source of prospective jurors' names. Black persons constitute 12.4 percent of Alameda County's population.

    115

    (24) As registration to vote is not a condition of eligibility for jury service in this state (see Code Civ. Proc., §§ 198, 199), the county's discretion to use voter registration lists as the source of jurors is subject to the constitutional requirement that juries must reasonably reflect a cross-section [390] of the community. (Smith v. Texas, supra, 311 U.S. 128 at p. 130 [85 L.Ed. 84 at p. 86]; People v. White, supra, 43 Cal.2d 740 at p. 749.) (25) While each jury roll or venire need not be a perfect mirror of the community (Swain v. Alabama, supra, 380 U.S. 202 at p. 208 [13 L.Ed.2d 759 at p. 766]; People v. White, supra), any substantial disparity, over a period of time, between a group's percentage thereon and its percentage in the eligible population is prima facie evidence of discrimination, regardless of the source of jurors, and shifts the burden to the prosecution to justify the discrepancy. (Turner v. Fouche, supra, 396 U.S. 346 at p. 360 [24 L.Ed.2d 567 at p. 579]; Whitus v. Georgia, supra, 385 U.S. 545 at pp. 550-552 [17 L.Ed.2d 599 at pp. 603-605].) The disparity claimed in the present case, however (7.5 percent versus 12.4 percent) is not so substantial as to produce this result. (Swain v. Alabama, supra, at pp. 205, 209 [13 L.Ed.2d at pp. 764, 766] (10-15 percent vs. 26 percent). Compare Turner v. Fouche, supra (37 percent vs. 60 percent); Sims v. Georgia (1967) 389 U.S. 404, 407 [19 L.Ed.2d 634, 637, 88 S.Ct. 523] (4.7-9.8 percent vs. 24.4 percent); Whitus v. Georgia, supra, 385 U.S. 545, 550-552 [17 L.Ed.2d 599, 603-605] (7.8-9.1 percent vs. 27.1 percent). See Kuhn, Jury Discrimination (1968) 41 So.Cal.L.Rev. 235, 251-257 and data cited passim.)

    116

    The record does not sustain defendant's contention that black persons were underrepresented on the trial jury panel; of the 160 prospective jurors examined, about 13 percent were black persons.[20] He presented no evidence of the economic status of any of the panel members to support his charge that poor persons were excluded from, or substantially underrepresented on, the panel. On the showing made, we cannot conclude that unconstitutional discrimination, on racial or economic grounds, occurred in the selection of prospective jurors.

    117

    (26) We also reject defendant's argument that, because of the nature of the case (involving a fatal altercation between a black defendant and white police officers), he was entitled to have at least one resident of West Oakland (described as a "black ghetto") serve on his trial jury.[21] (27) "Of course, these premises misconceive the scope of the right to an impartially selected jury assured by the Fourteenth Amendment. That right does not entitle one accused of crime to a jury tailored to the circumstances [391] of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions. (Citation.)" Hoyt v. Florida (1961) 368 U.S. 57, 59 [7 L.Ed.2d 118, 120-121, 82 S.Ct. 159].)

    118

    Certain claims of trial error should also be mentioned. (28, 29) Contrary to defendant's contention as to each point, we hold as follows: (1) The trial court did not err in instructing the jury on flight and motive. The evidence supported the instructions given, and defendant's proposed modifications of the standard instructions on these subjects were properly refused because they emphasized specific evidence. (People v. Hughes (1951) 107 Cal. App.2d 487, 494 [237 P.2d 64]; Witkin, Cal. Criminal Procedure, op. cit., supra, § 477, pp. 484-485.) (2) Defendant's requested instruction on unlawful detention was also properly refused. (30) Unlawful detention by a police officer does not justify unlawful resistance thereto. (Pen. Code, § 834a; People v. Curtis (1969) 70 Cal.2d 347, 352 [74 Cal. Rptr. 713, 450 P.2d 33].)

    119

    (3) The trial court did not err in excluding the proffered testimony of defense witnesses Burton, Quinones, Daniels, Harris and Brown. (31) Burton's testimony, offered to prove past mistreatment of black persons by Officer Frey (a subject upon which the trial court gave the defense considerable latitude), was not probative on that subject and was cumulative to the testimony of other defense witnesses. (32) Quinones' testimony would have been to the effect that police officers harassed defendant at the hospital after the shootings; that of the other three, that the prosecution had offered to pay for information concerning this case. Neither subject was relevant.

    120

    (33) (4) The trial court did not unduly restrict the voir dire of prospective jurors concerning their racial attitudes. The record shows that the defense was given full latitude in asking questions pertaining to possible racial bias and their knowledge and viewpoints on such matters as the "Black Panther Party," fair housing, "black power" and various political and other organizations.

    121

    Other points raised on the appeal need not be discussed.

    122

    The judgment of conviction is reversed.

    123

    Devine, P.J., and Christian, J., concurred.

    124

    On June 26, 1970, the opinion was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied July 29, 1970. McComb, J., was of the opinion that the petition should be granted.

    125

    [1] "PIN" means "Police Information Network," a computerized system which stores and reports information concerning outstanding warrants associated with identified motor vehicles.

    126

    [2] Although Officer Heanes' testimony was clear to the effect that he heard the first shot, and was struck in the arm, before anything else happened, it was ambiguous as to the sequence in which the subsequent shots were fired. His first account, on direct examination, indicated that he fired at defendant's "midsection," and from a kneeling position, before he heard the "other gunshots" mentioned. His later testimony to the same events, under cross-examination and upon redirect, suggested that he heard the "other gunshots" before he fell to his knees and fired at defendant. As will appear, he fired another shot, and was himself shot again twice, during the episode described. He did not remember these events. and testified that he "blacked out," and had a "lapse of memory," after he was shot in the arm.

    127

    [3] Grier expressly testified to the sequence of shots stated here: i.e., that "the gun went off" the first time; the second officer "was hit and he fell," and fired his own gun; and the civilian thereafter fired "several shots" at the first officer.

    128

    [4] A criminal lawbook, with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.

    129

    [5] On diminished capacity, defendant requested CALJIC 73-B (Revised) and 305.1 (New); on manslaughter, CALJIC 305-AA (New), 308 (Revised), 308-A (Revised), 310 (Revised), 311 and 311-B. This cause was tried before the publication (in 1970) of the current (third) edition of CALJIC; the work cited at the trial was the revised (1966) edition of CALJIC (California Jury Instructions — Criminal) as supplemented through its 1967 cumulative pocket part.

    130

    [6] Defendant's formal list requested 31 CALJIC instructions, referring to each by its number only. According to the trial court's "note" later written by the entries requesting CALJIC 322 and 322-A (on self-defense), and 71-C and 71-D (on unconsciousness), each of these requests was shown to have been "Withdrawn."

    131

    [7] CALJIC 308-A (Rev.) ("Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion without deliberation or premeditation"), 311 (concerning "provocation" and "heat of passion"), 305-AA (New) and 311-B.

    132

    [8] The court gave the two CALJIC instructions requested by defendant on this subject: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged" (CALJIC 73-B [Rev.]); and

    133

    "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree." (CALJIC 305.1 [New].)

    134

    (We mention in passing that there was no evidence that defendant was mentally ill or intoxicated at the time of the shootings.)

    135

    [9] Defendant's testimony suggested that Officer Frey wounded him with the first shot fired. However, the absence of powder deposits on his (defendant's) clothing would indicate that Officer Heanes, not Frey, shot him. Grier's testimony was explicit as to this sequence: i.e., that Heanes. struck by the first bullet fired, shot at defendant before the latter commenced firing at Frey. (See text at fn. 3, ante.) Heanes' account, while less precise on this subject (see text at fn. 2, ante) also supports the inference that he shot defendant (in the "midsection") before Officer Frey was shot by anyone.

    136

    [10] As was true of Officer Heanes, according to his testimony (see fn. 2, ante), during part of the shooting episode in the present case.

    137

    [11] Penal Code section 26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes: ... Five-Persons who committed the act charged without being conscious thereof." (Italics added.)

    138

    [12] CALJIC 71-C, which read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime...." (Italics added.)

    139

    [13] The jurors deliberated for four full days, during which they were twice reinstructed, by request, on murder in both degrees, voluntary manslaughter, provocation, heat of passion, diminished capacity, and assault. On one of these occasions, they apparently asked for instructions on "justifiable homicide," which had not been given in the first instance (and were not given when requested). The actual request — which was apparently in writing — does not appear of record, but the trial judge recalled it at a post-judgment hearing conducted for the purpose of correcting the reporter's transcript. The prosecutor declined to stipulate that the request was made, but stipulated that the judge's recollection thereof "may be put in the record." Since the event recalled stands uncontroverted, the jury's interest in "justifiable homicide" is thus a matter of record.

    140

    It also bears mentioning that, during their lengthy deliberations, the jurors asked to see, and were shown, the bullet wounds in defendant's body.

    141

    [14] We refer to the court's statements, quoted supra, that defense counsel had requested "either" CALJIC 71-C and 71-D (on unconsciousness) "or" 73-B (on diminished capacity); that the court would "give 73B and at the request of the defendant will not give 71C and 71D"; and that defense counsel's objections to omitted instructions did not reach "71C and 71D which, in effect, you have withdrawn, because we are giving 73-B ..."

    142

    [15] The record is deficient, of course, because the conference in chambers was unreported. This was not by stipulation of the parties, so far as appears, and it should not have occurred in this particular — and highly important — instance. (See Code Civ. Proc., § 269.)

    143

    [16] Because the conference in chambers went unreported (see fn. 15, ante), the record sheds no real light on this subject; the only relevant events of record are defense counsel's affirmative — and laconic — answers to the trial court's inquiries during the successive dialogs quoted, supra, from the trial proceedings. We accord no significance to defendant's similar responses.

    144

    [17] The Attorney General disputes the fact stated here, but he does so within the broader context of defendant's contention, on the appeal, that the prosecution's conduct in connection with Grier and his pretrial statement amounted to suppression of evidence. Defendant's contention involves the progression and effect of several pretrial motions and orders dealing with defense discovery; it was presented to the trial court, which rejected it; and, having examined it on the appeal, we conclude that no error appears in this regard. In all events, the footnoted statement stands.

    145

    [18] We have in mind the fact that, while the grand jury testimony of Ross no longer bears upon the kidnaping charge of which defendant was acquitted, it remains relevant to the homicide charge upon which he will presumably be retried.

    146

    [19] Defendant is a black person.

    147

    [20] Defendant points out that the number of prospective jurors examined does not produce a definitive percentage as stated here, because there were others on the panel; consequently, he argues. the actual percentage of black persons on the full panel cannot be determined. The percentage stated here, however, is the only figure supported by the record he was obligated to make.

    148

    [21] One black man, not a resident of West Oakland, served on the jury.

  • 4 II.B.i Acts v. Omissions

    When is not acting an act?

    One of the most fraught distinctions in criminal law has been the act/omission distinction. For most people, punishing inaction in certain situations seems to flow naturally out of the sense of blameworthiness that underpins much of criminal law. However, defining the criminal act when it is not an act raises problems.

    As a general rule, there is no criminal liability for omissions. The following cases and readings consider the exceptions to this rule, whether they arise from statutorily created duties, special moral relationships, contractual relationships, or the voluntary assumption of responsibilities. As you will see, in some cases, criminalizing omissions likely tracks your moral intuitions. In others, you may feel more conflicted. Consider why different scenarios imply different levels of blameworthiness, but also what goals or behaviors society may seek to promote by assigning affirmative duties to act.

    • 4.1 Pope v. State

      1
      284 Md. 309 (1979)
      2
      396 A.2d 1054
      3
      JOYCE LILLIAN POPE
      v.
      STATE OF MARYLAND
      4
      [No. 11, September Term, 1978.]
      5

      Court of Appeals of Maryland.

      6
      Decided January 19, 1979.
      7

       

      8

      [311] The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

      9

      George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant.

      10

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.

      11

      ORTH, J., delivered the opinion of the Court. ELDRIDGE, J., filed an opinion concurring in part and dissenting in part at page 354 infra.

      12

      Joyce Lillian Pope was found guilty by the court in the Circuit Court for Montgomery County under the 3rd and 5th [312] counts of a nine count indictment, no. 18666. The 3rd count charged child abuse, presenting that "on or about April 11, 1976,... while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, a minor child under the age of eighteen years [she] did unlawfully and feloniously cause abuse of said minor child in violation of Article 27, Section 35A of the Annotated Code of Maryland...." The 5th count charged misprision of felony under the common law, alleging that on the same date she "did unlawfully and wilfully conceal and fail to disclose a felony to wit: the murder of Demiko Lee Norris committed by Melissa Vera Norris on April 11, 1976, having actual knowledge of the commission of the felony and the identity of the felon, with the intent to obstruct and hinder the due course of justice and to cause the felon to escape unpunished...."[1]

      13

      On direct appeal the Court of Special Appeals reversed the judgment entered on the child abuse conviction and affirmed the judgment entered on the misprision of felony conviction.[2] Pope v. State, 38 Md. App. 520, 382 A.2d 880 (1978). We granted Pope's petition and the State's cross-petition for a writ of certiorari. We affirm the judgment of the Court of Special Appeals with respect to the 3rd count, child abuse. We reverse the judgment of the Court of Special Appeals with [313] respect to the 5th count, misprision of felony. We remand to that court with direction to remand to the Circuit Court for Montgomery County for the entry of a judgment of acquittal on the third count and dismissal of the fifth count.

      14
      ISSUES FOR DECISION
      15
      I. The sufficiency of the evidence to sustain the conviction of Pope of the crime of child abuse as (1) a principal in the first degree, or (2) a principal in the second degree.
      16
      II. The status in Maryland of the crime of misprision of felony.
      17
       
      18
      THE EVIDENCE
      19

       

      20

      The evidence adduced at the trial[3] established that Demiko Lee Norris, three months old, died as a result of physical injuries inflicted by his mother, Melissa Vera Norris.[4] The abuse by the mother occurred over a period of several hours on a Sunday morning at Pope's home and in Pope's presence. Pope's involvement in the events leading to the child's abuse and death began on the preceding Friday evening when she and Melissa, with the child, were driven home by Pope's sister, Angela Lancaster, from a service held at the Christian Tabernacle Church. When they arrived at Melissa's grandparents' home, where Melissa was living, Melissa refused to enter the house, claiming that it was on fire, although in fact it was not. During the evening, Melissa had sporadically indicated mental distress. "She would at times seem caught up in a religious frenzy with a wild look about [314] her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions." Pope, 38 Md. App. at 531. Pope agreed to take Melissa and the child into her home for the night because she did not want to put them "out on the street," and Angela would not let them stay in her home. Melissa had no money and Pope and Angela bought food and diapers for the baby. That evening Pope cleaned and dried the baby and inquired of Melissa about a bad rash he had. Melissa slept in Pope's bedroom. Pope kept the baby with her in the living room, telling Melissa: "[Y]ou can go to sleep ... I'll be up, I'll just stay up, I'll watch the baby...." She explained in her testimony: "And I don't know why it was just, just a funny feeling that I had, you know, and ever since the baby was there I just kept it close to me for some reason." Pope fed the baby and fixed a bed for it in a dresser drawer. She stayed with the baby to care for him during the night because he was spitting up. She could not sleep while Melissa was there.

      21

      The next morning, awakened by the crying of the child, Pope fed him. Throughout the day Melissa "changed back and forth." When Melissa was "herself" she took care of her child. When Melissa thought she was God, Pope undertook the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God.... I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." At a baby shower Saturday evening at the home of Pope's mother, Melissa again reverted to being God, looking wild, speaking loudly, preaching and giving orders. Melissa and the baby returned to Pope's home. Melissa put the child in bed with her, but Pope thought it better that the child not remain there. She was afraid Melissa would roll over and "smother it to death." She told Melissa: "I'll just take the baby in [the living room] ... I'll watch it, I'll get up and feed it... I don't mind." The next morning, Sunday, at about 4:30 o'clock, Pope prepared the baby's bottle and fed him. When Melissa got up, Pope suggested that she go back to bed. Melissa behaved [315] normally for awhile. Then her "episodes of `changing to God' became more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of [Pope's] son, and fearful that by breaking in Melissa would frighten him, [Pope] unfastened the door to permit entry. Loudly exhorting Satan to leave the premises, Melissa `anointed' [Pope's] son with oil, placing some of the oil in the child's mouth. She subsequently repeated the process with [Pope's] daughter. When dressed, [Pope's] children left the house expeditiously, lingering only long enough to embrace their mother." Pope, 38 Md. App. at 531.

      22

      During a lucid period, Melissa prepared to go to church. She got a tub of water to bathe the baby. What next occurred is graphically described in the opinion of the Court of Special Appeals:

      23
      "Then, from her suddenly changed voice and appearance, [Pope] knew Melissa had changed again to `God.' Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable. In her religious frenzy of apparent exorcism, Melissa poked the child's vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag." Id.
      24

       

      25

      Continuing to talk and stomp, Melissa began to squeeze the baby. Then, holding the child by the neck with one hand, she took him into the bathroom, acting like she did not know that Pope was present. When she first started this abuse, Melissa, in her "God voice," called Pope and asked her: "Didn't I give you eyes to see?" Pope noticed that Melissa's finger nails were "real long," and she said to Melissa: "[H]ow do you [316] handle a baby with such long nails," but Pope did nothing. She admitted that she knew at some point that Melissa was hurting the baby and was "fearful, amazed and shocked at the `unbelievable' and `horrible' thing that was happening."

      26

      Melissa's frenzy diminished. Angela came to the house to take them to church. Pope did not tell Angela what happened — "I could not get it out." Angela asked her what was wrong, and Pope said: "[I]t's Melissa, the baby...." She locked the door at Angela's direction so Angela's children would stay in the yard with Pope's children. Angela wrapped the child in a towel, raised him over her head and prayed.

      27

      Pope, Melissa and Angela left with the child to go to church. At Melissa's request they stopped by her grandfather's house, arriving about 2:00 p.m. Pope told him the child was dead, but he did not believe her because all three were acting so strangely. He refused to take or look at the baby. The three women with the child went to Bel Pre Health Center, picked up another member of the Christian Tabernacle congregation, telling her that "God has a job for you to do," and proceeded to the church. En route, they passed several hospitals, police stations and rescue squads. At the church, the child was given to, or taken by the Reverend Leon Hart, who handed him to Mother Dorothy King for her prayers. She discovered that the baby's body was cool and sent for ambulance assistance. Police and rescue personnel arrived and determined that the child was dead. There was expert medical testimony that the child had died sometime during the period of fifteen minutes to several hours after it was injured. The medical expert expressed no opinion as to whether the child could have been successfully treated if the injury had been reported sooner.

      28

      The police questioned Melissa in Pope's presence. Pope did not contradict Melissa's denial of abusing the child. In fact, Pope, in response to inquiry by the police, said that the baby did not fall, and told them that she had not seen Melissa strike the baby. She explained this untruth in subsequent statements to the police: "[I]t was her body in the flesh, but it wasn't her, because it was something else."

      29

      Pope, Melissa and Angela attended the evening service at the church. Melissa reverted to God during the service and [317] Reverend Hart restrained her and attempted to convince her that she was not Jesus Christ. Melissa refused to go to her grandfather's home and returned home with Pope. The next morning Pope was again interviewed at the police station and wrote a full explanation of what had happened. She later made an oral statement which was recorded.

      30
       
      31
      I
      32
       
      33
      THE CRIME OF CHILD ABUSE
      34
       
      35
      The Statute
      36

       

      37

      The General Assembly first evidenced its concern with the mistreatment of children fifteen years ago when it added § 11A to Art. 27 of the Maryland Code,[5] later codified as § 35A of that article,[6] declaring an assault on a child to be a felony. The statute in its entirety provided:

      38
      "Any parent, adoptive parent or other person who has the permanent or temporary care or custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the Penitentiary."
      39

       

      40

      The Legislature's increasing interest in child abuse is reflected in the amendment from time to time of the seminal statute.[7] The result is a comprehensive scheme to fulfill the legislative intent and purpose, expressed in 1973,[8] as "the protection of children who have been the subject of abuse by mandating the reporting of suspected abuse, by extending immunity to those who report in good faith, by requiring prompt investigations of such reports and by causing [318] immediate, cooperative efforts by the responsible agencies on behalf of such children." Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 35A. All of these were, of course, imposed over the felonious crime of child abuse. See subsections (a) through (j).

      41
       
      42
      The Nature of Child Abuse
      43

       

      44

      As we have seen, when the crime was first created by the General Assembly it comprised the malicious beating, striking or otherwise mistreating a child to such degree as to require medical treatment. We pointed out in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976), that by the terms of the enactment it did not reach acts "not constituting, in one form or another, an assault on a child." Id. at 423. Acts 1973, ch. 835 repealed the "maliciously beats, strikes or otherwise mistreats" test of child abuse and substituted in its place a new and different measure of the offense. The 1973 amendment added a definition subsection to § 35A. Subsection (b) 7 provided that whenever "abuse" was used in § 35A, it shall mean "any physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts...." Acts 1974, ch. 554 designated this meaning as item (A) of ¶ 7 and expanded the definition of child abuse by adding item (B) so as to include in the offense "any sexual abuse of a child, whether physical injuries are sustained or not." The amendment also added ¶ 8 defining "sexual abuse" to mean "any act or acts involving sexual molestation or exploitation, including but not limited to incest, rape, carnal knowledge, sodomy or unnatural or perverted sexual practices on a child...." Acts 1977, ch. 290, substituted "or sexual offense in any degree" for "carnal knowledge" in ¶ 8.[9]

      45

      We considered the scope of item A, subsection (b)7 in Fabritz. Applying the rules of statutory construction, 276 Md. [319] at 421-423, we thought "it evident that the Legislature plainly intended to broaden the area of proscribed conduct punishable in child abuse cases." Id. at 423-424. We said:

      46
      "Its use in the amended version of § 35A of the comprehensive phraseology `who causes abuse to' a minor child, coupled with its broad two-pronged definition of the term `abuse,' supports the view that the Legislature, by repealing the narrow measure of criminality in child abuse cases then provided in § 35A, and redefining the offense, undertook to effect a significant change of substance in the scope of the statute's prohibitions. In making it an offense for a person having custody of a minor child to `cause' the child to suffer a `physical injury,' the Legislature did not require that the injury result from a physical assault upon the child or from any physical force initially applied by the accused individual; it provided instead, in a more encompassing manner, that the offense was committed if physical injury to the child resulted either from a course of conduct constituting `cruel or inhumane treatment' or by `malicious act or acts.'" Id. at 424.
      47

       

      48

      We found that the failure of the mother to seek or obtain any medical assistance for her child, although the need therefor was obviously compelling and urgent, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child by reason of the original assault by another. The act of omission by the mother "constituted a cause of the further progression and worsening of the injuries which led to [the child's] death; and that in these circumstances [the mother's] treatment of [the child] was `cruel or inhumane' within the meaning of the statute and as those terms are commonly understood." Id. at 425-426. We therefore vacated the judgment of the Court of Special Appeals, which in Fabritz v. State, 24 Md. App. 708, 332 A.2d 324 (1975), had [320] reversed the judgment of the trial court entered upon the conviction of the mother of child abuse.[10]

      49
       
      50
      Responsibility for Abuse of a Child
      51

       

      52

      In Fabritz we went no farther than to determine that the Legislature intended that the "cause" of an injury may include an act of omission so as to constitute cruel or inhumane treatment, in that case the failure of the mother to seek or obtain medical assistance for her child who had been abused by another. Fabritz did not go to the class of persons to whom the statutory proscription applies, as the accused there was a "parent," the victim's mother, expressly designated in the statute.

      53

      [321] We have seen that the statute as originally enacted concerned "[a]ny parent, adoptive parent or other person, who has the permanent or temporary care or custody of a minor child...." Acts 1963, ch. 743. This has been once amended to bring within the ambit of the statute any person who has "responsibility for the supervision of a minor child." Acts 1966, ch. 221. Thus, since 1 June 1966,

      54
      "[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years[[11]] who causes abuse to such minor child shall be guilty of a felony...." § 35A(a).
      55

       

      56

      Persons subject to the statute are designated in those terms also in subsection (b) 7 (A) defining abuse and in subsection (b)8 defining sexual abuse.

      57

      In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we discussed the class of persons to whom § 35A applies, in rejecting the contention that the statute was vague and therefore constitutionally defective for the reason that it failed to define adequately that class. Bowers urged that the statute was too indefinite to inform a person who is not a parent or adoptive parent of a child whether he comes within the ambit of the statute. He argued that no one in such position is capable of ascertaining whether the statute is aimed only at persons who have been awarded custody by judicial decree or includes also those who may simply be caring for a child in place of the parent. We were of the view that the General Assembly intended that the statute apply to persons who stand in loco parentis to a child. We said: "Had the Legislature wished to narrow application of the child abuse law to those who had been awarded custody or control by court order, it could readily have done so in explicit language to that end." Id. at 130. We observed that Bowers' "own testimony amply established that he had assumed `the care or [322] custody or responsibility for the supervision' of his step-daughter, and thus stood in loco parentis with respect to her." Id.

      58

      Bowers' challenge centered on the "temporary care or custody" provision of the statute. It does not follow from our holding that "permanent or temporary care or custody" is synonymous with "responsibility for the supervision of." Such was clearly not the legislative intent, because, as we have seen, the latter provision was added by amendment three years after the former had been written into the law. There would have been no need to do so had the Legislature deemed the two provisions to have the same meaning.

      59

      The child abuse statute speaks in terms of a person who "has" responsibility for the supervision of a minor child. It does not prescribe how such responsibility attaches or what "responsibility" and "supervision" encompass. A doubt or ambiguity exists as to the exact reach of the statute's provision with respect to "has responsibility for the supervision of," justifying application of the principle that permits courts in such circumstances to ascertain and give effect to the real intention of the Legislature. See Fabritz at 423; Clerk v. Chesapeake Beach Park, 251 Md. 657, 663-664, 248 A.2d 479 (1968); Domain v. Bosley, 242 Md. 1, 7, 217 A.2d 555 (1966). Bowers equates "permanent or temporary care or custody" with "in loco parentis," but "responsibility for the supervision of" is not bound by certain of the strictures required for one to stand in place of or instead of the parent. A person in loco parentis is "charged, factitiously, with a parent's rights, duties, and responsibilities." Black's Law Dictionary (4th ed. 1951). "A person in loco parentis to a child is one who means to put himself in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child. Or, as defined by Sir Wm. Grant, Master of the Rolls, a person in loco parentis is one, `assuming the parental character and discharging parental duties.' Weatherby v. Dixon, 19 Ves. 412.... There must be some indication, in some form, of an intention to establish it. It is a question of intention." Von der Horst v. Von der Horst, 88 Md. 127, 130-131, 41 A. 124 (1898).

      60
      [323] "The term `in loco parentis,' according to its generally accepted common law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties. Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.), cert. denied, 331 U.S. 850 (1947).
      61
      "This relationship involves more than a duty to aid and assist, more than a feeling of kindness, affection or generosity. It arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child." Fuller v. Fuller, 247 A.2d 767 (D.C. 1968), appeal denied, 418 F.2d 1189 (1969).
      62

       

      63

      A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child. "Responsibility" in its common and generally accepted meaning denotes "accountability," and "supervision" emphasizes broad authority to oversee with the powers of direction and decision. See American Heritage Dictionary of the English Language (1969); Webster's Third New International Dictionary (1968). As in the case of care or custody of a minor child under the child abuse law, a judicial decree is not necessary to obtain responsibility for the supervision of a minor child under that statute. Had the Legislature wished to narrow application of that law to those who had been charged with responsibility for the supervision of a child by court order, it could readily have done so in explicit language to that end. See Bowers, 283 Md. at 130. Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose [324] responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it. So it is that a baby sitter temporarily has responsibility for the supervision of a child; the parents grant the responsibility for the period they are not at home, and the sitter accepts it. And it is by mutual consent that a school teacher has responsibility for the supervision of children in connection with his academic duties. On the other hand, once responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct. The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent. But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices.

      64

      Under the present state of our law, a person has no legal obligation to care for or look after the welfare of a stranger, adult or child.

      65
      "Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself.... A moral duty to take affirmative action is not enough to impose a legal duty to do so." W. LaFave & A. Scott, Criminal Law 183 (1972).
      66

       

      67

      See Clark & Marshall, A Treatise on the Law of Crimes § 10.02 (7th ed. 1967). The legal position is that "the need of one and the opportunity of another to be of assistance are not alone sufficient to give rise to a legal duty to take positive action." R. Perkins, Criminal Law 594-595 (2d ed. 1969). Ordinarily, a person may stand by with impunity and watch another being murdered, raped, robbed, assaulted or otherwise unlawfully harmed. "He need not shout a warning to a blind man headed for a precipice or to an absentminded one walking into a gunpowder room with a lighted candle in [325] hand. He need not pull a neighbor's baby out of a pool of water or rescue an unconscious person stretched across the railroad tracks, though the baby is drowning, or the whistle of an approaching train is heard in the distance." LaFave & Scott at 183. The General Assembly has enacted two "Good Samaritan" statutes which afford protection to one who assists another in certain circumstances. Those statutes, however, impose no requirement that assistance be rendered.[12]

      68

      In the face of this status of the law we cannot reasonably conclude that the Legislature, in bringing a person responsible for the supervision of a child within the ambit of the child abuse law, intended that such responsibility attach without the consent criteria we have set out. Were it otherwise, the consequences would go far beyond the legislative intent. For example, a person taking a lost child into his home to attempt to find its parents could be said to be responsible for that child's supervision. Or a person who allows his neighbor's children to play in his yard, keeping a watchful eye on their activities to prevent them from falling into harm, could be held responsible for the children's supervision. Or a person performing functions of a maternal nature from concern for the welfare, comfort or health of a child, or protecting it from danger because of a sense of moral obligation, may come within the reach of the act. In none of these situations would there be an intent to grant or assume the responsibility contemplated by the child abuse statute, and it would be incongruous indeed to subject such persons to possible criminal prosecution.

      69

      [326]

      70
      The Sufficiency of the Evidence
      71

       

      72

      The trial court found Pope guilty of the crime of child abuse as a principal in the first degree, and alternatively, as a principal in the second degree. A principal in the first degree is the one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is actually or constructively present when a felony is committed, and who aids or abets in its commission. See Camphor v. State, 233 Md. 203, 205, 196 A.2d 75 (1963); Thornton v. State, 232 Md. 542, 544, 194 A.2d 617 (1963); Veney v. State, 225 Md. 237, 238, 170 A.2d 171 (1961); Agresti v. State, 2 Md. App. 278, 280, 234 A.2d 284 (1967); 4 W. Blackstone, Commentaries [*]34; Clark & Marshall, A Treatise on the Law of Crimes §§ 8.01-8.02 (7th ed. 1967); L. Hochheimer, Crimes and Criminal Procedure §§ 31-32 (1st ed. 1897); R. Perkins, Criminal Law 656 and 658 (2d ed. 1969).[13]

      73

      In convicting Pope, the trial court was "satisfied beyond a reasonable doubt that under the doctrine of [Fabritz] ..., [she] is a principal [in the first degree] and is guilty of child abuse." It further held, however: "If this interpretation of Fabritz is in error, then [Pope] is guilty as a principal in the second degree." On direct appeal, the Court of Special [327] Appeals applied Maryland Rule 1086 and set aside the judgment. The rule provides that when a criminal case is tried without the intervention of a jury, the Court of Special Appeals shall review both the law and the evidence but "the judgment of the [trial] court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses." The appellate court's function "is merely to decide whether there was sufficient evidence, or proper inferences from the evidence, from which the trier of fact could properly draw the conclusion of the [accused's] guilt, beyond a reasonable doubt." Brooks v. State, 277 Md. 155, 161-162, 353 A.2d 217 (1976), and cases therein cited. The trial court, as the trier of facts, is not only the judge of the witness's credibility, but is also the judge of the weight to be attached to the evidence. Id. The Court of Special Appeals determined that the evidence was not legally sufficient to sustain the conviction of Pope either as a principal in the first degree or a principal in the second degree. The evidence was deficient with regard to her being a principal in the first degree in that it was not sufficient for the trier of fact to find beyond a reasonable doubt that she was within the class of persons subject to the prohibitions of the child abuse statute. Thus, the teaching of Fabritz regarding "causing abuse" was in no event applicable. Pope v. State, 38 Md. App. at 538. It was deficient with regard to her being a principal in the second degree because, despite her presence during the commission of the felony, it was not sufficient for the trier of fact to conclude that she aided and abetted the actual perpetrator. Therefore, the judgment of the trial court on the evidence was clearly erroneous and had to be set aside. Id. at 539-541.

      74

      As did the Court of Special Appeals, we find evidentiary insufficiency with respect to the conviction of Pope of child abuse, both as a principal in the first degree and as a principal in the second degree, so that the judgment of the trial court on the evidence was clearly erroneous. We, therefore, affirm the judgment of the Court of Special Appeals. We explain why we find that the evidence was legally insufficient.

      75

      [328]

      76
      Principal in the First Degree
      77

       

      78

      As we have indicated, a person may be convicted of the felony of child abuse created by § 35A as a principal in the first degree upon evidence legally sufficient to establish that the person

      79
      (1) was
      80
      (a) the parent of, or
      81
      (b) the adoptive parent of, or
      82
      (c) in loco parentis to, or
      83
      (d) responsible for the supervision of
      84
      a minor child under the age of eighteen years, AND
      85
      (2) caused, by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of
      86
      (a) physical injury or injuries sustained by the child as the result of
      87
      i) cruel or inhumane treatment, or
      88
      ii) malicious act or acts by such person, or
      89
      (b) any act or acts by such person involving sexual molestation or exploitation whether or not physical injuries were sustained.
      90

       

      91

      Under the teaching of Fabritz, Pope's lack of any attempt to prevent the numerous acts of abuse committed by the mother over a relatively protracted period and her failure to seek medical assistance for the child, although the need therefor was obviously compelling and urgent, could constitute a cause for the further progression and worsening of the injuries which led to the child's death. In such circumstances, Pope's omissions constituted in themselves cruel and inhumane treatment within the meaning of the statute. See Fabritz, 276 Md. at 425-426. It follows that Pope would be guilty of child abuse if her status brought her within the class of persons specified by the statute. It being clear [329] that she was neither the child's parent nor adoptive parent, and there being no evidence sufficient to support a finding that she had "the permanent or temporary care or custody" of the child as that status was construed in Bowers v. State, supra, so as to be in loco parentis to the child, the sole question is whether she had "responsibility for the supervision of" the child in the circumstances. If she had such responsibility the evidence was legally sufficient to find her guilty of child abuse as a principal in the first degree.

      92

      The State would have us translate compassion and concern, acts of kindness and care, performance of maternal functions, and general help and aid with respect to the child into responsibility for the supervision of the child. The crux of its argument is that although Pope was not under any obligation to assume responsibility for the supervision of the child at the outset, "once she undertook to house, feed, and care for [the mother and child], she did accept the responsibility and came within the coverage of the statute." But the mother was always present.[14] Pope had no right to usurp the role of the mother even to the extent of responsibility for the child's supervision. We are in full accord with the view of the Court of Special Appeals that it could not "in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child's supervision and protection even while the child is in the very arms of its mother." Pope, 38 Md. App. at 538. It would be most incongruous that acts of hospitality and kindness, made out of common decency and prompted by sincere concern for the well-being of a mother and her child, subjected the Good Samaritan to criminal prosecution for abusing the very child he sought to look after. And it would be especially ironic were such criminal prosecution to be predicated upon an obligation to take [330] affirmative action with regard to abuse of the child by its mother, when such obligation arises solely from those acts of hospitality and kindness.

      93

      The evidence does not show why Pope did not intervene when the mother abused the child or why she did not, at least, timely seek medical assistance, when it was obvious that the child was seriously injured. Whether her lack of action was from fear or religious fervor or some other reason is not clearly indicated. As the Court of Special Appeals correctly stated "[Pope's] testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference." Pope, 38 Md. App. at 532. The court observed that when Pope's sister arrived shortly after the acts of abuse and the mother's frenzy had diminished, Pope did not tell her sister what had occurred, although she claimed that she tried to but could not do so. But Pope's conduct, during and after the acts of abuse, must be evaluated with regard for the rule that although she may have had a strong moral obligation to help the child, she was under no legal obligation to do so unless she then had responsibility for the supervision of the child as contemplated by the child abuse statute. She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation. In the circumstances, the mother's acquiescence in Pope's conduct was not a grant of responsibility to Pope for the supervision of the child, nor was Pope's conduct an acceptance of such responsibility. "[Pope's] concern for the child [did] not convert to legal responsibility nor parental prerogatives." Pope, 38 Md. App. at 538. We hold that the evidence was not sufficient in law to prove that Pope fell within that class of persons to whom the child abuse statute applies. Thus it is that the judgment of the trial court that she was a principal in the first degree in the commission of the crime of child abuse was clearly erroneous and must be set aside.

      94

      The mental or emotional state of the mother, whereby at times she held herself out as God, does not change the result. We see no basis in the statute for an interpretation that a person "has" responsibility for the supervision of a child, if [331] that person believes or may have reason to believe that a parent is not capable of caring for the child. There is no right to make such a subjective judgment in order to divest parents of their rights and obligations with respect to their minor children, and therefore, no obligation to do so.[15]

      95
      Principal in the Second Degree
      96

       

      97

      Pope was actually present when the felony was committed, but, we have determined, she was not a perpetrating actor. She would be a principal in the second degree if she aided or abetted in the commission of the crime. The principal in the second degree differs from the principal in the first degree in that he does not do the deed himself or through an innocent agent but in some way participates in the commission of the felony by aiding, commanding, counseling or encouraging the actual perpetrator.[16] R. Perkins, Criminal Law 658-659 (2d ed. 1969); Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Unless he contributed actual aid it is necessary that his approval should be manifested by some word or act in such a way that it operated on the mind of the perpetrator. Even the secret acquiescence or approval of the bystander is not sufficient to taint him with the guilt of the crime. "Counsel, command or encouragement may be in the form of words or gestures. Such a purpose `may be manifested by acts, words, signs, motions, or any conduct [332] which unmistakably evinces a design to encourage, incite, or approve of the crime.' Promises or threats are very effective for this purpose, but much less will meet the legal requirement, as where a bystander merely emboldened the perpetrator to kill the deceased.... One may also encourage a crime by merely standing by for the purpose of giving aid to the perpetrator if necessary, provided the latter is aware of this purpose. Guilt or innocence of the abettor ... is not determined by the quantum of his advice or encouragement. If it is rendered to induce another to commit the crime and actually has this effect, no more is required." Perkins at 659. "To be guilty as a principal in the second degree, a criminal intent is necessary." Clark & Marshall § 8.02. "Aid or encouragement to another who is actually perpetrating a felony will not make the aider or encourager guilty of the crime if it is rendered without mens rea. It is without mens rea if the giver does not know or have reason to know of the criminal intention of the other.... In general it is the abettor's state of mind rather than the state of mind of the perpetrator which determines the abettor's guilt or innocence.... `[I]ntention' includes not only the purpose in mind but also such results as are known to be substantially certain to follow." Perkins at 662-663.

      98

      When the evidence here is viewed in the light of these criteria, it is patent that it was not legally sufficient to prove that Pope was a principal in the second degree. She neither actually aided the mother in the acts of abuse nor did she counsel, command or encourage her. The Court of Special Appeals pointed out the facts relied on by the trial court — that the events took place in Pope's home, that Pope responded to the commands of the mother, namely that she looked when told to look and came when called, that she voluntarily opened the door to her son's room so Melissa could reach him, and that she failed to interfere or question the mother's activity, even when the mother appeared rational — were simply not enough to meet the test. Pope, 38 Md. App. at 538-541.

      99

      The State concludes the argument in its brief:

      100
      "As is obvious from the evidence presented in this [333] case, [Pope] witnessed a terrible event. She stood by while Melissa Norris killed her three-month old son. [Pope's] conduct during the beating ... should be held to be culpable."
      101

       

      102

      The evidence certainly showed that Pope "witnessed a terrible event" and that she "stood by" while the mother killed the child. But the culpability for her conduct during the abuse of the child must be determined strictly within the law or else the basic tenets of our system of justice are prostituted. There is an understandable feeling of outrage at what occurred, intensified by the fact that the mother, who actually beat the child to death, was held to be not responsible for her criminal acts. But it is the law, not indignation, which governs. The law requires that Pope's conviction of the felony of child abuse be set aside as clearly erroneous due to evidentiary insufficiency.

      103
       
      104
      II
      105
       
      106
      THE CRIME OF MISPRISION OF FELONY
      107

       

      108

      As we have indicated, a person may be convicted of a felony upon proof establishing that he committed the offense as a perpetrating actor (principal in the first degree), or that, being actually or constructively present, he did not himself commit the offense but aided and abetted in the commission of it (principal in the second degree). "`If he be present,' said Sir Matthew Hale, `and not aiding or abetting to the felony, he is neither principal nor accessory. If A and B be fighting and C, a man of full age, comes by chance, and is a looker on only, and assists neither, he is not guilty of murder or homicide, as principal in the second degree, but is a misprision, for which he shall be fined, unless he use means to apprehend the felon.'"[17] In the case before us, both the [334] trial court and the Court of Special Appeals believed that the misdemeanor of misprision of felony exists in Maryland today. The Court of Special Appeals expressly held "that misprision of felony was a crime at common law given life in Maryland by Art. 5 of the Declaration of Rights.[18] It rejected the contention that the crime "has become obsolete or abandoned by disuse" as "without merit." Pope, 38 Md. App. at 527.[19]

      109

      There is no Maryland legislative enactment which is declarative of the common law crime of misprision of felony or which may be deemed to have created a comparable offense. Therefore, if misprision of felony is a crime in this State, it is only because it was part of the common law of England to which the inhabitants of Maryland were constitutionally entitled and has survived to the present time.

      110

      We assume, arguendo, that misprision of felony was a crime under the common law of England, and that it became the law of this State pursuant to Art. 5 of the Declaration of Rights. The question is whether it is to be deemed an indictable offense in Maryland today. In determining the question, we look first to what misprision of felony is. According to Blackstone, the crime at common law consisted merely in the "concealment of a felony which a man knows, but never assented to; for if he assented this makes him either principal or accessory." 4 W. Blackstone, Commentaries [*]121. See Clark & Marshall, A Treatise on the Law of Crimes § 8.14 (7th ed. 1967); R. Perkins, Criminal Law 512 (2d ed. 1969); L. [335] Hochheimer, Crimes and Criminal Procedure § 39 (1st ed. 1897).

      111
      "[T]here is reason to believe that misprision of felony as defined by Blackstone is merely one phase of the system of communal responsibility for the apprehension of criminals which received its original impetus from William I, under pressure of the need to protect the invading Normans in hostile country, and which endured up to the Seventeenth Century in England. In order to secure vigilant prosecution of criminal conduct, the vill or hundred in which such conduct occurred was subject to fine, as was the tithing to which the criminal belonged, and every person who knew of the felony and failed to make report thereof was subject to punishment for misprision of felony. Compulsory membership in the tithing group, the obligation to pursue criminals when the hue and cry was raised, broad powers of private arrest, and the periodic visitations of the General Eyre for the purpose of penalizing laxity in regard to crime, are all suggestive of the administrative background against which misprision of felony developed. With the appearance of specialized and paid law enforcement officers, such as constables and justices of the peace in the Seventeenth Century, there was a movement away from strict communal responsibility, and a growing tendency to rely on professional police." 8 U. Chi. L. Rev. 338, 340-341 (1941) (footnotes omitted).
      112

       

      113

      Glazebrook, Misprision of Felony — Shadow or Phantom?, 8 Am. J. of Legal History 189 and 283 (1964) cites eminent authority that in England the offense fell "into desuetude." Id. at 300. According to Glazebrook, there was no "reported decision during the four hundred years since the offence first crept into a book," and no book before J. Chitty, A Practical Treatise on the Criminal Law (2d ed., London 1826) contained "a precedent of an indictment for misprision of felony." Id. In any event, if the crime had died, it was resurrected by the [336] House of Lords in H.L. Sykes v. Director of Public Prosecution, [1961] 3 All E.R. 33. Lord Denning stated that "it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete."[20] Id. at 40. Sykes acknowledged only two necessary elements, knowledge and concealment. "[M]isprision requires nothing active. The failure or refusal to disclose the felony is enough." Id. at 41. This followed the Blackstone definition.

      114

      The "revival" in England of the crime of misprision of felony was not generally welcomed. "Resistance to the crime culminated in the Seventh Report of the Criminal Law Revision Committee which recommended the abolition of the crime of misprision by eliminating all distinctions between felonies and misdemeanors. Misprision was replaced in the report by a new crime of withholding information with regard to certain offenses for a consideration other than restitution. [An agreement not to prosecute a felon in consideration of the return or compensation for goods stolen constitutes the common law offense of compounding a felony.] The Criminal Law Act of 1967 [c. 58 §§ 1 and 5] adopted these two recommendations and has been interpreted as eliminating the crime of misprision of felony in England." Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100-1101 (1974). See W. Wade and B. Lilliwhite, Annual Survey of Commonwealth Law 179 (1965); 10 Halsbury's Law of England ¶ 1201 (Supp. 1978).

      115

      The American experience paralleled that of England; the common law offense was simply not used. The status of the crime in the United States was summed up in Glazebrook, [337] How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307, n. 51 (1962):

      116
      "No court in the United States has been prepared to adopt the English doctrine in its simplicity, and hold that a mere failure to disclose knowledge of a felony is itself an offence: State v. Hann 40 N.J.L. 288 (1878) often cited as a solitary exception (e.g. (1945) 32 Va.L.R. 172) was a decision on a statutory, not the common law offence. In several states an attempt has been made to establish an offence intermediate between a simple concealment and that of the accessory after: e.g., State v. Wilson 80 Vt. 249: 67 Atl. 533 (1907); State v. Biddle 2 Harr (Del.) 401; 124 Atl. 804 (1923);[[21]] Carpenter v. State 62 Ark. 286; 36 S.W. 900 (1896); Commonwealth v. Lopes (Mass.) 61 N.E. (2d) 849 (1945); State v. Graham 100 La. 669 (1938): `... in the modern acceptation of the term, misprision of felony is almost if not exactly the same as that of an accessory after the fact' (p. 680). The utility of such an offence has not, however, been demonstrated: `... perhaps not a single case can be cited in which punishment for such connection with a felony has been inflicted in the U.S.' — 2 McClain Criminal Law, s. 938, cited at (1953) 6 S.Car.L.Q. 91. In Michigan, where the constitution incorporates the common law of crimes, the Supreme Court held that this does not extend to misprision of felony since it is `wholly unsuited to American criminal law and procedure as used in this State'; State v. Lefkovitz 294 Mich. 263, 293 N.W. 642 (1940); cf. U.S. v. Worcester 190 F. Supp. 565-566 (1960). And in interpreting the Federal statute (1 Stat. 113, s. 6) [18 [338] U.S.C. § 4 (1976)] which provides that `whoever having knowledge of the actual commission, of a felony cognizable by a court of the United States conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the U.S. shall be fined not more than $500 or imprisoned not more than three years or both,' it has been held that there must be some affirmative act of concealment, for instance the suppression of evidence, the harbouring of the criminal or the intimidation of witnesses, as well as the failure to disclose, for otherwise `the words conceals and would be effectively excised from the statute.' This interpretation was necessary to rescue the statute from an `intolerable oppressiveness,' for while federal statutes were few when it was enacted in 1790, the great increase in their number would make it unenforceable today if any other were adopted: Bratton v. U.S. 73 F. (2d) 795 [10th cir.] (1934); followed Neal v. U.S. 102 F. (2d) 643 (1939). [See also United States v. Farrer, 38 F.2d 515 (D. Mass.), aff'd, 281 U.S. 624 (1930).] This policy appears to have been successful. In 1956 the Fifth Circuit Court of Appeals noticed that `the annotations indicate no conviction for misprision [under the Federal statute] affirmed': Miller v. U.S., 230 F. (2d) 486. Cf. Bratton v. U.S.: `s. 146 was enacted April 30, 1790 ... and as far as the researches of court and counsel disclose, has been before the courts but twice in the 144 years of its life' (p. 797)."
      117

       

      118

      Perkins in the second edition (1969) of his Criminal Law states that "there seems to be no such offense as misprision of felony in most of the states." At 516. No such offense is included in the Model Penal Code (U.L.A.).[22] Four years ago, Florida followed Michigan's view announced in Lefkovitz, [339] supra, that misprision of felony was wholly unsuited to American criminal law. Holland v. State, 302 So.2d 806 (Fla. App. 1974). Cf. Mangeris v. Gordon, Nev., 580 P.2d 481, 483-484 (1978). Compare State v. Flynn, 100 R.I. 520, 217 A.2d 432 (1966), stating that the common law crime of misprision of felony was an indictable offense under the constitution and laws of Rhode Island.

      119

      A few states have enacted legislation creating a crime of misprision of felony substantially similar to the common law offense as defined in Sykes. See N.J.S.A. § 2A:97-2 (N.J. 1969); Ohio Rev. Code § 2921.22 (Spec. Supp. 1973); Wash. Rev. Code § 9.69.100 (1976). Two states had such statutes, see Me. Rev. Stat. title 17, § 902 (1964) and La. Rev.Stat. § 856 (1870), which were later repealed.

      120

      Maryland has been in line with the practically universal view of the other states. We find no case prior to the case sub judice in which a conviction of misprision of felony has reached an appellate court of this State and, insofar as can be ascertained from appellate dockets, there is only one other, State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978), see note 19, supra, in which the crime was charged. It is true, as observed by the trial court in the case at hand, that "[a] dearth of appellate cases is not proof that the crime is not charged at trial level," but in view of the numerous appeals in criminal causes spawned by present day procedures and rights afforded an accused, it is remarkable indeed that, if convictions upon charge of the crime have occurred, the present case was the first in which an appeal was filed. We think that it is a fair inference that the crime has been seldom charged, and, if charged, has resulted in very few, if any convictions. Furthermore, we observe that misprision of felony was not proposed as an offense by Maryland's Commission on Criminal Law.[23]

      121

      As it seems that misprision of felony has been virtually unused in Maryland since the Revolution gave birth to the [340] United States, our inquiry turns to the effect of non-use of a common law crime. Early on, in State v. Buchanan, 5 H. & J. 317, (1821), Buchanan, J. for the Court announced that no part of the common law of England to which the inhabitants of Maryland were constitutionally entitled should be excluded merely because it had not been introduced and used in the courts here. Id. at 358. See McGraw v. State, 234 Md. 273, 275-276, 199 A.2d 229, cert. denied, 379 U.S. 862 (1964). Judge Buchanan explained:

      122
      "[U]nlike a positive or statute law, the occasion or necessity for which may long since have passed away, if there has been no necessity before, for instituting a prosecution for conspiracy, no argument can be drawn from the non-user for resting on principles which cannot become obsolete, it has always potentially existed, to be applied as occasion should arise. If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offenses, and consequently no judicial adoption of either of these branches of the common law, could it therefore be contended, that there was now no law in the State for the punishment of such offenses?" 5 H. & J. at 358.
      123

       

      124

      This principle was affirmed by us, implicitly at least, in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) when we "recognized for the first time in Maryland the common law tort of intentional infliction of emotional distress, a tort previously unacknowledged or arguably abandoned by non-use." Pope, 38 Md. App. at 527. It does not follow, however, that because a common law crime does not become obsolete from mere non-use that it will always be viable. The opinion of the Court in Buchanan asserted that the provision in Art. 5 of the Declaration of Rights regarding entitlement to the common law of England without any restrictive words being used, had reference "to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it [341] as are inconsistent with the spirit of that instrument, and the nature of our new political institutions." 5 H. & J. at 358 (emphasis added). We have repeated that statement on a number of occasions, Dashiell v. Attorney General, 5 H. & J. 392, 401 (1822); State v. Bank of Maryland, 6 G. & J. 205, 226 (1834); Lickle v. Boone, 187 Md. 579, 582, 51 A.2d 162 (1947); McGraw v. State, supra, 234 Md. at 275-276; Gladden v. State, 273 Md. 383, 389, 330 A.2d 176 (1974). We put it this way in Denison v. Denison, 35 Md. 361, 378 (1872):

      125
      "It is true the common law of England has been adopted by the people of this State, but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions."
      126

      What this means is that the common law is subject to change. This is clearly apparent from its derivation and its very nature:

      127
      "The common law of England is derived from immemorial usage and custom, originating from Acts of Parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the Courts of justice of England." Buchanan, 5 H. & J. at 365 (opinion of Chase, C.J.).
      128

       

      129

      It may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides. See State v. Canova, 278 Md. 483, 486, 365 A.2d 988 (1976); Lutz v. State, 167 Md. 12, 15, 172 A. 354 (1934); Harrison v. State, 22 Md. 468, 487-488 (1864); Coomes v. Clements, 4 H. & J. 480, 481. It may also be changed by judicial decision. Chase, C.J., in his opinion in Buchanan, observed: "Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the courts of [342] justice, and is to be decided by them." 5 H. & J. at 365-366. He gave this rationale:

      130
      "The common law, like our acts of assembly, are subject to the control and modification of the Legislature, and may be abrogated or changed as the general assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the state,...." Id. at 366.[24]
      131

       

      132

      We said in Gilbert v. Findlay College, 195 Md. 508, 513, 74 A.2d 36 (1950) that "[t]his interpretation has been continuously adopted in this State, and was reaffirmed in the case of Price v. Hitaffer, 164 Md. 505, 510, 165 A. 470 [1933]." We asserted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106 (1951): "We have frequently held that it is our duty to determine the common law as it exists in this state...."[25] The doctrine of stare decisis does not preclude the exercise of this duty. We declared in White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966): "The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." Accord, Hearst Corp. v. St. Dep't of A. & T., 269 Md. 625, 643-644, 308 A.2d 679 (1973).

      133

      Parts of the common law have been found by judicial mandate to be inapplicable or obsolete in other states. For example, Flores v. Flores, 84 N.M. 601, 506 P.2d 345, 347 [343] (N.M. App.), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973) found that "liability free intentional injury to one's spouse does not reflect the circumstances in New Mexico." Swartz v. United States Steel, 293 Ala. 493, 304 So.2d 881, 885 (1974) held that the common law rule that a wife has no cause of action for loss of her consortium is inconsistent with the institutions of Alabama. Morganthaler v. First Atlantic National Bank, 80 So.2d 446 (Fla. 1955) rejected the English rule that a legatee may elect to receive cash when a testator directs his executor to purchase an annuity because it "dethrones a principle [that the intent of the testator controls] which is sacred to our way of life and fundamental in our concepts of right and justice." Id. at 452.

      134

      In exercising our duty to determine whether a common law crime presently exists in this State, mere non-use is not sufficient, as we have indicated, to conclude that the offense has become obsolete. But non-use, we believe, is not without significance. When an offense has lain virtually dormant for over two hundred years, it is difficult to argue that the preservation of society and the maintenance of law and order demand recognition of it. See Glazebrook, How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307-311 (1962). Perkins points out:

      135
      "The notion that misprision is needed, to prevent one who knows about another's felony from intentionally misleading investigating officers, is unfounded. If, when being questioned by officers who are investigating a felony, one who knows the facts intentionally misleads the officers by false statements and thereby `covers up' for the felon, he thereby makes himself an accessory to that felony after the fact. If he impedes the investigation by falsely saying he does not know about it, or by refusing to talk, he should be held to be guilty of obstructing justice. There is a wide difference between a mere failure to hunt up an officer and tell about a felony, on the one hand, and a refusal to cooperate with an investigating officer, on the other." R. Perkins, Criminal Law 517 (2d ed. 1969).
      136

       

      137

      [344] Even more relevant, however, to a consideration of whether a common law crime is applicable as compatible with our local circumstances and situation and our general codes of law and jurisprudence is the nature of the crime. The reason for the failure of common law misprision of felony to survive in the United States was well expressed by Chief Justice Marshall over a hundred and fifty years ago in Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-576 (1822) and thereafter noted by many commentators, text book authors and other authorities:

      138
      "It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."
      139

       

      140

      In England, according to Glazebrook in his critical consideration of Sykes v. Director of Public Prosecutions, supra, in 25 Mod. L. Rev. 301, the Criminal Law Commissioners in their Fifth Report in 1840 repeated and elaborated this criticism and observed:

      141
      "`The necessity of making such disclosures extends perhaps with greater force to the knowledge of a meditated crime, the perpetration of which may, by means of such disclosure, be prevented, than it does to the knowledge of one already committed.'" Id. at 301, citing, n. 3, "Parl. Pap. (1840) xx, p. 32; quoted, Williams, The Criminal Law: The General Part (2nd ed., London 1961), p. 423."
      142

       

      143

      Glazebrook opined that "[f]or more than a century misprision of felony has been an embarrassment to common lawyers," and feared that the decisions and speeches in the House of Lords in Sykes "afford only increased cause for this embarrassment." Id. at 301. The Court of Special Appeals relied on Sykes in holding that misprision of felony, as Sykes found it existed at common law, was currently an indictable crime in Maryland.[26] Glazebrook ably refuted Sykes, and we borrow extensively from him in the discussion which follows.

      144

      [345] Misprision of felony at common law is an impractically wide crime, a long-standing criticism which remains unanswered in Sykes. It has an undesirable and indiscriminating width:

      145
      "The real harshness lies in the fact that the duty to disclose arises when a person acquires knowledge of an offence, and this he may do quite involuntarily. A says to B: `Did you know that X stole a book from the library last week?' adding appropriate circumstantial details; or X says to B: `I stole some money yesterday; will you help me to repay it?' B is a friend of X; he wished to know nothing of X's misdeeds; and yet he is to be a criminal if he does not betray him. It is, furthermore, particularly difficult to defend a law which indiscriminately adds to the injuries of the victim of a crime the penalties of the criminal law should he or she wish to forgive and forget." 25 Mod. L. Rev. at 311.
      146

       

      147

      Misprision differs from almost all other common law offenses of omission:

      148
      "[T]he duty to act arises not because of the willing assumption of responsibility, the occupation of an office, or the ownership of property, but because of the mere possession of certain knowledge — knowledge possessed accidentally and undesired — knowledge which may indeed have been acquired through some malevolent person." Id.
      149

       

      150

      Glazebrook observes that although "[t]here may be crimes where the protection of the public requires that each offender be brought to justice however reluctant his victims, his friends, or those who have him in their care, may be to do so, ... the line which separates them from all other offences is not the line which separates felonies from misdemeanors." Id. [346] at 312. This is particularly true with respect to Maryland where the distinction between felony and misdemeanor is a hodgepodge, following neither rhyme nor reason.

      151

      Under Sykes, no active step need be taken to conceal the felony (it is only thus that it remains quite distinct from the crime of accessory after the fact), and the concealment need bring no benefit to the accused.[27] But three fundamental questions remained: when does the duty to reveal a felony arise; how is that duty discharged; and does a relationship with the felon prevent the duty arising?[28]

      152

      It seems that the duty arises when "a man knows" of the commission of a felony. When, then, can a man, be said to know and what is it that he must know? Lord Goddard held that there must be disclosure when the knowledge a man has "is so definite that it ought to be disclosed. A man is neither bound nor would he be wise to disclose rumours or mere gossip, but, if facts are within his knowledge that would materially assist in the detection and arrest of a felon, he must disclose them as it is a duty he owes to the state." Sykes at 46. Lord Goddard left the matter to the jury as a question of fact. Glazebrook suggests that "unless the jury is to be entirely uncontrolled, it has to be told how precise and certain the accused's knowledge must have been before he can be convicted." 25 Mod. L. Rev. at 313. Is the duty to be confined to felonies committed in the presence of the accused, and, if not, is hearsay sufficient? Should the felon's own admission, standing alone, be enough? Knowledge of the commission of a crime is an ingredient of the offenses of accessory after the fact and receiving stolen goods, but, unlike misprision, they require a positive act. It is reasonable, in such circumstance, to require a person who has reason to believe something is [347] wrong to inquire further before embarking on some course of conduct, and to hold that he fails to do so at his peril. "If this rule is applied to misprision, two duties are imposed: a duty to disclose knowledge of a felony, and a duty also to make inquiries to resolve a suspicion concerning the commission of a felony." Id. To paraphrase Glazebrook, must the inhabitants of Maryland become detectives as well as informers?

      153

      Sykes fails to provide a working rule for what the accused must know. There was a direct conflict between Lord Denning and Lord Morton into which their brethren did not enter. Discussing knowledge, Lord Denning said:

      154
      "The accused man must know that a felony has been committed by someone else. His knowledge must be proved in the way in which the prosecution have been accustomed in other crimes when knowledge is an ingredient, such as receiving, accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it. He need not know the difference between felony and misdemeanour — many a lawyer has to look in the books for the purpose...." Sykes at 41.
      155

       

      156

      Glazebrook comments: "This leaves it largely a matter of chance whether misprision is committed or not." 25 Mod. L. Rev. at 314. That is, on the one hand, it must have been a felony of which the accused knew, but on the other hand, he need not know whether the crime was a felony or a misdemeanor. According to Lord Denning, it would be enough that the accused knew that a serious offense had been committed if it turns out to be a felony — "a lawyer on turning up the books sees it is a felony...."

      157
      "This requirement that it must be a serious offence disposes of many of the supposed absurdities, such [348] as boys stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police." Sykes at 42.
      158

       

      159

      This rationale was based on the view that what distinguishes a felony from a misdemeanor is that a felony is a serious offense, "an offence of an `aggravated complexion'.... Felonies are the serious offences. Misdemeanours are the less serious." Id. This introduced a limitation Lord Morton was not willing to accept. Id. at 46-47. In any event, the limitation added the further uncertainty of a trier of fact's view of the gravity of the crime to be reported. 25 Mod. L. Rev. at 314. And, we observe, the foundation for the limitation is weak indeed when considered in light of the categories of felonies and misdemeanors adopted in this State. Sykes avoids what account is to be taken of excuses offered by an apparent felon. For example, "[i]n cases of larceny, may the citizen be satisfied by any claim of right that is made, or must it be weighed, and where suspicion remains this communicated to the police? ... The [Sykes] recognition of misprision means, therefore, the imposition not of a duty to disclose knowledge of the commission of a felony, but of a duty to disclose suspicions of the commission of a felony...." Id. at 314-315. There are no criteria for determining which suspicions are to give rise to a duty, and so to criminal liability.

      160

      When the duty to disclose has arisen, it is not clear how it is discharged. It would be logical that once the authorities are in possession of all the information concerning a felony, a citizen's duty to disclose his own knowledge ceases. So there is an added element of chance — "the chance that the police already know." Id. at 315. Lord Denning saw the duty as requiring a citizen "to disclose to proper authority all material facts known to him relative to the offence. It is not sufficient to tell the police that a felony has been committed. He must [349] tell the name of the man who did it, if he knows it;[[29]] the place, and so forth. All material facts known to him.... If he fails or refuses to perform this duty when there is a reasonable opportunity available to him to do so, then he is guilty of misprision." Sykes at 42. This was not sufficient for Lord Goddard. He thought that "facts ... within his knowledge that would materially assist in the detection and arrest of a felon" must be disclosed as a duty owed to the State. Id. at 46. "Thus if a man disclosed all he knew about the commission of a felony and yet did not disclose the whereabouts of the felon he would be acquitted by Lord Denning and convicted by Lord Goddard." 25 Mod. L. Rev. at 315.

      161

      Their lordships agreed that the questions of when the knowledge must be revealed and how much trouble must be taken to reveal it were for the jury. Glazebrook is critical of this as assigning unsuitably vague questions to the trier of fact:

      162
      "If a man is to be punished for not doing something, he ought to know precisely what is expected of him. The standard which he fails at his peril to attain ought not to be left to be fixed after the event by the whim of a particular jury. Formulae that pass muster in determining the liability of one who engages in a dangerous course of conduct are not always suited to crimes of pure omission." Id. at 316.
      163

       

      164

      Only Lord Denning considered relationship with the felon with respect to the duty to disclose:

      165
      "Non-disclosure may be due to a claim of right made in good faith. For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor [350] and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student. But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported." Sykes at 42.
      166

       

      167

      Glazebrook finds this to be "a singularly unhappy instance of creative judicial activity, for a defence grounded on a `claim of right made in good faith' is in this context inapt, and the choice of relationship perverse." 25 Mod. L.R. at 317. He explains:

      168
      "A person advancing a defence of `claim of right' pleads that he mistakenly thought that the law recognised in him a right to act in the way he did. If his defence is accepted, his mistake will be benevolently viewed, and he is excepted from criminal liability. The defence is thus founded on the mistake, on the claim, not the right, and disappears when the mistake is corrected.... In short, if the crime is to be limited, there must be a categorical rule that doctors and the like are under no duty to disclose their patients' felonies." Id.
      169

       

      170

      As to the choice of exempt relationships

      171
      "[t]he exclusion in misprision of `close family or personal ties' is utterly callous and certainly futile: how can the relation between doctor and patient, an employer and his servant, be thought more sacred, more deserving of respect and consideration — even by the law — than that between husband and wife, between father and son? By what standard is it unreasonable to expect an employer to report his servant's crimes to the police, and yet proper that a son should betray his father?" Id. at 318.
      172

       

      173

      [351] We observe that common law misprision is not only beset with practical defects but may implicate constitutional privileges. To sustain the Fifth Amendment right against self-incrimination,[30] "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure might result." Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814 (1951). The privilege extends not only to information that would itself support a conviction, but "likewise embraces those which would furnish a link in the chain of evidence to prosecute the claimant...." Id. at 486. See United States v. King, 402 F.2d 694 (9th Cir.1968), reversing conviction of federal misprision on Fifth Amendment grounds. We note also that it has been suggested that the federal misprision statute may involve the right of privacy. In United States v. Worcester, 190 F. Supp. 548, 566 (D. Mass. 1961), Judge Wyzanski, discussing the federal statute, said:

      174
      "To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that `as far as possible privacy should be respected.' There is `a strong reluctance on the part of judges and legislators to sanction invasion of privacy in the detection of crime.' There is `a general sentiment that the right to privacy is something to be put in balance against the enforcement of the law.' Sir Patrick Devlin, The Enforcement of Morals, p. 19."
      175

       

      176

      See Shannonhouse, Misprision of a Federal Felony: Dangerous Relic or Scourge of Malfeasance, 4 U. Balt. L. Rev. 59 (1974), calling for "excisement from the criminal code" of the federal crime. Compare Goldberg, Misprision of Felony: An Old Concept in New Context, 52 A.B.A.J. 148 [352] (1966), and Comment, Misprision of Felony: A Crime Whose Time Has Come, Again, 28 U. Fla. L. Rev. 199 (1975).

      177

      We have proceeded on the assumption that the House of Lords was correct in concluding in Sykes that "there is and always has been an offense of misprision of felony...." Sykes at 40. We are persuaded, finding no sound reason not to be, that their lordships' definition of the offense and the composition of its elements properly reflected the crime as it existed at common law. We are satisfied, considering its origin, the impractical and indiscriminate width of its scope, its other obvious deficiencies, and its long non-use, that it is not now compatible with our local circumstances and situation and our general code of laws and jurisprudence. Maintenance of law and order does not demand its application, and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it. If the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and, hopefully, with adequate safeguards.[31] We believe that the common law offense is not acceptable by today's standards, and we are not free to usurp the power of the General Assembly by attempting to fashion one that would be. We hold that misprision of felony is not a chargeable offense in Maryland.

      178
      III
      179

       

      180

      We have reversed Pope's conviction of the felony of child abuse because the evidence was insufficient to sustain the verdict. She may not be tried again for that crime. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141 (1978); Greene v. [353] Massey, 437 U.S. 19, 98 S.Ct. 2151 (1978); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978).

      181

      As we have held that the crime of misprision of felony does not now exist in Maryland, Pope may not, of course, be retried on a charge of that crime.

      182
      IV
      183

       

      184

      Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.

      185

      Pope had the selection translated at a cost of $150. She further moves this Court to order the Office of the Attorney General to reimburse the Office of the Public Defender for the cost of the translation. Pope undertook to have the selection translated on her own initiative. The motion is denied.

      186

      Judgment of the Court of Special Appeals with respect to child abuse, third count of Indictment No. 18666, reversing the judgment of the Circuit Court for Montgomery County, affirmed; judgments of the Court of Special Appeals with respect to misprision of felony, fifth count of Indictment No. 18666, affirming the judgment of the Circuit Court for Montgomery County, reversed; case remanded to Court of Special Appeals with direction to remand to the Circuit Court for Montgomery County for entry of judgment of acquittal on the third count and dismissal of the fifth count; motion of appellant to strike granted; motion of appellant for appropriate relief denied; costs to be paid by Montgomery County.

      187

      [354] Eldridge, J., concurring in part and dissenting in part:

      188

      I concur in that portion of the Court's opinion relating to the crime of misprision of a felony. I also agree with the majority that Pope was not guilty of child abuse as a principal in the second degree. However, I cannot agree with the majority's restrictive interpretation of the child abuse statute, which interpretation furnishes the basis for the majority's conclusion that Pope was not guilty of child abuse as a principal in the first degree.

      189

      The child abuse statute, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 35A (a), reaches "[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child...." The Court today takes the position that the statutory phrase "has responsibility for the supervision of" is ambiguous, thereby allowing the Court to "give effect to the real intention of the Legislature." The majority then states that, with regard to persons other than parents, legal custodians or individuals "in loco parentis," only those persons who have assumed responsibility for a child with the consent of the parent or guardian are covered by the statute. The majority finds it "self-evident" that "a third person may not assume such responsibility unless the parent grants it."

      190

      Thus, we are told by the majority opinion that a "person taking a lost child into his home" while an attempt is made to locate his or her parents is beyond the reach of the child abuse statute. In other words, in the Court's view, such a person may voluntarily assume full responsibility for the care of a small child, for a lengthy period of time while an effort is being made to find the parents, and during that time may batter the child unmercifully, but he would not be guilty of child abuse under Art. 27, § 35A. In my view this is a totally unwarranted narrowing of an important piece of legislation.

      191

      In addition to parents, the child abuse statute applies to "[a]ny ... other person who has ... responsibility for the supervision of a minor child...." The language is clear. Everyone who has responsibility is covered, regardless of how he obtained such responsibility.

      192

      [355] It is well-established in the law that one may, by his own actions, voluntarily assume a particular responsibility. That the Legislature intended to cover such a person is shown by the language any other person who has responsibility. There is no ambiguity here. Consequently, there is no need to go further in attempting to ascertain the legislative intent. The majority opinion today flatly violates settled principles of statutory construction, recently summarized by Judge Orth for the Court as follows (Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052, 1054-1055 (1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978)):

      193
      "The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241 (1976). A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976); Cearfoss v. State, 42 Md. 403, 407 (1875). That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. In Re Appeals Nos. 1022 & 1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. Maryland Auto Ins. Fund v. Stith, 277 Md. 595, 597, 356 A.2d 272 (1976). As we said in Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66, 327 A.2d 483 (1974), `where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning.'"
      194

       

      195

      [356] Furthermore, even if there existed some ambiguity in the statute, I am at a loss to know why the majority finds it "self-evident" that only those persons who have been granted responsibility by a parent or guardian should be covered. Nothing in the statutory language indicates such a legislative purpose. I know of no public policy justifying this differentiation between a person who assumes responsibility for a child with parental consent and one who assumes just as complete a responsibility without the parent's consent. If either abuses the child, he should be held accountable under § 35A.

      196

      The majority appears to be concerned about the "good samaritans" who watch a lost child, or allow neighbors' children to play in their yards and exercise supervision, or perform "functions of a maternal nature from concern for the welfare, comfort or health of a child." However, such "good samaritans" have nothing to fear from the child abuse statute. But, if one of these same individuals assumes responsibility for the child and batters it, sexually molests it, locks it for a long period of time in a dark closet, etc., that person should be held just as accountable under the child abuse statute as someone else having responsibility for the child.

      197

      My concern in this case is not so much with the decision that the evidence was insufficient to convict Pope of child abuse. The evidence may not have been sufficient. Instead, what is troublesome in this case is the damage which the majority has done to the child abuse statute.

      198

      [1] The remaining seven counts of the indictment, each concerning offenses committed on or about 11 April 1976 concerning or related to the minor child, alleged murder in the second degree — 1st count; manslaughter — 2nd count; accessory after the fact, murder — 4th count; obstruction of justice — 6th count; conspiracy to obstruct justice — 7th count; assault and battery — 8th count; assault — 9th count. Before trial, the court granted Pope's motion to dismiss the 4th count. At the close of evidence offered by the State, the court granted Pope's motions for judgment of acquittal as to the 6th and 7th counts. At the close of all the evidence, the court reserved ruling on Pope's motions for judgment of acquittal on the remaining counts. It found her "sane" and not guilty on the 1st and 2nd counts, and "sane" and guilty on the 3rd and 5th counts. It held that the 8th and 9th counts merged with the 3rd count.

      199

      Pope was also charged in indictment no. 17830 with murder in the first degree. This indictment was nol prossed before trial.

      200

      [2] The trial court sentenced Pope to the Department of Corrections for a period of seven years on each of the convictions under the 3rd and 5th counts, the sentences to run concurrently. It suspended all but eighteen months of the sentence and recommended that it be served in the Montgomery County Detention Center. Upon release, Pope was to be placed on supervised probation for two years upon condition that she "seek and take psychiatric or psychological assistance."

      201

      [3] The evidence at the trial consisted primarily of two extra-judicial statements given by Pope to the police, one written by her and the other tape recorded, and her testimony at trial, which was essentially repetitious of the statements. Pope's brief contains an agreed statement of facts pursuant to Maryland Rule 828 g. A summary of the evidence is given in the opinion of the Court of Special Appeals. Pope v. State, 38 Md. App. 520, 530-536, 382 A.2d 880 (1978).

      202

      [4] The mother, charged and tried separately from Pope, was found to be not responsible for her criminal conduct at the time of the commission of the offense, and, therefore, not guilty by reason of insanity. Maryland Code (1957, 1972 Repl. Vol.) Art. 59, § 25(a).

      203

      [5] Acts 1963, ch. 743.

      204

      [6] Acts 1970, ch. 500.

      205

      [7] See Acts 1964, ch. 103; Acts 1966, ch. 221; Acts 1967, ch. 38; Acts 1968, ch. 702; Acts 1970, ch. 500; Acts 1973, ch. 656; Acts 1973, ch. 835; Acts 1974, ch. 372; Acts 1974, ch. 554; Acts 1975, ch. 219; Acts 1977, ch. 290; Acts 1977, ch. 504.

      206

      [8] Acts 1973, ch. 835.

      207

      [9] In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we rejected the contention that the definition of abuse was so indefinite as not to comport with the established standards of due process. We opined that "the definition of abuse ... represents a most suitable compromise between the constitutionally mandated requirements of specificity and the practical need to devise language flexible enough to combat a social evil of truly inestimable proportions." Id. at 129.

      208

      [10] Habeas corpus was refused by the United States District Court for the District of Maryland to the convicted mother. On appeal, the United States Court of Appeals for the Fourth Circuit by a majority of a three judge panel, Haynsworth, C.J. dissenting, vacated the judgment and remanded the case to the District Court to grant the writ. Fabritz v. Superintendent, 583 F.2d 697 (1978). In so doing the court accepted "the statute as valid, as did the Court of Appeals of Maryland and the District Court, and accept[ed], too, their clear exposition of the critical words of the law." 583 F.2d at 700. It held that "[t]he statute simply was unconstitutionally applied." Id. It viewed the conviction void for denial of Fourteenth Amendment due process "because the `conviction [is] based on a record lacking any relevant evidence as to a crucial element of the offense charged,' i.e., that the mother had knowledge of the critical gravity of her daughter's condition when she deferred resort to medical advice for the little girl." 583 F.2d at 698.

      209

      We had found it to be manifest from the evidence that the mother knew of the child's severely beaten condition and had failed for some eight hours to seek or obtain any medical assistance although, as the evidence plainly indicated, the need therefor was obviously compelling and urgent. We observed that there was evidence that the mother's failure to seek assistance was based upon her realization that the bruises covering the child's body would become known were the child examined or treated by a physician. State v. Fabritz, 276 Md. 416, 425, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976). Chief Judge Haynsworth was in accord. He did not agree with the majority of the panel that the record was devoid of evidentiary support. He found therein evidence sufficient to support a conclusion that the mother, though generally loving and protective of her daughter, consciously refrained from seeking medical help to protect her lover, the person who beat the child, from possible criminal charges and to support her own ego. "[A] conscious indulgence of such a preference," he thought, "is in violation of Maryland's Child Abuse Law...." 583 F.2d 701 (Haynsworth, C.J. dissenting).

      210

      We note that, unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us. Declaration of Rights, Md. Const., Art. 2; Gayety Books v. City of Baltimore, 279 Md. 206, 213, 369 A.2d 581 (1977); Wiggins v. State, 275 Md. 689, 698-716, 344 A.2d 80 (1975). We are not persuaded to depart from our view of the evidence by the majority opinion of the federal appellate court.

      211

      [11] Under Acts 1963, ch. 743 the statute applied to a child under the age of fourteen years. By Acts 1966, ch. 221 the statute was made applicable to a child under the age of sixteen years, and by Acts 1973, ch. 835 to a child under the age of eighteen years.

      212

      [12] Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 12A provides:

      213

      "Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person's defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself."

      214

      Code (1957, 1971 Repl. Vol., 1978 Cum. Supp.) Art. 43, § 132 grants immunity from liability from civil damages to physicians and certain other persons rendering aid under emergency conditions.

      215

      [13] We have observed: "In Maryland, as in many other states, there is little practical difference between a principal in the first and second degree," and we characterized such difference as "a shadowy distinction." Vincent v. State, 220 Md. 232, 239, n. 1, 151 A.2d 898 (1959). Clark & Marshall, A Treatise on the Law of Crimes (7th ed. 1967) elaborated the point:

      216

      "The common law recognizes no difference in the punishment, between principals in the first and second degree, but regards them as equally guilty, and subject to the same punishment. In practice the distinction is immaterial and on an indictment charging one as principal in the first degree, he may be convicted on evidence showing that he was present aiding and abetting, and conversely.

      217

      "And at common law a principal in the second degree may be indicted and convicted before trial of the principal in the first degree, and even after he has been acquitted, or convicted of an offense of lesser degree, though the commission of the act by the principal in the first degree must be proved in order to convict one as aiding and abetting. Id. at § 8.05, p. 521.

      218

      See Hochheimer §§ 37-38, And "unless it is plain, from the nature of an offense made a felony by statute, that the provisions of the statute were intended to affect only the party actually committing the offense, aiders and abettors are punishable." Clark & Marshall at § 8.04, p. 520.

      219

      [14] Before the Court of Special Appeals the State explained the mother's continual presence and exercise of supervision from time to time while she was awake as conduct permitted by Pope but manifesting "no indication whatsoever that [Pope] intended to relinquish her responsibility." As the Court of Special Appeals correctly observed: "That puts the cart before the horse. It is the mother whose responsibility was not relinquished or absolved." Pope v. State, 38 Md. App. 520, 537-538, 382 A.2d 880 (1978). Before us, the State has apparently abandoned the notion it suggested before the intermediate court.

      220

      [15] This State has enacted a comprehensive scheme, surrounded by safeguards, for determining whether a person is suffering from a mental illness or mental disorder so as to make it necessary or advisable for the welfare of the person so suffering or for the safety of the persons or property of others that the mentally ill person receive care and treatment. Maryland Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.) Art. 59, § 1 et seq. It would be unthinkable to impose such a determination on an ordinary individual at the risk of criminal prosecution. Not even the "reasonable man," so often called upon by the law, has the expertise to make such a judgment.

      221

      [16] The principal in the second degree differs from the accessory before the fact only in the requirement of presence. "The principal in the second degree must be present at the perpetration of the felony, either actually or constructively, whereas the accessory before the fact must be absent. In other words, although neither presence nor absence is of itself a determinant of guilt, yet if the mens rea is found to exist, the same aid, command, counsel, or encouragement which will make a principal in the second degree of one who is present (actually or constructively) at the time a felony is committed, will make him an accessory before the fact if he is absent." R. Perkins, Criminal Law 658-659 (2d ed. 1969).

      222

      [17] 1 Hale, Pleas of the Crown, 439, as quoted in Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Clark & Marshall § 8.02, p. 511, n. 15, also quotes 2 Hawkins, Pleas of the Crown, c. 29, § 10 on the matter:

      223

      "`Those who, by accident, are barely present when a felony is committed, and are merely passive, and neither in any way encourage it, nor endeavor to hinder it, nor to apprehend the offenders, shall neither be adjudged principles [sic] nor accessories; yet, if they be of full age, they are highly punishable by fine and imprisonment for their negligence, both in not endeavoring to prevent the felony, and in not endeavoring to apprehend the offender.'"

      224

      [18] "[T]he inhabitants of Maryland are entitled to the Common Law of England ... according to the course of that Law...." Declaration of Rights, Md. Const. Art. 5.

      225

      [19] The Circuit Court for Carroll County reached the opposite view, dismissing a charging document before it on the ground that misprision of felony is not a crime in Maryland. State v. Shaw, 282 Md. 231, 232, 383 A.2d 1104 (1978). The State appealed. On our review upon grant of writ of certiorari prior to decision by the Court of Special Appeals, we disposed of the appeal upon a double jeopardy issue making it unnecessary for us to address the question whether misprision of felony is a crime in this State. Id. at 232, n. 2 and at 237.

      226

      [20] There was further recognition of the crime of misprision of felony in Rex v. King [1965] 1 All E.R. 1053 (Crim.App.). It was held that, after being cautioned against self-incrimination, the defendant's silence can not possibly constitute misprision. When an accused is questioned about an offense, he is not bound to answer if his reply would incriminate him regarding that offense or any other offense. On the other hand, if after caution, he chooses to say something which conceals the felony, then this will amount to active concealment, not protected by the right against self-incrimination and may constitute misprision. Id. at 1055. See Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100 (1974).

      227

      [21] State v. Biddle, 32 Del. 401, 124 A. 804 (1923) is a report of a charge to the jury by the Court of General Sessions to the effect that the common law crime of misprision existed in Delaware and that it may consist of wilful failure and neglect either to make an effort to prevent the felony being committed or to prosecute the felon. The official report states that the defendant was acquitted. The West report asserts that she was convicted. We are informed by the Bureau of Archives and Records of Delaware that the docket entries for the case, indictment no. 20, November Term, 1923, show that the defendant was acquitted.

      228

      [22] The Model Penal Code (U.L.A.) would make it an offense to volunteer false information to a law enforcement officer, § 242.3 (4) and to aid the consummation of crime, § 242.4.

      229

      [23] The Commission was obviously content with the more definitive offenses of "hindering prosecution" and "compounding a crime." See Maryland Commission on Criminal Law, Report and Part I of `Proposed Criminal Code (1972) §§ 205.65-205.70 and § 215.50.

      230

      [24] Chief Judge Chase continued: "... and what part has become obsolete from non-user or other cause." State v. Buchanan, 5 H. & J. 317, 366 (1821). The addendum, insofar as it applies to "non-user", does not appear to be in accord with the opinion of the Court rendered by Buchanan, J. as we have indicated.

      231

      [25] We noted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204-205, 82 A.2d 106 (1951) that in determining the common law as it exists in this State, we have not always followed the view taken by the majority of other states, citing Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951) and Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951). We believed that we were under no obligation to follow the majority view, unless we thought it better reasoned and sound.

      232

      [26] The Court of Special Appeals recognized that it was "not bound by current opinion of the House of Lords," but noted that "its view of what comprised the elements of its common law prior to 1776 is hard to gainsay." Pope v. State, 38 Md. App. 520, 530, 382 A.2d 880 (1978). It continued: "If in the application of that common law, active concealment is found to be more contemporarily compatible to a determination of criminal culpability than is indifference, such policy is for our Legislature or Court of Appeals to say." Id.

      233

      [27] The question whether the offense extended to concealing knowledge of an intended felony was left open.

      234

      [28] Glazebrook observed that the absence of substantial authority by way of reported cases seriously handicapped their lordships in justifying the law, not only in freeing it from the criticism that it was impossibly wide in scope, but also in determining its ingredients. 25 Mod. L. Rev. 301, 307. "... Lord Denning was driven to the curious position of stating that `the ingredients of the offence can best be seen by comparing it with offences of like degree which have other ingredients.' His lordship might, with equal logic, have postulated crimes of fornication or adultery, and then determined their elements by examining the offences of rape, incest and buggery." Id. at 312.

      235

      [29] It is difficult to see how even a reasonable man could know that a felony had been committed if he does not know the felon. "He has to make certain assumptions about the perpetrator's mens rea and this he cannot do if he does not know who he is." 25 Mod. L. Rev. at 315, n. 91.

      236

      [30] "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V.

      237

      [31] The child abuse law requires "[e]very health practitioner, educator, or social worker or law-enforcement officer, who contacts, examines, attends, or treats a child and who believes or has reason to believe that the child has been abused ... to make a report ... notwithstanding any other section of the law relating to privileged communications...." Code (1957, 1976 Repl. Vol.) art. 27, § 35A(c). It further requires any person, other than those specified in § 35A(c), "who has reason to believe a child is abused [to] so report to the local department of social services or to the appropriate law-enforcement agency...." § 35A (e). There is no sanction for failure to comply, but immunity from civil or criminal penalty is provided when there is compliance. § 35A (h).

    • 4.2 People v. Stephens

      1
      3 A.D.3d 57 (2003)
      2
      769 N.Y.S.2d 249
      3
      THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
      v.
      DARRYL STEPHENS, Appellant.
      4

      Appellate Division of the Supreme Court of the State of New York, First Department.

      5
      December 18, 2003.
      6

       

      7

      [58] Robert T. Johnson, District Attorney, Bronx County (Lara R. Binimow and Peter D. Coddington of counsel), for respondent.

      8

      Richard L. Herzfeld for appellant.

      9

      BUCKLEY, P.J., TOM, SULLIVAN and ROSENBERGER, JJ., concur.

      10
      OPINION OF THE COURT
      11

       

      12

      SAXE, J.

      13

      This appeal requires us to consider the nature and extent of the duty owed to a child by an unrelated adult when the child resides in the adult's household along with his own children and those of his paramour. In particular, we consider whether the prosecution in this case properly relied upon the application of the "in loco parentis" doctrine to convict defendant of murder based upon a failure to provide medical care to a child who was not his biological child.

      14

      This prosecution concerns the death of nine-year-old Sabrina Green, who was, at the time, the charge of her older sister, Yvette Green. Defendant Darryl Stephens and Yvette Green had lived together since 1985; defendant was the father of 8 of Yvette's 10 children. Sabrina came to live in their household in November of 1996. Defendant and Yvette were both convicted of murder in the second degree, under Penal Law § 125.25 (4), for Sabrina's death.

      15

      Sabrina Green was born on August 28, 1988 to a crack-addicted mother, with whom she lived until her mother died in 1991. Sabrina was then cared for by a family friend, Sylvia Simmons, until Simmons died in 1996. Sabrina then briefly lived with a relative, Denise Nelson, but Nelson found Sabrina to be too "hyper" and therefore, in November 1996, she went to live in the household of her older sister Yvette. Yvette was awarded legal guardianship of Sabrina.

      16

      Sabrina had severe behavior problems. At age five she was diagnosed with attention deficit and hyperactivity disorder; the pediatric neurologist who testified at trial suggested she might also have been suffering from oppositional defiant disorder. While she had been treated with Ritalin for years with some success by the time she came to live with them, Yvette did not, or could not, continue to provide her with the medication.

      17

      Soon after she moved in, Sabrina began to regularly exhibit aggressive behavior, including throwing tantrums, hitting her [59] head and arms against furniture when she did not get her way, and getting into fights with the other children in the apartment and at school; she also wet her bed. She had difficulty following household rules, and in this household, a breach of these rules resulted in punishment, imposed either by Yvette or by defendant, such as having to stand in the corner, being grounded in her room, and being whipped with a belt or stick. Sabrina was punished almost daily.

      18

      Tyrone Green, Yvette's son, then 19 years old, testified that he had observed Sabrina taking food out of the refrigerator one night, a serious breach of the household rules which he went to report to Yvette and defendant. Yvette was asleep, and defendant responded to Tyrone that he "would take care of it." The next day Tyrone saw a gauze wrapping on Sabrina's hand, and he later saw that it had been burned. Almost every night thereafter, either Yvette or defendant would tie Sabrina's arms and legs to the bed with a jump rope, for the entire night. In addition, Sabrina was required to spend most of her time sitting in the hallway where she could be watched by both Yvette and defendant. The condition of her hand grew worse, and she was no longer allowed to go to school or outside to play. Despite the older children's entreaties that Sabrina be taken to a doctor, neither Yvette nor defendant did so. Yvette told the children that she was afraid to do so because she might be blamed for the injuries and have her children taken away.

      19

      Despite the testimony of Yvette's sons Tyrone and Marcus, relating that in September 1997 defendant stated that he could no longer deal with Sabrina and that Yvette was going to have to take over being in charge of her, Tyrone also testified that one morning, perhaps about a week before Sabrina died, Tyrone saw defendant hitting Sabrina with a belt 10 or 12 times.

      20

      At the time of Sabrina's death, on November 8, 1997, she was suffering from multiple conditions, including subdural hemorrhage caused by numerous blunt impacts to the head, a third-degree burn to her hand which was left untreated until infection and gangrene set in, and pneumonia. Dr. Ozuah, the physician who examined Sabrina's body at the hospital, observed bruises, some fresh, which were consistent with being hit with a belt, scars that were consistent with her hands being tied with a rope, and bed sores indicating she had been immobilized for many days. There was a severe third-degree burn to her left hand through all layers of skin, which was consistent with being held to a surface such as an iron or stove, and there [60] were fresh injuries on top of the burn. There were injuries to Sabrina's right hand consistent with being slammed repeatedly in a refrigerator door some time in September; the flesh was decaying and gangrenous. Dr. Ozuah also found an old injury to Sabrina's head as well as several that had been inflicted within 24 hours of her death. All the head injuries were serious, requiring a great deal of force, such as from a baseball bat, and could not have been self-inflicted by a nine-year-old banging her head on the floor.

      21

      An autopsy report revealed that Sabrina had died as the result of six recent severe blunt impact wounds to the head, as well as pneumonia caused by an infection which spread from her hands to her bloodstream and lungs. There were numerous scars, including scars to her back, thighs and legs consistent with a severe beating with a belt one week before her death.

      22

      The medical examiner who testified at trial based upon the autopsy report suggested that the cause of death was septic shock resulting from a bacterial infection in the bloodstream due to the untreated burn. It was the expressed opinion of both the examining physician and the medical examiner that Sabrina had been a victim of child abuse.

      23
      DISCUSSION
      24
       
      25
      Sufficiency and Weight of Evidence
      26

       

      27

      The provision of Penal Law § 125.25 under which defendant was charged with murder in the second degree requires that the defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of serious physical injury or death to a person less than 11 years of age. The People's theory regarding defendant's guilt was that acting in concert with Yvette Green, with the requisite mental state, he had engaged in conduct which caused injuries that had resulted in Sabrina's death, and in addition, that he had failed to get her the medical care she needed or take any other steps to protect her, when he knew of her grave injuries.

      28

      Defendant's challenge to the sufficiency of the evidence is two-pronged: first, that the evidence failed to show that he was responsible for the injuries that caused Sabrina's death, and second, since he was neither the child's father nor her guardian, he had no legal duty toward Sabrina, and therefore was not legally chargeable with his mere failure to act to ensure she got medical treatment. We do not agree with his contentions.

      29

      First, there was sufficient evidence to permit the jury to find that defendant, acting in concert with Yvette, under circumstances [61] evincing a depraved indifference to human life, had recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina, thereby causing her death.

      30

      Moreover, the evidence similarly supported the People's alternate theory, which was based upon the application of the doctrine of in loco parentis. We reject defendant's suggestion that he may not be held liable for his failure to ensure that Sabrina received necessary medical attention due to his lack of legal connection to the child.

      31

      Defendant correctly points out that since he was neither the child's parent nor her legal guardian, he may only be convicted based upon a failure to take action to protect the child from harm if a legal duty may be imposed upon him under the in loco parentis doctrine:

      32
      "Criminal liability cannot be premised on a failure to act . . . unless the party so charged has a legal duty to act (see, People v Spadaccini, 124 AD2d 859, 861). A person who has no familial relationship to a child ordinarily has no legal duty to provide for it, unless it can be shown that he or she has assumed all of the responsibilities incident to parenthood. That a party has taken some part in meeting the child's daily needs is not enough; a `full and complete. . . interest in the well-being and general welfare' of the child is necessary, as is the intent to fully assume a parental role, with the concomitant obligations to support, educate, and care for the child on an ongoing basis (Rutkowski v Wasko, 286 App Div 327, 331)." (People v Myers, 201 AD2d 855, 856 [1994].)
      33

       

      34

      However, the evidence fully supports the application of the doctrine here.

      35

      People v Myers presented circumstances in which the in loco parentis doctrine could not support criminal liability. There, the court dismissed the indictment of the defendant for manslaughter (and for endangering the welfare of a child) of a two-month-old child who had died of severe dehydration and malnutrition; although the defendant was the live-in boyfriend of the infant's mother, the evidence merely showed that he contributed to household finances, occasionally purchasing formula for the infant and acting as a babysitter, not that he had "intended to shoulder any responsibility for the child's welfare" (People v Myers, 201 AD2d at 856).

      36

      [62] In contrast, the evidence here reflected that Darryl Stephens was far more than a live-in boyfriend who took no part in the raising of the child. Rather, it supported the conclusion that during his long-term live-in relationship with Yvette, he "assumed all of the responsibilities incident to parenthood" (People v Myers, supra at 856). The 11 children living in the household, including Sabrina, were all housed, clothed, fed and supervised jointly by Yvette and defendant. Defendant took the children, including Sabrina, to school, stayed with them when Yvette was out, set down rules for them and punished them for any infractions. The testimony supports a finding that defendant treated Sabrina with the same degree of responsibility as he did the other children, not as a mere babysitter or short-term helper, but as one of the two coequal adults functioning in the role of parent.

      37

      The law applicable to the present case is not the same as that applicable to neglect proceedings under the Family Court Act, which defines a "person legally responsible" for a child to include "any other person responsible for the child's care at the relevant time" (see Family Ct Act § 1012 [g]), which provision is "intended to be construed broadly so as to include paramours or other nonparental persons who perform childcare duties which correspond with the traditional parent/child relationships" (see Matter of Nathaniel TT., 265 AD2d 611, 612 [1999], lv denied 94 NY2d 757 [1999]). Nevertheless, it is instructive to consider those cases in which live-in paramours have been held to be "person[s] legally responsible" for a child.

      38

      In People v Sheffield (265 AD2d 258 [1999]), the defendant shared his apartment with the 11-year-old child and her mother, he called the child his "stepdaughter" and had sole custody of her on a daily basis. In Matter of Heather U. (220 AD2d 810 [1995]), respondent had been living with the subject child's mother in a family-like setting for approximately three years, had fathered her youngest child, and was a regular member of the subject child's household.

      39

      Similarly, in People v Carroll (244 AD2d 104, 107 [1998], affd 93 NY2d 564 [1999]), this Court upheld a prosecution of a nonparent for endangering the welfare of a child under Penal Law § 260.10 (2), which applies to a "parent, guardian or other person legally charged with the care or custody of a child," because the evidence showed that the nonparent has assumed the role of stepparent during the period in question.

      40

      Like the statutes defining neglect as committed by nonrelatives (see Family Ct Act § 1012 [g]) and endangerment of a child [63] as committed by nonrelatives (see Penal Law § 260.10 [2]), the in loco parentis doctrine requires consideration of whether the person charged actually undertook the fundamental responsibilities that are normally those of a parent. Its application here was entirely proper.

      41

      Defendant argues that, despite his serving in a parental capacity for all the other children living in his home, including the two who were not his natural children, he could relinquish that role for Yvette's young sister and ward by the simple expedient of making an announcement to that effect. However, even assuming that he could have successfully eradicated, through a pronouncement, the responsibility he had previously undertaken, so as to eliminate Sabrina from his sphere of responsibilities, the evidence makes it unnecessary for us to definitively decide that point. Even if defendant made such pronouncement, the testimony that he continued to take part in the ongoing punishments of Sabrina up until just days before her death, and the lack of evidence that he took any other steps to remove all responsibility for her from his life, permit the conclusion that any such pronouncement did not reflect any actual change in his previous parental posture toward her.

      42

      The evidence was legally sufficient to prove beyond a reasonable doubt that defendant was responsible for the victim's care at the time of her death, and that, acting in concert with Yvette, under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina (see People v Contes, 60 NY2d 620 [1983]). Moreover, the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]).

      43
      Jury Charge
      44

       

      45

      Defendant's argument that the court failed to instruct the jury that his obligation to provide medical care had to be proven beyond a reasonable doubt is both unpreserved and without merit. The court delivered both an in loco parentis charge and a reasonable doubt charge, the latter of which emphasized that the evidence must "establish beyond a reasonable doubt each and every essential element of the crimes charged." No objection was raised to the court's instructions regarding defendant's duty to ensure Sabrina received necessary medical care. The charge was not rendered deficient by the fact that the court did not repeat, after describing each element individually, that it had to be established beyond a reasonable doubt.

      46

      [64] The court's acting-in-concert charge was proper and consistent with People v Brathwaite (63 NY2d 839 [1984]) and People v Sanchez (98 NY2d 373 [2002]). The court did not say that mere recklessness was all that was required to convict defendant of murder in the second degree based upon his acting in concert with Yvette, but rather that the jury must find that he acted recklessly "under circumstances evincing a depraved indifference to human life" that created "a grave risk of serious physical injury or death to a person less than 11 years old, and thereby cause[d] the death of such person." The court specifically stated that it was essential that the People prove that both defendant and Yvette "acted with the mental culpability required for the commission of the crimes charged."

      47

      There was no error in the court's responses to the jury's notes.

      48
      Trial Rulings
      49

       

      50

      We find no error in the court's evidentiary rulings. The two medical experts who gave testimony on the issue of battered child syndrome possessed sufficient qualifications to do so (see People v Kinder, 75 AD2d 34 [1980], lv denied 51 NY2d 732 [1980]). The autopsy photographs were necessary to demonstrate the extent of Sabrina's physical deterioration, in light of Tyrone's testimony that she had looked "fine" shortly before her death, and in order to rebut defendant's claims that he had not known of Sabrina's desperate need for help and would have gotten it for her if he had (see People v Sims, 110 AD2d 214, 222 [1985], lv denied 67 NY2d 657 [1986]). The "before" photograph, which was taken just prior to Sabrina's removal by Yvette from the Children's Storefront School, and which depicts her as smiling and healthy, was necessary to demonstrate the drastic change that took place after she came into defendant's care. Defendant's remaining arguments regarding the admission of evidence are without merit.

      51

      The prosecutor's summation was proper, and defense counsel's summation was not unfairly restricted.

      52
      Sentencing
      53

       

      54

      The court properly denied defendant's requested adjournment of sentencing. The desire to present witnesses and to prepare a written memorandum chronicling defendant's law-abiding life did not justify an adjournment because there was no need to elaborate on that point. Nor did defendant's lack of any prior involvement with the criminal justice system suffice as a mitigating factor given the nature of this case. Under the facts [65] of this case, we do not find the sentence here to be unduly harsh (see People v Delgado, 80 NY2d 780, 783 [1992]).

      55

      Accordingly, the judgment of the Supreme Court, Bronx County (Alexander Hunter, J.), rendered January 10, 2000, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, should be affirmed.

      56

      Judgment, Supreme Court, Bronx County, rendered January 10, 2000, affirmed.

    • 4.3 People v. Beardsley

      1

      206 150 MICHIGAN REPORTS.

      2

      PEOPLE v. BEARDSLEY.

      3

      Error to Oakland; Smith, J.

      4

      Submitted April 18, 1907.

      5

      (Docket No. 62.)

      6

      Decided December 10, 1907.

      7


      Carroll Beardsley was convicted of manslaughter, and sentenced to imprisonment for not less than one nor more than five years in the State prison at Jackson. Reversed, and respondent discharged.

      8

      Aaron Perry and M. F. Lillis, for appellant.

      9

      Frank L. Covert, Prosecuting Attorney, and Charles 8. Matthews, Assistant Prosecuting Attorney, for the people.

      10

      MCALVAY, C. J. Respondent was convicted of manslaughter before the circuit court for Oakland county, and was sentenced to the State prison at Jackson for a minimum term of one year and a maximum term not to exceed five years. He was a married man living at Pontiac, and at the time the facts herein narrated occurred, he was working as a bartender and clerk at the Columbia Hotel. He lived with his wife in Pontiac, occupying two rooms on the ground floor of a house. Other rooms were rented to tenants, as was also one living room in the basement. His wife being temporarily absent from the city, respondent arranged with a woman named Blanche Burns, who at the time was working at another hotel, to go to his apartments with him. He had been acquainted with her for some time. They knew each others habits and character. They had drunk liquor together, and had on two occasions been in Detroit and spent the night together in houses of assignation. On the evening of Saturday, March 18, 1905, he met her at the place where she worked, and they went together to his place of residence. They at once began to drink and continued to drink steadily, and remained together, day and night, from that time until the afternoon of the Monday following, except when respondent went to his work on Sunday afternoon. There was liquor at these rooms, and when it was all used they were served with bottles of whiskey and beer by a young man who worked at the Columbia Hotel, and who also attended respondent's fires at the house. He was the only person who saw them in the house during the time they were there together. Respondent gave orders for liquor by telephone. On Monday afternoon, about one o'clock, the young man went to the house to see if anything was wanted. At this time he heard respondent say they must fix up the rooms, and the woman must not be found there by his wife, who was likely to return at any time. During this visit to the house the woman sent the young man to a drug store to purchase, with money she gave him, camphor and morphine tablets. He procured both articles. There were six grains of morphine in quarter-grain tablets. She concealed the morphine from respondent's notice, and was discovered putting something into her mouth by him and the young man as they were returning from the other room after taking a drink of beer. She in fact was taking morphine. Respondent struck the box from her hand. Some of the tablets fell on the floor, and of these, respondent crushed several with his foot. She picked up and swallowed two of them, and the young man put two of them in the spittoon. Altogether it is probable she took from three to four grains of morphine. The young man went away soon after this. Respondent called him by telephone about an hour later, and after he came to the house requested him to take the woman into the room in the basement which was occupied by a Mr. Skoba. She was in a stupor and did not rouse when spoken to. Respondent was too intoxicated to be of any assistance and the young man proceeded to take her downstairs. While doing this Skoba arrived, and together they put her in his room on the bed. Respondent requested Skoba to look after her, and let her out the back way when she waked up. Between nine and ten o'clock in the evening Skoba became alarmed at her condition. He at once called the city marshal and a doctor. An examination by them disclosed that she was dead.

      11

      Many errors are assigned by respondent, who asks to have his conviction set aside. The principal assignments of error are based upon the charge of the court, and refusal to give certain requests to charge, and are upon the theory that under the undisputed evidence in the case, as claimed by the people and detailed by the people's witnesses, the respondent should have been acquitted and discharged. In the brief of the prosecutor his position is stated as follows:

      12

      "It is the theory of the prosecution that the facts and circumstances attending the death of Blanche Burns in the house of respondent were such as to lay upon him a duty to care for her, and the duty to take steps for her protection, the failure to take which, was sufficient to constitute such an omission as would render him legally responsible for her death. * * * There is no claim on the part of the people that tie respondent * * * was in any way an active agent in bringing about the death of Blanche Burns, but simply that he owed her a duty which he failed to perform, and that in consequence of such failure on his part she came to her death."

      13

      Upon this theory a conviction was asked and secured.

      14

      The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. 21 Cyc. p. 770 et seq., and cases cited. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. 1 Bishop on Criminal Law (6th Ed.), § 217; 2 Bishop on Criminal Law (6th Ed.), § 695; 21 Am. & Eng. Enc. Law (2d Ed.), p. 99; 21 Cyc. p. 770 et seq.; State v. Noakes, 70 Vt. 247; 2 Wharton on Criminal Law (7th Ed.), § 1011; Clark & Marshall on Crimes (2d Ed.), p. 379 (e), and cases cited.

      15

      Although the literature upon the subject is quite meagre and the cases few, nevertheless, the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows:

      16

      "If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him as be might have done with- out jeopardizing his own life or the lives of others, he is guilty of manslaughter at least, if by reason of his omis- sion of duty the dependent person dies.

      "So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body, is bound to execute the charge with proper diligence and will be held guilty of manslaughter, if by culpable negligence he lets the helpless creature die." 21 Am. & Eng. Enc. Law (2d Ed.), p. 197, notes and cases cited.

      17

      The following brief digest of cases gives the result of our examination of American and English authorities, where the doctrine of criminal liability was involved when death resulted from an omission to perform a claimed duty. We discuss no cases where statutory provisions are involved.

      18

      In Territory v. Manton, 8 Mont. 95, a husband was convicted of manslaughter for leaving his intoxicated wife one winter's night lying in the snow, from which exposure she died. The conviction was sustained on the ground that a legal duty rested upon him to care for and protect his wife, and that his neglect to perform that duty, resulting in her death, he was properly convicted.

      19

      State v. Smith, 65 Me. 257, is a similar case. A husband neglected to provide clothing and shelter for his insane wife. He left her in a bare room without fire during severe winter weather. Her death resulted. The charge in the indictment is predicated upon a known legal duty of the husband to furnish his wife with suitable protection.

      20

      In State v. Behm, 72 Iowa, 533, the conviction of a mother of manslaughter for exposing her infant child without protection, was affirmed upon the same ground. See, also, Gibson v. Commonwealth, 106 Ky. 360.

      21

      State v. Noakes, supra, was a prosecution and conviction of a husband and wife for manslaughter. A child of a maid servant was born under their roof. They were charged with neglecting to furnish it with proper care. In addition to announcing the principle in support of which the case is already cited, the court said:

      22

      "To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal, legal duty, the natural and ordinary consequences of neglecting which would be dangerous to life."

      23

      In reversing the case for error in the charge—not necessary to here set forth—the court expressly stated that it did not concede that respondents were under a legal duty to care for this child because it was permitted to be born under their roof, and declined to pass upon that question.

      24

      In a Federal case tried in California before Mr. Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard, the learned Justice in charging the jury said:

      25

      "There may be in the omission to do a particular act under some circumstances, as well as in the commission of an act, such a degree of criminality as to render the offender liable to indictment for manslaughter. * * * In the first place the duty omitted must be a plain duty * * * In the second place it must be one which the party is bound to perform by law or contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety." United States v. Knowles, 4 Sawyer (U. S.), 517.

      26

      The following English cases are referred to as in accord with the American cases above cited, and are cases where a clear and known legal duty existed: Beg. v. Conde, 10 Cox Crim. Cas. 547; Beg. v. Bugg, 12 Cox Crim. Cas. 16.

      27

      The case of Beg. v. Nicholls, 13 Cox Crim. Cas. 75, was a prosecution of a penniless old woman, a grandmother, for neglecting to supply an infant grandchild left in her charge with sufficient food and proper care. The case was tried at assizes in Stafford before Brett, J., who said to the jury:

      28

      "If a grown up person chooses to undertake the charge of a human creature, helpless either from infancy, simplicity, lunacy, or other infirmity, be is bound to execute that charge without (at all events) wicked negligence, and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter."

      29

      The vital question was whether there had been any such negligence in the case designated by the trial judge as wicked negligence. The trial resulted in an acquittal. The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and having assumed it, will beheld to be under an implied legal duty to care for and protect such person. The duty assumed being that of care taker and protector to the exclusion of all others.

      30

      Another English case decided in the appellate court, Lord Coleridge, C. J., delivering the opinion, is Reg. v. Instan, 17 Cox Crim. Cas. 602. An unmarried woman without means lived with and was maintained by her aged aunt. The aunt suddenly became very sick, and for ten days before her death was unable to attend to herself, to move about, or to do anything to procure assistance. Before her death no one but the prisoner had any knowledge of her condition. The prisoner continued to live in the house at the cost of the deceased and took in the food supplied by the tradespeople. The prisoner did not give food to the deceased, or give or procure any medical or nursing attendance for her; nor did she give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. In the opinion, Lord Coleridge, speaking for the court, said:

      31

      "It is not correct to say that every moral obligation is a legal duty; but every legal duty is founded upon a moral obligation. In this case, as in most cases, the legal duty can be nothing else than taking upon one's self the performance of the moral obligation. There is no ques- tion whatever that it was this woman's clear duty to impart to the deceased so much of that food, which was taken into the house for both and paid for by the deceased, as was necessary to sustain her life. The deceased could not get it for herself. She could only get it through the prisoner. It was the prisoner's clear duty at common law to supply it to the deceased, and that duty she did not periorm. Nor is there any question that the prisoner's failure to discharge her legal duty, if it did not directly cause, at any rate accelerated, the death of the deceased. There is no case directly on the point; but it would be a slur and a stigma upon our law if there could be any doubt as to the law to be derived from the principle of de- cided cases, if cases were necessary. There was a clear moral obligation, and a legal duty founded upon it; a duty willfully disregarded and the death was at least accelerated, if not caused, by the nonperformance of the legal duty."

      32

      The opening sentences of this opinion are so closely connected with the portion material to this discussion that they could not well be omitted. Quotation does not necessarily mean approval. We do not understand from this opinion that the court held that there was a legal duty founded solely upon a moral obligation. The court indicated that the law applied in the case was derived from the principles of decided cases. It was held that the prisoner had omitted to perform that which was a clear duty at the common law. The prisoner had wrongfully appropriated the food of the deceased and withheld it from her. She was the only other person in the house, and had assumed charge of her helpless relative. She was under a clear legal duty to give her the food she withheld, and under an implied legal duty by reason of her assumption of charge and care, within the law as stated in the case of Reg. v. Nicholls, supra. These adjudicated cases and all others examined in this investigation we find are in entire harmony with the proposition first stated in this opinion.

      33

      Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to
      save her; the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent it must arise by implication from the facts and circumstances already recited. The record in this case discloses that the deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxicants. She previously had made assignations with this man in Detroit at least twice. There is no evidence or claim from this record that any duress, fraud, or deceit had been practiced upon her. On the contrary it appears that she went upon this carouse with respondent voluntarily and so continued to remain with him. Her entire conduct indicates that she had ample experience in such affairs.

      34

      It is urged by the prosecutor that the respondent "stood towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform." The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife, as seems to be intimated by the prosecutor's brief. Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion. Had this been a case where two men under like cir- cumstances had voluntarily gone on a debauch together and one had attempted suicide, no one would claim that this doctrine of legal duty could be invoked to hold the other criminally responsible for omitting to make effort to rescue his companion. How can the fact that in this case one of the parties was a woman, change the principle of law applicable to it? Deriving and applying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. We find no more apt words to apply to this case than those used by Mr. Justice Field in United States v. Knowles, supra.

      35

      "In the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistance when in danger; * * * and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society."

      36

      Other questions discussed in the briefs need not be considered. The conviction is set aside, and respondent is ordered discharged.

      37

      MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred.

      38

       

    • 4.4 Anthony D'Amato, "The ‘Bad Samaritan’ Paradigm," Northwestern University Law Review, Vol. 70, No. 5, 1976.

    • 4.5 Vermont Duty to Aid the Endangered Act

      1
      12 V.S.A. § 519.
      Emergency medical care
       
       
      2

      § 519. Emergency medical care

      3

      A. A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.

      4

      B. A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice.

      5

      C. A person who willfully violates subsection (a) of this section shall be fined not more than $100.00. (1967, No. 309 (Adj. Sess.), §§ 2-4, eff. March 22, 1968.)

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