(dissenting).
Defendant was a police officer. Late at night on the day charged in the indictment, he discharged his revolver against the ground, for the purpose of frightening some young men or boys who had been about the streets engaged in Hallowe’en pranks, thus to induce them to go to their homes. The bullet from the revolver struck an object on the ground and was deflected and one of the young men received an injury therefrom. The officer was not actuated by malice or evil intent. De*431fendant was indicted for an assault in the second degree. The court charged the jury that, if the act of discharging the revolver was reck-1 less or careless, defendant might be convicted of an assault in the third) degree; an assault and battery under our statutes. I am unable to concur in the conclusion of the court that, as applied to the facts stated, the instruction was not erroneous. A reckless act, committed without regard to the life or safety of others and resulting in the death of another, may, under certain circumstances, constitute the crime of manslaughter. But an act of mere carelessness or negligence, though it re-1 suit in injury to another, does not constitute a crime, though the guilty S party may be liable in a civil action for damages. On the facts here stated the criminal intent is wholly lacking. In a similar case it has been held that there is even no civil liability. Degenhardt v. Heller, 93 Wis. 662, 68 N. W. 411, 57 Am. St. 945; Donner v. Graap, 134 Wis. 523, 115 N. W. 125. If there be no civil liability in such case, clearly there can be no conviction in a criminal prosecution. The authorities cited in the opinion do not, as I read them, justify the con-f elusion that mere negligence is a crime. Reckless shooting of firearms® is made a misdemeanor by G. S. 1913, § 8803, and, had defendant been charged with a violation of that statute, the instructions of the court would have been less objectionable. However, neither that statute nor section 8606, can be referred to in support of the conviction in the ease at bar. Neither, statute has any application to an assault and battery. , The act of defendant in discharging his revolver to frighten the boys was not an unlawful act in itself; if unlawful at all it was so because prohibited by section 8803, supra. But the violation of such a statute will not justify a conviction of assault and battery upon the ground of negligence. It might be otherwise if the act was unlawful in itself and without reference to the statutory prohibition. Commonwealth v. Adams, 114 Mass. 323, 19 Am. Rep. 362.
For these reasons I respectfully dissent.