Barbeau

193 F.2d 945 13 Alaska 551 BARBEAU, v. UNITED STATES. No. 12715. United States Court of Appeals Ninth Circuit. Dec. 17, 1951. As Amended on Denial of Rehearing Jan. 24, 1952. George B. Grigsby, Anchorage, Alaska, for appellant. J. Earl Cooper, U.S. Atty., Ralph E. Moody, Asst. U.S. Atty., Anchorage, Alaska, for appellee. Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from a judgment of conviction in the Alaska District Court for manslaughter by culpable negligence. 2 The appellant Barbeau was indicted for first degree murder under 3 A.C.L.A.1949, § 65-4-1, which reads: 'First degree murder. That whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree, and shall suffer death.' 3 The indictment returned by the Grand Jury charged: 'That on or about the 18th day of February, 1950 at Anchorage, Third Judicial Division, District of Alaska, Lilburn H. Barbeau purposely and of deliberate and premeditated…

This is an appeal from a judgment of conviction in the Alaska District Court for manslaughter by culpable negligence.

The appellant Barbeau was indicted for first degree murder under 3 A.C.L.A.1949, § 65^4-1, which reads: “First degree murder. That whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree, and shall suffer death.”

The indictment returned by the Grand Jury charged: “That on or about the 18th day of February, 1950 at Anchorage, Third Judicial Division, District of Alaska, Lilburn H. Barbeau purposely and of deliber- • ate and premeditated malice killed Paul Gunn by shooting the said Paul Gunn with a pistol.”

On a plea of not guilty, the jury found Barbeau not guilty of murder in the first degree, and not guilty of murder in the second degree, but found him guilty of manslaughter by culpable negligence-.

Four issues merit our attention on the appeal from this verdict: (a) did the indictment charge the offense for which the defendant was convicted;…

I dissent.

The very name of the crime “manslaughter by culpable negligence” connotes a bad act. It is not a crime to be negligent. It is the fate of all to be more or less negligent by character and it is somewhat a conflict of terms to qualify negligence with the word “culpable”.

Strictly speaking, a negligent act is one performed unwittingly and it is abhorrent to name an unwitting act a crime. The better term, it seems to me, would be “manslaughter by culpable recklessness”. By such term it would be apparent that no innocent act could be warped into a crime as I think was done in the instant case and as I think has been done in numerous cases. A glance at the case excerpts in 10 Words and Phrases 639 et seq., and particularly at page 640, will 'show that the principles I here state are amply supported by authority. It will also be revealed that cases have mistakenly been held criminal which arise from mere negligent acts. Of course, one cannot generally act with disregard of others’ safety without risking a compensatory judgment for resulting injury but an oversight can hardly be prescribed as a crime. The court relates the incident of the shooting and places the culpability…

concurring:

I join in the action of the court denying the petition for a rehearing for the reason that the court examined every point made in the petition with great care and came to its decision advisedly. However, I adhere to my dissent. In reading my dissenting opinion I would wish my statements, to the effect that no act can be a crime without specific intent in its doing, modified to exclude acts in violation of certain regulatory statutes which are punishable as crimes. See Morissette v. United States, 1952, 72 S.Ct. 240 .