Defendant was arrested, informed against, and convicted of the crime of involuntary homicide under section 1, Act No. 98, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 15226 [2-4]), which provides:
"Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of the crime of negligent homicide." * * *
No general warrants could lawfully issue at common law. Our Constitution has embodied that idea in very clear and express terms. Robison v. Miner and Haug, 68 Mich. 549. It provides that in every criminal prosecution the accused shall have the right to be informed of the nature of the accusation against him. Section 19, art. 2, Constitution of Michigan. It prohibits depriving anyone of life, liberty, or property without due process of law. Section 16, art. 2, Constitution of Michigan. No man's rights can be submitted, under a constitutional government, to the discretion of anybody. In re Frazee,63 Mich. 396 (6 Am. St. Rep. 310); Robison *Page 477 v. Miner and Haug, supra. General warrants and writs of assistance have no place in the criminal jurisprudence of this State. No man should live in a state of uncertainty as to whether he is a criminal or not. Every man has a right to know what acts violate and what do not violate the criminal law. General charges of criminality are insufficient. Robison v.Miner and Haug, supra. No one can be convicted unless he is clearly and unequivocally within the language of the statute alleged to be violated. There are no constructive criminal offenses. United States v. Lacher, 134 U.S. 624 (10 Sup. Ct. 625); United States v. Bathgate, 246 U.S. 220 (38 Sup. Ct. 269); Fasulo v. United States, 272 U.S. 620 (47 Sup. Ct. 200). It certainly would be dangerous if this statute, which provides for punishing the results of immoderate driving without defining what immoderate driving is and the results of driving in a careless, reckless or negligent manner without defining or naming the things which constitute careless, reckless, or negligent driving, were permitted to stand. What conduct, under this statute, is criminal, and what innocent? There is no definition of criminality. What is or is not criminal conduct is made to rest in the sound judgment or discretion, of the court or jury. In one case upon a given state of facts defendant's conduct may be found to be criminal, — in another case, under the identical state of facts, defendant's like conduct may be found to be innocent, depending in each case upon the judgment, discretion, opinion, whim, or caprice of the court or jury. There is no certain rule of conduct, the violation of which constitutes criminality. Whether anyone is a criminal or not under an admitted state of facts ought not to rest upon the discretion of anyone. As said in United States v. *Page 478 Reese, 92 U.S. 214, 221, approved in James v. Bowman,190 U.S. 127 (23 Sup. Ct. 678):
"It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department."
In this case the statute denounces all operation of vehicles at an immoderate rate of speed and all careless, reckless, or negligent operation, regardless of its nature, kind, or character, and leaves it to the court to step within this circle of proscribed conduct and determine, in the exercise of its sound judgment and discretion, what conduct is criminal and what is innocent. This certainly cannot, in a civilized community operating under a Constitution like that of Michigan, be done. As said in Ware v. Branch Circuit Judge, 75 Mich. 488:
"No principle is more universally settled than that which deprives all courts of power to infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedents."
Suppose a man is arrested and informed against under this statute. With what is he charged? Is he charged with driving at night without proper lights, driving on the wrong side of the highway, driving at an excessive rate of speed, or driving while intoxicated? And upon what state of facts may he be convicted? What conduct, on the part of the defendant must be charged and proven before he can be convicted and sentenced? It seems to me to be established law that no one may be convicted of a crime unless he has violated some immutable *Page 479 standard of personal conduct prescribed by the State; that no statute is constitutional which authorizes general conduct to be found criminal or innocent in the discretion of the court. There is, in the statute under consideration, no fixed element necessarily inhering in the transaction complained of which stamps it with the unerring mark of criminality. The legal rule by which guilt or innocence is to be determined is not fixed and inflexible, but depends upon the judgment and discretion of the court or jury, and there are as many different standards of criminality as there are judges, courts, or juries. What is an immoderate rate of speed? It is a rate of speed too high or too low under all the circumstances of the case. Whether there was an immoderate rate of speed in a particular case depends upon the sound judgment and discretion of the jury. It is not driving at any specific rate — it is such a rate as is immoderate, whether fast or slow. The standard is not prescribed by statute. Criminality may exist regardless of the rate of speed. The jury must determine and fix this element of the crime, if the defendant is charged with driving at an immoderate rate of speed. If defendant is charged, in the language of the statute, with careless, reckless, or negligent driving, whether he was careless, reckless, or negligent, likewise depends upon the sound judgment and discretion of the court or jury. There is no fixed standard of conduct; no one knows or may know whether he is violating the law or not at any particular time. Negligence is a want of ordinary care, failure to exercise due care and caution, failure in one's duty to observe that degree of care which the law imposes for the protection of interests likely to be injuriously affected by the want of it. The degree of care which the law imposes for the protection *Page 480 of the interests of others is reasonable care under all the circumstances of the case. Reasonable care is such care as the jury find an ordinarily prudent man would exercise under all the circumstances. In the last analysis, while the statute denounces driving at an immoderate rate of speed and driving in a careless, reckless, or negligent manner, there is no fixed, infallible, or certain standard of conduct, the failure to observe which is criminal, and the observance of which keeps one within the realm of innocence.
In People v. Campbell, 237 Mich. 424, 434, Mr Justice WIEST said:
"The statute * * * leaves questions of whether the rate of speed was immoderate or operation of the vehicle careless, reckless or negligent to depend upon the particular circumstances of each case. It is an innovation in the law of homicide, departs from the doctrines of common-law manslaughter and carries its own yardstick for measuring culpability."
This yardstick is so ductile as to be easily elongated to include acts innocent in themselves or compressed to exclude most culpable conduct. There is no fixed standard of measurement at all. Defendant's conduct is measured by the flexible discretion of the court or jury. Such standard may shift with the veering currents of public sympathy or indignation. Law and fact, guilt or innocence, rest in the discretion of a court or jury. Unpopular defendants may be convicted and popular defendants acquitted for identical acts. This statute is well suited to be the instrument of arbitrary power. Its validity is consistent only with a government resting on personal discretion and not on fixed principles of law. *Page 481 It may comport with tyrannical despotism, but not with constitutional liberty.
In United States v. Sharp, Pet. C. C. 118, 27 Fed. Cas. 1041, Mr. Justice Washington said:
"Laws which create crimes ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid."
In Chicago, etc., R. Co. v. Dey, 35 Fed. 866 (1 L.R.A. 744), the question was before the court of the validity of a statute making it a criminal offense to charge more than a fair and reasonable rate for transportation. It is said:
"Section 23 provides that if any railroad company shall charge more than a fair and reasonable rate of toll, or make any unjust charge prohibited in section 2, it shall be deemed guilty of extortion, and, by section 26, be subject to criminal prosecution, with a large penalty. Now the contention of complainant is that the substance of these provisions is, that, if a railroad company charges an unreasonable rate, it shall be deemed a criminal, and punished by fine, and that such a statute is too indefinite and uncertain, no man being able to tell in advance what in fact is, or what any jury will find to be, a reasonable charge. If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant's criticism, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it. In Dwar. St. 652, it is laid down 'that it is impossible to dissent from the doctrine of Lord Coke, that acts of parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in legal matters.' See, also, United States *Page 482 v. Sharp, Pet. C. C. 122; The Enterprise, 1 Paine, 34; Bish. St. Cr. § 41; Lieb. Herm. 156. In this the author quotes the law of the Chinese penal code, which reads as follows:
" 'Whoever is guilty of improper conduct, and of such as is contrary to the spirit of the laws, though not a breach of any specific part of it, shall be punished at least forty blows; and when the impropriety is of a serious nature, with eighty blows.'
"There is very little difference between such a statute and one which would make it a criminal offense to charge more than a reasonable rate."
In Tozer v. United States, 52 Fed. 917, the language ofChicago, etc., R. Co. v. Dey was approved, and the court by Judge Brewer, later one of the Justices of the Supreme Court of the United States, said:
"In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty."
In Railroad Commission of Indiana v. Railroad Co.,179 Ind. 255, 264 (100 N.E. 852), it is said:
"When the legislature undertook to define an offense and provide punishment therefor in this act, it should have expressed itself in plain and specific terms. 'Every man should be able to know with certainty when he is committing a crime.'United States v. Reese (1875), 92 U.S. 214. 'In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness *Page 483 and certainty.' Tozer v. United States (1892), 52 Fed. 917. 'No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.' Chicago, etc., R.Co. v. Dey (1888), 35 Fed. 866, 876 (1 L.R.A. 744). An act which leaves the crime to be determined by the jury or any official body is void. A penal statute, to be enforceable, must be general in its scope and specific and certain in its provisions."
In State v. Comeaux, 131 La. 930 (60 So. 620), it is said:
"The defining of crimes and the imposition of the penalties for their commission, devolve upon the legislature alone."
In State v. Mann, 2 Or. 238, it is said:
"A crime or public offense is some act forbidden by law; and it is a well settled rule of law that no one can be punished for doing an act, unless it clearly appears that the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it. The act constituting the offense should be clearly and specially described in the statute, and with sufficient certainty, at least, to enable the court to determine, from the words used in the statute, whether the act charged in the indictment comes within the prohibition of the law."
In Brown v. State, 137 Wis. 543, 548 (119 N.W. 338), it is said:
"It is a most fundamental canon of criminal legislation that a law which takes away a man's property or liberty as a penalty for an offense must so clearly define the acts upon which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal." *Page 484
In 8 R. C. L. p. 58, it is said:
"In the exercise of its power to declare what shall constitute a crime or punishable offense, the legislature must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain rule of conduct. Hence, the making of an unreasonable charge for services cannot be made criminal under a statute creating no test of reasonableness in this respect."
In United States v. Cohen Grocery Co., 255 U.S. 81, 89 (41 Sup. Ct. 298, 14 A.L.R. 1045), it is said:
"The sole remaining inquiry, therefore, is the certainty or uncertainty of the text in question, that is, whether the words 'That it is hereby made unlawful for any person wilfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,' constituted a fixing by congress of an ascertainable standard of guilt and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them. That they are not, we are of opinion, so clearly results from their mere statement as to render elaboration on the subject wholly unnecessary. Observe that the section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below, in its opinion, to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury. * * * *Page 485
"That it results from the consideration which we have stated that the section before us was void for repugnancy to the Constitution is not open to question."
The Lever act, under consideration in the case last cited, prohibited no specific act. It declared it a penal offense to charge more than a reasonable price for necessary articles of life. Says Mott, Due Process of Law, p. 357:
"This would result in a different rule being applied by each jury according to their varying ideas of reasonableness, and it was preposterous to ask merchants to obey a law which they could not know."
In 12 C. J. p. 1203, it is said:
"A statute creating an offense is void for want of due process of law which fails to prescribe with reasonable certainty the elements of the offense."
In Commonwealth v. Pentz, 247 Mass. 500 (143 N.E. 322), it is said:
"Statutes which create crimes must be definite in specifying conduct which is commanded or prohibited. They must afford some comprehensive guide, rule or information as to what must be done or what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements. Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. United States v. Brewer, 139 U.S. 278, 288 (11 Sup. Ct. 538); Commonwealth v. Badger, 243 Mass. 137 (137 N.E. 261);Commonwealth v. Atlas, 244 Mass. 78, 82 (138 N.E. 243)."
A criminal statute is void which prescribes no fixed standard of conduct which it is possible to know (InternationalHarvester Co. v. Kentucky, *Page 486 234 U.S. 216 [34 Sup. Ct. 853]; Collins v. Kentucky, 234 U.S. 634 [34 Sup. Ct. 924]; American Seeding Machine Co. v. Kentucky,236 U.S. 660 [35 Sup. Ct. 456]), or which fails to fix with reasonable certainty the elements of the offense, because violative of the due process clause of the State Constitution and the 14th Amendment of the Constitution of the United States.
In Connally v. Construction Co., 269 U.S. 385 (46 Sup. Ct. 126), in discussing the criminal features of the Oklahoma "current wage" statute, it is said:
"The terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. * * * A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."
In Cline v. Frink Dairy Co., 274 U.S. 445 (47 Sup. Ct. 681), the rule of United States v. Cohen Grocery Co., 255 U.S. 81 (41 Sup. Ct. 298, 14 A.L.R. 1045), was approved, and the court said of the Colorado anti-trust statute:
"Such an exception in the statute leaves the whole statute without a fixed standard of guilt in an adjudication affecting the liberty of the one accused. An attempt to enforce the section will be to penalize and punish all combinations in restraint of trade in a commodity when in the judgment of the court and jury they are not necessary to enable those engaged in it to make it reasonably profitable, but not otherwise. Such a basis for judgment of a crime would be more impracticable and complicated than the much simpler question in the Cohen GroceryCase, whether a price charged was unreasonable or excessive. *Page 487 The real issue which the proviso would submit to the jury would be legislative, not judicial. * * * We are now considering a case of State legislation and threatened prosecutions in a State court where only the Fourteenth Amendment applies; but that amendment requires that there should be due process of law, and this certainly imposes upon a State an obligation to frame its criminal statutes so that those to whom they are addressed may know what standard of conduct is intended to be required."
In Small Co. v. Refining Co., 267 U.S. 233 (45 Sup. Ct. 295), it is said of United States v. Cohen Grocery Co., supra: "The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions." And hence it is said the rule of due process of law is the same in civil and in criminal cases. This is true in so far as compliance with the general law of the land is concerned. In civil suits for damages for negligence, the criterion is whether common social duty would, under the circumstances, have suggested more circumspect conduct. If it would, the defendant may be civilly liable, but in civil cases there is no such expressly declared constitutional mandate as in criminal cases requiring the accused to be informed of the nature of the accusation against him, which, as construed by the courts, means that an offense must not be so indefinitely described by statute that men must guess at its meaning, but that the essential elements of the offense must be stated in clear and definite terms. If it fails to do so it does not comport with due process of law. Yu CongEng v. Trinidad, 271 U.S. 500 (46 Sup. Ct. 619).
Applying the above rules to the statute under consideration, the statute under which the defendant was arrested, informed against, and convicted, fails *Page 488 to inform defendant of the nature and cause of the accusation against him; forbids no specific or definite act or acts upon the part of defendant; confines the subject-matter of the investigation of defendant's criminality to no specific element essentially inhering in the transaction under consideration; does not enable the defendant to know or to ascertain from the complaint, warrant, or information filed against him, with what he is charged; does not enable defendant to prepare for his defense by procuring evidence to disprove that which is not specifically charged against him; throws out a net and denounces all immoderate, careless, reckless, or negligent driving and leaves it to the court to determine what conduct, upon the part of the defendant, falls within or without the general terms of the statute; permits the court or the jury to fix and determine the standard of conduct by which the criminality of defendant is to be determined rather than declaring such standard by the statute itself; is open to all the objections which have in the past been made against general warrants; leaves the question of the ascertainment of a legal element of the offense with which the defendant is charged to the discretion of the court or the discretion of the court and jury, instead of fixing and defining it and establishing it by a law itself. An essential element of the offense is to be fixed by men and not by law.
Driving at an immoderate rate of speed or in a careless, reckless, or negligent manner involves a choice of conduct, the exercise of human will. These things are expressly excluded from the section of the statute in question. Man does not choose between kinds of conduct without intending to do so. He exercises his will to execute that intent in driving faster than the legal limit, on the wrong side of the *Page 489 road, without lights, while intoxicated, in violation of local ordinances, or in defiance of traffic signals. These acts involve the intent and the concurrence of the will of the actor — his choice to do or to avoid doing. They may be criminal under the second section of the statute. The concurrence of the will when it has the choice to do or avoid an act is the only thing that renders human conduct praiseworthy or culpable. 4 Blackstone Com., chap. 2. The State at great expense builds highways, licenses motor vehicles and drivers to operate them thereon, and by the section of the act in question provides for the conviction of homicide of such drivers for regrettable chance casualties arising from unexpected contingencies, involving no knowledge on the part of the accused, no choice of conduct to be observed to avoid such dire consequences.
Under parliamentary absolutism legislative enactments are law. The safeguards thrown around accused persons by the Constitution are perpetual prohibitions of tyrannical practices of old English criminal procedure. English cases do not involve the present question. Nothing can be due process of law which violates a constitutional right of the accused. 3 Baker, The Fundamental Law, 855.
A crime is an act committed or omitted in violation of a public law either forbidding or commanding it. 4 Blackstone Com., p. 5; Slaughter v. People, 2 Doug. 334.
"To declare what shall constitute a crime, and how it shall be punished, is an exercise of the sovereign power of the State, and is inherent in the legislative department of the government." People v. Hanrahan, 75 Mich. 611 (4 L.R.A. 751).
"Upon the legislature alone is conferred the power to fix the minimum and maximum of the punishment for all crimes."People v. Smith, 94 Mich. 644. *Page 490
The statute here involved does not fix and define the essential elements of criminality.
"The only rule of law is one which appeals to an outside standard, that of general experience; and the application of it, by whatever tribunal made, calls for a preliminary determination of something for which there is no legal test — a matter of fact, and not a matter of law — namely, the behavior, in a supposed case, of the prudent man." Thayer, A Preliminary Treatise on Evidence at Common Law, 228.
This standard, yardstick, or criterion by which guilt or innocence is to be determined "is reposed in the varying conscience of jurors, who are to conduct the inquiry ex postfacto." United States v. Bernstein, 267 Fed. 295.
The fundamental conception of law as a rule of action excludes legislative enactments which fix and declare no standard of conduct, permit the jury to fix that standard, and then measure the conduct of the accused by it. It makes the jury judges of the law and renders it indefinite and uncertain. Nothing legally denounces conduct as criminal which does not fix and declare a rule of action — a standard of conduct — compliance with which is innocent, defiance of which is criminal. Law is for the court, facts for the jury. When an essential element of a criminal law, fixing and defining the standard of conduct, the rule of action — which may be innocent or criminal in the discretion of the jury — is fixed by the jury — the jury makes the law by which the accused is tried.
By the statute the ascertainment and fixing of the standard of conduct, the criterion by which the guilt or innocence of the accused is to be determined in each particular case, rests with the judicial department of government. It is only after such ever-varying *Page 491 standard of conduct — resting, in each case, upon the discretion of the court or jury — has been fixed, that the tribunal may proceed to ascertain whether the acts and conduct of the accused comply with or violate that standard. When the judicial department fixes, as it must, in each case, the standard of conduct, the criterion by which the guilt or innocence of the accused is to be determined, it clearly exercises a legislative function. Our Constitution makes a tripartite division of all governmental powers. Section 1, art. 4. It declares that "no person belonging to one department shall exercise powers belonging to another." Section 2, art. 4. The statute under consideration attempts to authorize the judicial department to exercise a legislative function — to determine and fix an essential element, involved in each offense under it — in violation of the provisions of the Constitution above referred to. The statute violates section 19 of article 2, section 2 of article 4, and section 16 of article 2 of the Constitution of Michigan, and the 14th Amendment of the Constitution of the United States.
Precedents may be found to support any theory of tortious responsibility — where personal injury met with private vengeance, where a party accidentally killing another suffered the penalty of death, where a vehicle causing death was forfeited as a deodand, and many others — sustained upon the instinct of vengeance for injury or death. But for at least six centuries civilized men have drawn a distinction between accidents involving wantonness and wilfulness; and those resulting from acts unwittingly done; voluntary acts and involuntary acts; intentional acts and unintentional acts. The former were criminal, the latter not criminal. This statute bows to unthinking hysteria, reverses the concepts of *Page 492 criminality supported by centuries of progress, reverts to those of the dark ages. It seeks to carve out a new field of criminal responsibility, from which wantonness or wilfulness are expressly excluded. It permits a jury to convict, when in its opinion, based upon a post mortem examination of the facts, the defendant did what it thinks he ought not to have done.
In Miller v. Oregon, 273 U.S. 657 (47 Sup. Ct. 344), no opinion was written, the court treated the question involved as one of State law. Nash v. United States, 229 U.S. 373 (33 Sup. Ct. 780), as construed in International Harvester Co. v.Kentucky, 234 U.S. 216 (34 Sup. Ct. 853), goes no further than to recognize that, in cases involving negligence between the two extremes of the obvious illegal and the plainly lawful there is a gradual approach and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust. This is supported by the language, in relation to negligence in the opinion in Cline v. Frink Dairy Co., 274 U.S. 445 (47 Sup. Ct. 681), quoted by Mr. Justice NORTH herein. As I understand theobiter dicta of these cases, they indicate that inasmuch as it is difficult to define or classify, in cases involving negligence, what conduct may be criminal and what innocent, if it were attempted or done, injustice might result in some cases, therefore the door should be opened for injustice in all cases.
As said in Ex parte Siebold, 100 U.S. 371, 376:
"An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment." *Page 493
Defendant's conviction should be reversed and he discharged.
FEAD, CLARK, and McDONALD, JJ., concurred with POTTER, J.