Weiner 1961 discussion: Can Manslaughter be considered a moral turpitude if…

Weiner 1961 discussion: Can Manslaughter considered a moral turpitude violation when it involves ‘the absence of intent’ and is defined as criminal negligence… or rather ‘knew or should have known’ awareness of a risk of injury or death……

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

What is “moral turpitude”? It has been defined as an “act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and man,” Black’s Law Dictionary *484 (4th ed. 1951); State v. McCarthy, 255 Wis. 234, 38 N.W.2d 679, 687 (Sup. Ct. 1949), and as, “in its legal sense * * * everything done contrary to justice, honesty, modesty or good morals.” Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329, 331, 52 A.L.R.2d 1310 (Sup. Ct. 1955). The United States Supreme Court, in connection with alien deportation proceedings, has held that, in addition to “crimes * * * of the gravest character,” any crime in which fraud is an ingredient involves moral turpitude. Jordan v. De George, 341 U.S. 223, 227, 71 S. Ct. 703, 706, 95 L. Ed. 886 (1951). See Berardi v. Rutter, 42 N.J. Super. 39, 48 (App. Div. 1956), affirmed sub. nom. In re Berardi, 23 N.J. 485 (1957). But the attempt to apply these definitions to specific criminal acts, especially in the context of license revocation proceedings, has demonstrated only the elasticity of the phrase and its necessarily adaptive character, reflective at all times of the common moral sense prevailing throughout the community. See State ex rel. v. Mason, 29 Or. 18, 43 P. 651, 652 (Sup. Ct. 1896).

For example, offenses held to involve moral turpitude warranting the suspension of a medical license include the dispensing and prescribing of narcotics for other than medicinal use, Du Vall v. Board of Medical Examiners of Arizona, 49 Ariz. 329, 66 P.2d 1026 (Sup. Ct. 1937); White v. Andrew, 70 Colo. 50, 197 P. 564 (Sup. Ct. 1921); Sapero v. State Board of Medical Examiners, 90 Colo. 568, 11 P.2d 555 (Sup. Ct. 1932); Speer v. State, 109 S.W.2d 1150 (Tex. Civ. App. 1937); Garlington v. Smith, 63 Ariz. 460, 163 P.2d 685 (Sup. Ct. 1945); Meyer v. Board of Medical Examiners, 34 Cal. 2d 62, 206 P.2d 1085 (Sup. Ct. 1949); issuing a check with insufficient funds, with intent to defraud, Bancroft v. Board of Governors, 202 Okl. 108, 210 P.2d 666 (Sup. Ct. 1949); possession of counterfeit money with intent to circulate same, State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W.2d 83 (Sup. Ct. 1935); sending through the mails notices and information advertising the performance of criminal abortions, State Board of *485 Medical Examiners v. Harrison, 92 Wash. 577, 159 P. 769 (Sup. Ct. 1916); repeated acts of indecent exposure, Brun v. Lazzell, 172 Md. 314, 191 A. 240, 109 A.L.R. 1453 (Ct. App. 1937); fraudulent claims of treatment of disabled veterans while employed by the government, Craft v. Balderston, 58 Idaho 650, 78 P.2d 122 (Sup. Ct. 1938); willful attempt to evade federal income taxes, In re Kindschi, 51 Wash. 2d 8, 319 P.2d 824(Sup. Ct. 1958); and selling bogus diplomas and licenses through the mails, State ex rel. Munch v. Davis, 143 Fla. 236, 196 So. 491 (Sup. Ct. 1940).

On the other hand, the unlawful sale of liquor, Fort v. City of Brinkley, 87 Ark. 400, 112 S.W. 1084 (Sup. Ct. 1908), and the offense of disturbing the peace, Wyatt v. Cerf, 64 Cal. App. 2d 732, 149 P.2d 309 (D. Ct. App. 1944) have been held not to involve moral turpitude.

The effort to classify manslaughter as involving or not involving moral turpitude does not lead to entirely satisfactory results. The common law distinction between offenses malum in se and those malum prohibitum is of little help in this regard. See Du Vall v. Board of Medical Examiners of Arizona, supra, 66 P.2d, at p. 1030. The difficulties are multiplied when we pass to a consideration of the two branches of manslaughter, keeping in mind that our own statute, N.J.S. 2A:113-5, does not differentiate between them.

Manslaughter consists of unlawful homicide, without either express or implied malice aforethought; the absence of the latter element distinguishes it from murder. Chase’s Blackstone, Commentaries on the Laws of England, (4th ed. 1919), pp. 939-40; 1 Wharton, Criminal Law and Procedure (Anderson, ed. 1957), § 271, p. 574. It may be voluntary, as a felonious and intentional killing ordinarily committed in a sudden heat of passion, caused by adequate legal provocation, State v. Zellers, 7 N.J.L. 220, 243 (Sup. Ct. 1824), 1 Wharton, supra, § 274, p. 580, or involuntary, in the commission of an unlawful act or by culpable negligence in performing a lawful act or omitting *486 to perform a legal duty. State v. Blaine, 104 N.J.L. 325 (E. & A. 1928); State v. Brown, 22 N.J. 405, 411 (1956); 1 Wharton, supra, § 289, p. 605. The only specific intent required is the intent to do the act resulting in the death, rather than intent to do a harm. State v. Diamond, 16 N.J. Super. 26, 31 (App. Div. 1951). In the area of medical malpractice, manslaughter may be deduced from criminal negligence on the part of a physician or surgeon through gross ignorance of the science practiced and the effect of the remedies employed, gross negligence in the application and selection of remedies, lack of proper skill in the use of instruments, or failure to give proper instructions to the patient as to the use of the medicines. Chase’s Blackstone, supra, at p. 943; 1 Wharton, supra, § 294, pp. 618-20. Illustrative is Commonwealth v. Pierce, 138 Mass. 165 (Sup. Jud. Ct. 1884), where a physician who caused a bedridden patient to be kept in flannels saturated with kerosene for several days, by reason of which she died, was held guilty of manslaughter.

Unless we are willing to say that any grossly negligent act which happens to result in death whatever the awareness of the actor of the danger of the act, as long as he intended to do the act involves moral turpitude, we are led towards the conclusion that moral baseness and depravity do not necessarily inhere in the crime of manslaughter. See United States ex rel. Mongiovi v. Karmuth, 30 F.2d 825 (D.C.W.D.N.Y. 1929), in which the New York statutory crime of second degree manslaughter was held not to involve moral turpitude. But cf. Board of Governors of Registered Dentists of Oklahoma v. Brown, 182 Okl. 243, 76 P.2d 1074 (Sup. Ct. 1937). The direction of our thought is reinforced when we consider that, for present purposes, the crime must be viewed in all of its potential factual shadings. Would we consider, for example, the killer of his wife’s paramour, upon discovery of the two in flagrante delicto, to have committed a vile and immoral act? Or does one who is grossly negligent, but ignorant of his imprudence, thereby necessarily *487 manifest an essential baseness of character? We do not read the present state of public morality as necessarily regarding, as base and wicked, acts committed in the heat of a passion which the law recognizes as justifiably provoked, or actions which demonstrate merely ignorance (however unjustifiable) of the steps and procedures which a reasonable man would have taken in a given situation.

On the other hand, we cannot altogether accept appellant’s notion that manslaughter, even involuntary manslaughter (which is contemplated as the factual substance of the State’s case against Dr. Weiner), can under no circumstances involve moral turpitude. As stated, manslaughter, in the form of culpable negligence, may well be the result of an unreasonable risk of danger to life and limb which the actor was aware of or should have been aware of. We do not foreclose the possibility that, notwithstanding its irrelevancy to his criminal culpability, the factual distinction between actual knowledge of the risk and constructive knowledge thereof may well be pertinent to his moral culpability. See, as bearing on this possible distinction, A.L.I., Model Penal Code, Tentative Draft No. 4, § 2.02 (c), p. 13, Tentative Draft No. 9, § 201.4, Comment 1, p. 49, distinguishing between “reckless” action (conscious disregard of a substantial and unjustifiable homicidal risk created by the actor’s conduct), classified by the Institute as “manslaughter,” and mere “negligent” action (where the actor “should be aware” of a substantial and unjustifiable homicidal risk), categorized as “negligent homicide.” In the realm of moral reprehensibility, the line between conscious indifference to human life and safety, on the one hand, and failure, through ignorance, to adhere to common standards of care, on the other, may be more than illusory, notwithstanding that both forms of conduct, due to the absence of malice aforethought, may be criminally designated as manslaughter. The concept that negligence may, under certain circumstances, involve moral turpitude is not entirely novel. In the regulation of attorneys’ conduct, gross carelessness *488 and negligence have been held to constitute “acts” involving moral turpitude, as a breach of the attorney’s fiduciary relationship requiring of him conscientious fidelity. Waterman v. State Bar of California, 8 Cal. 2d 17, 63 P.2d 1133, 1134 (Sup. Ct. 1936); Bruns v. State Bar of California, 18 Cal. 2d 667, 117 P.2d 327, 331 (Sup. Ct. 1941); Stephens v. State Bar of California, 19 Cal. 2d 580, 122 P.2d 549, 550 (Sup. Ct. 1942).