Key words: negligent homicide, manslaughter, reckless, "depraved heart" murder, Indiana v. Ford Motor Co.

It has been determined that seasonal variations exist in homicides from studies taken in various states that record such information monthly. One of these states is New York, where in comparison with multiple states throughout the United States, determined that homicides occur most often during the summer months with the exception of December. Apparently, the winter holiday season sets the scene for an increase in the number of homicides, yet does not help to explain the dramatic increase during the summer. During the warmer season, there are only a few scattered holidays, which suggests that the holidays have little cause for these homicides occurring continuously throughout June through August (Bowers, Pierce & McDevitt, 1984, p. 287). Of these acts of homicide negligent homicide, manslaughter, and depraved-heart murder are included. In regards to the actual person who performs any of these two unlawful acts, he or she may be chargeable with a felony. For example since old English law, involuntary manslaughter has been felonious (McKee, 2002, p. 121).

The first of these, negligent homicide, is the killing of another person through gross negligence or without malice. It can also be considered a death that is the result of the negligent operation of a motor vehicle, which includes the operation of a boat or snowmobile. In some states, the term negligent homicide replaces the terminology of manslaughter (involuntary) with similar defining. Unintentional killing(s) in which the actor(s) should have known they were creating substantial and unjustified risks of death by conduct that grossly deviated from ordinary care summarizes the relationship between the definitions of these terms (Samaha, 2002, p. 536).

Three versions of manslaughter (involuntary) exist. Involuntary manslaughter is separated into criminal reckless manslaughter, (gross) criminal negligence manslaughter, and unlawful or misdemeanor manslaughter. They vary by their degree of Mens Rea, or the mental mindset of the person committing the crime. A person who is held aware is also viewed more responsible for his or her actions. The Mens Rea element is the creation of risk involved with killing or seriously injuring another person either recklessly or negligently. All the other aspects are the same. The Actus Reus, the actual act constituting a criminal offense, is the killing of another person. The circumstance is the death during the commission of the unlawful act and the causation is any act that triggers a chain of events, which lead to the death of another person. The result obviously is the death of this other person (Samaha, 2002, p. 372).

Black’s Law Dictionary with Pronunciations, sixth edition defines the following terms: manslaughter, involuntary, and accidental killing. It states manslaughter as "the unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice." The definition continues to include "the unlawful killing of a human without deliberation, which may be involuntary, in the commission of a lawful act without due causation and circumspection" (1992, p. 964). Specifically, the defining of the term involuntary "is that which is performed under duress, force, or coercion" (1992, p. 827). Accidental killing on the other hand is in contrast to involuntary. It is defined as "an act which is lawful and lawfully done under a reasonable belief that no harm is possible" (1992, p. 16).

Specifically, under Arkansas Code 5-10-104, the code describes the charge of manslaughter in the state.

A person commits manslaughter if:

He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be; (2) He purposely causes or aids another person to commit suicide; (3) He recklessly causes the death of another person; (4) Acting alone or with one (1) or more persons, he commits or attempts to commit a felony, and in the course or and in furtherance of the felony of in immediate flight therefrom: (A) He or an accomplice negligently causes the death of any person; or (B) another person who is resisting such offense or flight cause the death of any person.

Under Arkansas law for theses reasons established manslaughter as a Class C felony as is its negligent homicide statute 5- 10- 105 (a) (1).

Notice that the person who is charged has an extremely lesser punishment if found to be negligent rather than reckless. The charge decreases from a Class C felony in relation to recklessness to a Class A misdemeanor in regards to mere negligence. Note as well that operating a vehicle while intoxicated and killing another person is not limited to the charge of negligent homicide. The individual is chargeable with more severe offences such as manslaughter and even murder in some instances as ruled by the court in Simmerson v. State, 71 Ark. App. 16, 25 S.W.3d 439 in 2000.

However, despite their similar definitions, do not confuse the term manslaughter with its lesser-included offense, which is negligent homicide. For example, on July 17, 1997, at approximately 5:35 a.m., when a man was driving home, his vehicle crossed the centerline of the road and entered the path of another vehicle causing an unfortunate accident. The other driver died as a result of this man’s operation of a vehicle while intoxicated, which is "having a blood alcohol level of 0.10% or more by weight. A blood test, taken approximately one hour after the accident, established that his blood-alcohol content was .12%." Appellant was charged with manslaughter and DWI, however when the jury presented the guilty verdict, they chose negligent homicide because of the following differences between the two terms in the state of Arkansas. In order to find the defendant guilty of the charge of manslaughter, they would have had to prove beyond reasonable doubt that he "operated or was in actual physical control of a motor vehicle while there was one tenth of one percent (.10%) or more by weight of alcohol in his blood as determined by a chemical test of his blood or breath." However, to find him guilty of negligent homicide it only had to be proven beyond a reasonable doubt that the defendant "negligently caused the death of another driver as a result of operating a vehicle while intoxicated or while having a blood alcohol level of 0.10% or more by weight" (Jimmie Don Montague v. State of Arkansas, 1999). [The final outcome of this specific case is concluded under the Judge Affirms Negligent Homicide portion of this paper.]

There have been various cases that have focused attention to the thin line between negligent homicide and reckless or "depraved heart" murder. The latter is defined as an act that results in death(s) as a result of a purposely or consciously creating substantial and unjustifiable risk(s) that someone will either die or suffer serious injury (537). Note that the negligent actor was unaware of the risks involved, whereas the reckless actor was aware of these risks. The Model Code specifies that under the general requirements of culpability that one of the previous two mental elements must be involved or purpose or knowledge. When defining negligently in subsection d of Section 2.02, the Model Code establishes that:

A person acts negligently with respect to a material element of an offence when he should be aware of a substantial and unjustifiable risk that the material element exists of will result from his or her conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his or her conduct and the circumstances known to him or her, involves a gross deviation from the standard of care that a reasonable person would observe in this situation (119).

According to Black’s Law Dictionary with Pronunciations, sixth edition, "criminal homicide constitutes negligent homicide when it is committed negligently" (1992, p. 735). "The criminal offence committed by one whose negligence is the direct and proximate cause of another’s death" is also another version of defining negligent homicide. In addition, negligent manslaughter exists in "some jurisdictions consisting of an unlawful and unjustified killing of a person by negligence but without malice" (1992, p. 1035). Negligence specifically defined is "the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do" (1992, p. 1032).

In comparison, recklessness is associated with rashness and heedlessness. Its definition is

the state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, through forseeing [sic] such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must to such as to evince disregard of or indifference to life or safety of others, although no harm was intended.

Depraved when used as an adjective such as in the phrase depraved-heat murder, "means marked by debasement, corruption, pervasion or deterioration" (1992, p. 440). This is also the basic definition for the extreme indifference to the value of human life.

Despite the fact that involuntary manslaughter and depraved heart murder are by definition crimes that are unintended, a person is chargeable for either offense if he or she intentionally encouraged an act that results in the death of someone. It is also possible to charge any person that intentionally encouraged a reckless act that results in the death of someone with aiding and abetting, despite its requirement for intent or purpose (Pauley, 1999, p. 110).

The well-known Ford’s Pinto Trial of the early 1970’s was the first time a manufacturer had been brought to court on criminal charges for marketing a knowingly faulty product. The Pinto was recognized as a danger to life when tested under normal rear-end impact and was known to have problems with its fuel system, yet it was still placed on the market. The trial involves the death of three young girls who were involved in a fatal car accident while riding in a Pinto. The car was crushed on impact from a van traveling at fifty miles per hour behind them. Soon after being rear-ended and pushed 154 feet forward before stopping, the Pinto erupted into flames reaching 1292 degrees. Two of the girls died instantly, while the third survived in continuous pain, worry and fear for eight more hours before dying as well (Strobel, 11-19). Since the company had former knowledge of the nature of the car, they were held liable for the damages and charged with reckless homicide because the final result was death. Unfortunately for the deceased teenagers, the Ford Motor Company won, yet the mere fact that they were tried at all is a great significance for future cases (Strobel, 273).

In the Thursday, August 29, 2002 Monitor, reporter Timmins wrote about a negligent homicide charge involving the negligent operation of a boat. The Marine Patrol of Meredith investigated these charges against the driver of a 36-foot Baja powerboat that hit a smaller boat on Sunday, August 11, 2002 around 9:30 p.m. in Meredith Bay. Immediately following the crash, the driver of the powerboat sped away despite the death of the passenger on board the rammed boat. On the afternoon of Monday, August 12, 2002, the Patrol apprehended the suspected powerboat and found fresh marks matching the damage to the smaller boat caused by the accident the day before. With forensic tests that were run during the week this article was published it had been recorded that the fragments found in the smaller boat also match the missing pieces from the scratched powerboat (Timmins, 2002). Note that in order for the defendant in this case to be guilty of negligent homicide, the prosecution must provide evidence that the act was the proximate cause of the death or serious injury of the other person. Interpreting negligence from the prosecutions’ point of view, the law generally requires that they show that the defendant’s behaviors fell shy of the behaviors of reasonably prudent people (Gaskins, 1989, p. 33). Thus in this case, the prosecution needs to present enough evidence in court to prove that had the operator of the Baja powerboat acted as a reasonable person he or she would have stopped after ramming the other boat. They must also prove that a reasonable person would have stopped. On the other hand, if charges brought against the operator were for recklessness, the prosecution would need to prove what the defendant was thinking in order to establish the defendant’s actual state of mind (Pauley, 1999, p. 42).

A specific type of homicide referred to as infanticide is the act of killing a child between birth and age eighteen. It can be shown that some parents who killed their children acted either negligent or recklessly in performing such an act. Through predictions and testing, data shows that as children age parents are less likely to perform the act of infanticide because the child becomes less vulnerable with age. On the other hand, these tests provide enough relevant information to determine that non-parents performing the same act do so on older children (Hausfater & Hrdy, 1984, p. 496-497). Note the following case involving a young mother and her newborn.

In mid 1999, a young single mother of New York lost her two-month-old son who she had been regularly breast-feeding and was charged with criminally negligent homicide for the death because malnutrition was found to be the cause. However, the defendant had repeatedly tried to find help for her sick child at the Medicaid HMO HIP center where she had a card, yet was turned down for care because the infant did not have one, which was to be mailed to her, unfortunately arriving after the death. According to law, the center is not legally able to turn away a patient with or with out the possession of a card, especially a child who needs services. However, after taking the last step to save her child by rushing him via cab to the local hospital where the infant died, the mother alone was charged for the death. The center was not charged to any degree for their inadequate services, which were the most significant stages leading to the tragic death of this newborn (Whyte, 1999).

An assistant fire chief was convicted of criminal negligent homicide due to his involvement in a "live burn" exercise held in a vacant farmhouse on Route 5 in Westmoreland which resulted in the death of a nineteen year old boy and severely burned two firefighters. The exercise, he admitted, was a dangerous training experience for recruits, yet he still ignited a first-floor sofa bed, which quickly spread up the stairs of the old farmhouse burning well out of control. The fast-spreading blaze was held to be an effect that was unaware to the chief, but something that should have been known to cause such a tragic outcome, thus he was convicted as stated and sentenced to 75 days in jail with five years probation. He was also to avoid contact with any fire department under this five-year term of probation (Hassett, 2002).

On December 1, 1999, in the case of Jimmie Don Montague v. State of Arkansas, the Court of Appeals of Arkansas reversed in part and affirmed in part the appellant’s sentence as set by the jury of the lower court, which had presented two guilty verdicts. One was for negligent homicide and the other was for DWI. The judge then imposed the recommendations of the jury that the appellant receive a suspended sentence of six years' imprisonment and a fine of $5000 for negligent homicide and a year in the county jail and a $1000 fine for DWI. The Court held that an appellant could not be convicted of both the greater offense of negligent homicide and its lesser-included offense of DWI. Therefore the appellant's conviction and sentence for DWI would have to be voided and was reversed, but his conviction and sentence for negligent homicide would remain justifiable and was affirmed (Jimmie Don Montague v. State of Arkansas, 1999). [The initial charges and verdict of this specific case is considered under The Difference between Manslaughter and Negligent Homicide in a Case portion of this paper.]

A writer of the Charleston Gazette, informed the public of Kanawha County that a jury acquitted a twenty-two-year-old man charged with negligent homicide in the death of a 6-year-old girl he had hit with his car four years earlier as she walked to board a stopping school bus. He had been convicted in magistrate court in February 1989 of the misdemeanor offense and sentenced to one year in prison and a $1,000 fine, but appealed to the circuit court. The accident had occurred about 7:45 a.m. Oct. 21 1985 in the 6500 block of MacCorkle Avenue near 66th Street in Kanawha City when the decedent was crossing the street to the eastbound school bus when she was struck by the west bound car. The defendant, who was 18 at the time of the accident, hit the child, who was a resident of the area and student at the local elementary school (Pomeroy, 1997).

Recklessness and negligence are both mental states of the Model Penal Code, however, the former is subjective where as the latter is objective. From the variations between these terms results charges of involuntary manslaughter, negligent homicide, and depraved-heart murder. As the examples have demonstrated and the definitions have shown, these variations are important in the courtroom. The outcome for the defendant differs dramatically between a felony resulting in more than one year in prison and a mere misdemeanor resulting in less than a year in jail. As Matthew Pauley writes, "subjective fault is usually said to be worse than objective fault. If you are aware of a risk and ignore it or you are certainly doing something and you don’t care, that’s worse, morally speaking, than if you don’t know. And it’s worse legally speaking too (1999, 42)."

______. (1992). Black’s Law Dictionary with Pronunciations (6^th ed.). Place: Publishing Co.

Bowers, W. J., Pierce, G. L. & McDevitt, J. F. (1984). Legal homicide: Death as punishment in America 1864-1982. Boston: Northwestern University Press.

(Previous ed. published as: Executions in America. 1974.)

Gaskins, R. H. (1989). Environmental accidents: Personal injury and public responsibility. Philadelphia: Temple University Press.

Hausfater, G., & Hrdy, S. B. (1984). Infanticide: Comparative and evolutionaryperspectives. New York: Aldine Publishing Company.

Hassett, K. (2002). Lairdsville, New York training tragedy: Baird gets 5-year probation, must not associate with fire departments. The Observer-Dispatch Utica, NY. . Retrieved Oct. 01, 2002 from the World Wide Web: http://www.firehouse.com/training/news/2002/0707_Psentence.html

McKee, A. J. (2002). Sir William Blackstone on Justice: An abridgement of his commentaries on the laws of England.

Pauley, M. (1999). Criminal Law: Its Nature and Sources. Wilmington, DE: Griffon House Publications.

Pomeroy, D. (1997). They all came together: Jury acquits city man of negligent homicide. Charleston Gazette. Retrieved Oct. 22, 2002 from the World Wide Web: http://www.geocities.com/ Heartland/Farm/4653/Jury.html

Samaha, Joel. (2002). Criminal Law (7^th ed.). Belmont, CA: Wadsworth Group/ Thomson Learning.

Strobel, L. P. (1980). Reckless homicide? Ford’s Pinto trial. South Bend, IN: and books.

Timmins, A. (Thursday, August 29, 2002). Negligent homicide charge considered:

Boating collision killed Bedford man. Moniter. Retrieved Oct. 22, 2002 from the World Wide Web: http:// www.cmonitor.com/stories/front2002/ boat_documents_2002.shtml

Whyte, A. (22 May 1999). Young mother convicted of criminally negligent homicide in her baby’s death: New     York authorities victimize the victim. World Socialist Web Site. Retrieved Oct. 13, 2002 from the World Wide Web: http://www.wsws.org/ articles/1999/may1999/walr-m22.shtml

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