Vanderbilt Law Review


James B. Earle

First Page



Homicide: Involuntary manslaughter by automobile was involved in the case of Smith v. State.' The evidence tended to show that while the defendant was operating his automobile at a speed of possibly 40 miles per hour, he attempted to turn at a dead-end intersection, skidded on loose gravel, and struck his victim at a point approximately four feet off the street. It also appeared that the victim was a child of six who was playing on a bridge leading to a school; that the accident occurred on Christmas day; and that the defendant had consumed an unknown quantity of intoxicating beverages at some time prior to the accident. On these facts the conviction for involuntary manslaughter, based on "willful and wanton negligence," was affirmed. Although there was some evidence of consumption of intoxicants, it was pointed out that the decision did not turn on that question so as to invoke the malum in se theory applicable to a homicide committed by an intoxicated driver, on which the leading Tennessee case is Keller v.State. The court indicated, however, that the Keller decision continues to have vitality. The instant decision is important in that it fills in another interstice in the distinction between "mere civil" or "merely simple" negligence and criminal negligence. The Supreme Court indicated its concern with making this distinction on this particular set of facts. However, application of this decision to future cases is tempered by the court's reiteration that each case of this sort must be determined on its particular facts.

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