I cannot agree that an information for negligent homicide is sufficient which sets up the charge in the language of the statute and does not specify the acts of negligence relied upon as the cause of death.
In a civil suit a declaration so framed would not sustain a judgment for damages. Aside from constitutional requirements and precedents in the law of indictments, it is not in harmony with our doctrine of natural rights that a person may be deprived of his liberty on less particularity of accusation *Page 471 than is required to cause him to respond in money.
The information was for involuntary manslaughter. The most concise and precise statement of the rule governing such informations, which I have been able to discover after much research, is that of Mr. Justice WIEST in People v. Townsend,214 Mich. 267 (16 A.L.R. 902), quoted in People v. Ryczek,224 Mich. 106, in Joyce on Indictments (2d Ed.), § 518, and widely cited:
"The distinction between involuntary manslaughter committed while perpetrating an unlawful act not amounting to a felony, and the offense arising out of some negligence or fault in doing a lawful act in a grossly negligent manner and from which death results, must be kept in mind upon the question of pleading. In the former case it is sufficient to allege the unlawful act with sufficient particularity to identify it, and then to charge that as a consequence the defendant caused the death of the deceased, and there is no need to aver in detail the specific acts of the accused; but in case of manslaughter committed through gross or culpable negligence, while doing a lawful act, the duty which was neglected or improperly performed must be charged as well as the acts of the accused, constituting failure to perform or improper performance."
The unlawful act alleged in the information in theTownsend Case was driving an automobile while intoxicated. At bar, the unlawful act upon which conviction was predicated wag driving an automobile on the left of the center of the highway. The act was not alleged or identified in the information in any way. The general statement that defendant "did operate said automobile * * * in a reckless and careless manner" was not the allegation *Page 472 of an unlawful act, but was the averment of a conclusion, an ultimate characterization of the act of driving, which, however, did not indicate whether the negligence consisted of an unlawful act or the careless performance of a lawful act. Eliminating the specific charges of negligence upon which the testimony failed and which were withdrawn from the jury, the information here was not sufficient to support a charge of manslaughter by negligence in driving on the left side of the road, within the test of the Townsend Case. Therefore, it was not sufficient to charge the analogous crime of negligent homicide under common-law rules of pleading. The information is sustainable, if at all, only by virtue of 3 Comp. Laws 1915, § 15751:
"When the offense charged has been created by any statute, or the punishment of such offense has been declared by any statute, the indictment shall, after verdict, be held sufficient to warrant the punishment prescribed by the statute, if it describe the offense, in the words of the statute."
This statute is not new nor its construction doubtful. Designed to eliminate some of the redundancy and finespun technicalities of common-law indictments, it cannot be extended to omit essentials of the offense or allegations necessary to fulfil the constitutional right of the accused "to be informed of the nature of the accusation." Its scope has been considered in many cases and the result summed up in People v. Glazier,159 Mich. 528, 537:
"It is generally sufficient to charge a statutory offense in the language of the statute, and to state the crime charged, and not the evidence thereof. The principal, if not the only, exceptions to this rule are where the statutory definition of the offense does *Page 473 not include all of its elements, or 'where the words of the statute may by their generality embrace cases which, while falling within its literal terms, are not within its meaning or spirit.' "
Both in this State and elsewhere it is the rule that where a statute uses general or generic terms in describing an offense, does not sufficiently define the crime or set out all its essential elements, or where a charge in the language of the statute charges a mere legal conclusion, an information which alleges the crime in the words of the statute is not sufficient, but a more particular statement of facts is necessary. 14 R. C. L. p. 187; 31 C. J. pp. 709-713;People v. Hamilton, 71 Mich. 340. See, also, Enders v. People,20 Mich. 233; People v. Marion, 28 Mich. 255;Brown v. People, 29 Mich. 232; People v. Olmstead, 30 Mich. 431; Chapman v. People, 39 Mich. 357; Joyce on Indictments (2d Ed.), § 459 et seq; United States v. Reese,92 U.S. 214.
Negligence is a general word. Its legal definition is about as indefinite as the word itself. It has not such concrete significance in the language that it charges, to general understanding, a definite act or omission. Depending upon circumstances, it requires statement of particular facts to disclose its elements in a given case, and the specific acts of negligence should be stated in an information. Charging an act as having been done negligently, without specifying in what the negligence consisted, is no more enlightening than would be a blanket charge of general fraud or crime. An information in the language of the statute would no more inform an accused of the nature of the accusation than would a charge of false pretenses without stating the pretenses, or fraud without stating the representations *Page 474 or means, or crime without designating the offense. It can hardly be gainsaid that the constitutional requirement is one of fairness, that the accusation shall be made so plain that an accused of ordinary intelligence may comprehend it, and so specific that he may fairly prepare his defense. An information for negligent homicide in the language of the statute throws upon the accused the burden of canvassing the realm of statutory regulations covering the operation of vehicles and of being prepared to defend against claim of breach of any or all of them; and, having exhausted the statutes, the accused must go further and imagine and prepare to meet all the ways in which ingenious counsel might conceive that he failed to act as counsel might claim a reasonably prudent person would have acted under the circumstances. It is easy for the people to specify the negligence. The State should not be permitted to lie in wait for an accused.
Nor, if the specification of negligence need not be set up in the information, can the accused be assured of knowledge of the precise charge by demanding an examination. It is common practice for prosecutors to present only sufficient witnesses at the examination to hold the accused and to save the telling evidence for the trial. An information in general terms would offer an opportunity for grossly unfair advantage to be taken of the accused through suppression of the claims of negligence in the information and on the examination and their disclosure without warning on the trial. Aside from the unfairness of the general information, it is, of course, the rule that failure to demand an examination does not called defective information. The defendant is not called upon to act nor to defend himself *Page 475 until he has been confronted by a proper charge of a specific offense alleged in such a way as to fulfil the constitutional test.
In my opinion, the offense provided by this statute is peculiarly one which demands and ought to demand special particularity of statement to inform the accused of the nature of the accusation. The statute goes a long way in imposing criminal liability on the commission of what may be innocent and unintentional acts. It expressly eliminates wilfulness and wantonness as elements of the crime, and involves no suggestion of moral turpitude. It even does not require that the accused shall have been conscious that he was negligent. It sets up no definite standard of conduct nor test of negligence. A jury, after the accident has happened and from testimony of what occurred, formulates a test of what defendant should or should not have done and then measures his conduct by it. Contributory negligence is not a defense, and whatever care the defendant may have used, or tried to use, his fate ultimately hangs upon the variable standard arising out of the personnel of the jury. The statute covers no uncommon and unusual employment of dangerous weapons or instrumentalities. It lowers over the ordinary, everyday life of millions of people in pursuit of their necessary, lawful, and laudable vocations and of proper and healthful pleasures. It would be a reproach to our system of jurisprudence if on accusation of such a crime the person accused must wait until the testimony is presented in order to ascertain the violation of law or the specific negligence with which he is charged.
Nor can I agree that this is a place for the application of 3 Comp. Laws 1915, § 14565, used in People v. Ryczek, supra, which provides affirmance of conviction *Page 476 unless, on the whole case, the court finds a miscarriage of justice. The issue has gone beyond Kalle Maki and his case, and is one of fundamental and constitutional rights of an accused to be informed of the nature of the accusation.
In my opinion, an information under the negligent homicide statute must state specifically the negligence which is relied upon as the cause of death.
Judgment reversed, and new trial ordered.
FELLOWS, CLARK, McDONALD, and POTTER, JJ., concurred with FEAD, J.