Appeal by defendant Mary Penny from a judgment of conviction of involuntary manslaughter.
Defendant was charged with a violation of section 192, subdivision 2, of the Penal Code. That section provides that manslaughter is the unlawful killing of a human being, without malice. "2. Involuntary — in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle."
For seven years defendant had been engaged in "face rejuvenation" in the city of Los Angeles. It is conceded
Defendant had a year's training with a Madame Bergeron (now deceased) in Los Angeles and approximately three months' training with one Geraldine Gorman in New York. In New York, she received the formula which she used in her work. The formula consisted of one ounce of water, a heaping tablespoon of resorcinol (of the same chemical group) and 16 drops of phenol (carbolic acid).
Kay Stanley, the victim, had consulted with defendant some seven months earlier about having her face treated to remove wrinkles and pock marks, but did not have the money to do it at that time. Around Easter time of 1953, she again asked defendant to treat her face, but defendant was to be away and could not do it then. On the morning of May 4, 1953, Kay Stanley arrived at about 10 in the morning at defendant's home where she was to stay during the treatment. Kay's face was first washed with warm water and soda; the formula was then applied with a cotton wrapped wooden applicator to Kay's cheeks, a square inch at a time. After each application, the area was pressed with sterile gauze to remove excess moisture. The entire forehead was covered as well as the eyelids, the process taking about two hours. The treated area was then covered with gauze and taped with small pieces of tape which overlapped and covered the area; regular waterproof adhesive tape was then put on over the other tape; this formed a mask over the upper portion of the patient's face. After the taping had been completed, Kay walked to an adjoining room where she had lunch, listened to the radio and looked at magazines. At approximately 6 in the evening, defendant proceeded to treat the lower half of Kay's face in the same manner as she had treated the upper portion which took about three quarters of an hour. When the treatment was completed, Kay asked defendant if she could sit up for awhile before the taping was started; she sounded sleepy. The defendant told her she could and said she would get her a glass of water. When defendant returned with the water, Kay said, "I feel a little bit faint" and lay back as though in a faint. Defendant asked her how she felt but received no answer. When defendant tried to lift her she found she was dead weight and felt that she had fainted. Defendant tried unsuccessfully to call a Dr. Wallace
Defendant called her attorney who called the police.
The finding, after an autopsy had been had, was that the immediate cause of death was phenol (carbolic acid) poisoning and edema of the glottis due to "application of phenol-containing mixture to the face and neck." Other findings were that 5.1 milligrams of phenol per 100 grams were found in the liver and 2.9 milligrams of phenol per 100 grams were found in the blood of the victim. It was the opinion of Dr. Newbarr, prosecution witness and chief autopsy surgeon for the Los Angeles coroner's office, that these findings were the result of the application of a solution containing more than 10 per cent phenol to the face and neck of the victim. It was the opinion of Mr. Abernathy, the toxicologist, that the reddish-brown discoloration of the victim's face was a third degree burn caused by phenol, and that the normal finding of phenol in a normal human being would be practically zero.
There was evidence in the record which showed that the victim had been taking reducing pills prescribed by a Texas doctor; that in order to obtain replacement of the pills, it was necessary for her to have her heart examined and blood pressure taken by a local doctor; that prior to going to the defendant's home for the face rejuvenation treatment she had had her heart and pulse examined and her blood pressure taken and that all findings were normal.
Defendant contends that the following instruction was without basis in the evidence. "Any licensed cosmetologist who applies to any human being a solution of phenol greater that ten per cent is guilty of a misdemeanor.
"This is an unlawful act not amounting to a felony. Business & Professions Code, Section 7415." (Emphasis added.)
As heretofore pointed out, it is admitted that defendant was not licensed as a cosmetologist.
It is contended that the just quoted instruction was calculated to mislead and confuse the jury when considered with the following instruction: "Every person who engages in, or attempts to engage in, the practice of cosmetology or any branch thereof without a license therefore issued by the
"The art of cosmetology includes the beautifying of the face, neck, arms, bust or upper part of the human body, by the use of cosmetic preparations, antiseptics, tonics, lotions or creams.
"A violation of this law is an unlawful act not amounting to a felony.
"Business & Professions Code, Section 7325
"Business & Professions Code, Section 7321(b) [sic] [c]."
It is argued that under these two instructions defendant could have been convicted (1) if the jury believed she used a solution containing more than 10 per cent phenol and had a license; or (2) that she was guilty because she was required to have a license and had none.
DUE CAUTION AND CIRCUMSPECTION
The second clause of section 192, subdivision 2, of the Penal Code provides that one is guilty of manslaughter if a human being is killed in the commission of a "lawful act which might produce death, in an unlawful manner, or without due caution and circumspection...." It has been held that without "due caution and circumspection" is the equivalent of "criminal negligence" (People v. Driggs, 111 Cal.App. 42 [295 P. 51]; People v. Hurley, supra, 13 Cal.App.2d 208) and the jury was so instructed. However, the jury was also instructed that "Due caution and circumspection ... mean such caution and circumspection as are reasonably appropriate to avoid injury to one's self and others, under the conditions at hand as they would be viewed by an ordinarily reasonable person in the same situation as the person whose conduct is in question. To exercise due care and circumspection is to take those proper precautions which a person of ordinary prudence would use in the same circumstances." Defendant contends this instruction was prejudicially erroneous in that it gave the jury the civil standard of negligence as a guide in a case where criminal negligence was involved.
If we assume that a treatment aimed at removing wrinkles from the human face is a "lawful act," it must next be determined whether such act was one which "might cause death." Defendant admitted she knew the substances used were poisons; that they were dangerous substances; that their indiscriminate use could be dangerous. Inasmuch as defendant was knowingly using poison in her treatment solution, the jury could have concluded that her treatment was one which could have caused death.
While the last quoted instruction was substantially
Defendant relies on the rules set forth in People v. Driggs, supra, 111 Cal.App. 42, and People v. Hurley, supra, 13 Cal.App.2d 208, wherein the rule was said to be: "In order to constitute criminal negligence, there must enter into the act some measure of wantonness or flagrant or reckless disregard of the safety of others, or wilful indifference. If no one of these elements enters into the act, the person charged cannot be held guilty of criminal negligence." (People v.
The law in California as to what constitutes "criminal negligence" or a lack of "due caution and circumspection" is confused.
The cases of People v. Driggs, supra, 111 Cal.App. 42, and People v. Hurley, supra, 13 Cal.App.2d 208, which held that some measure of wantonness or flagrant or reckless disregard of the safety of others must enter into defendant's conduct before he could be held guilty of criminal negligence, were disapproved in People v. Pociask, supra. The Driggs case involved assault with intent to commit murder; the Hurley case involved death caused by the driving of an automobile. The Pociask case which disapproved them involved the negligent driving of an automobile and the interpretation of a statute (former section 500, Vehicle Code) which specifically made criminal the negligent driving of a vehicle. The instruction in People v. Wilson, supra, 193 Cal. 512 (which is substantially the same as the one here involved) was approved by the Pociask case. The Wilson case was a manslaughter conviction arising out of the negligent driving of a motor vehicle. The court in the Pociask case, supra, comments on the opinion of the Supreme Court in denying a hearing in the case of People v. Seiler, 57 Cal.App. 195 [207 P. 396], wherein it was said: "The statute (Pen. Code, § 192, subd. 2) defines involuntary manslaughter of this specific character as the unlawful killing of a human being, involuntarily, but `in the commission of a lawful act which might produce death ... without due caution and circumspection.' In order to constitute this kind of manslaughter the act may be lawful but it must be one which might produce death, and which does produce death, and it must be committed without due caution and circumspection. The lack of due caution and circumspection need not go to the extent of being wanton or reckless, although it might possibly be such as would be defined as culpable." (Emphasis added.) In 1941 the negligent
People v. Driggs, supra, 111 Cal.App. 42, 47, involved an assault with intent to commit murder. The rule was said to be: "In order to constitute criminal negligence [lack of due caution and circumspection], there must enter into the act some measure of wantonness or flagrant or reckless disregard of the safety of others, or wilful indifference. If no one of these elements enters into the act, the person charged cannot be held guilty of criminal negligence." This rule was erroneously (28 Cal.L.Rev. 418, 520) disapproved in People v. Pociask, supra, 14 Cal.2d 679, 684. The Pociask case involved the interpretation of former section 500 of the Vehicle Code which made mere negligent driving a criminal offense.
In People v. Sidwell, 29 Cal.App. 12 [154 P. 290], defendant was charged with involuntary manslaughter; the death occurred through the medium of a revolver. It was there held (p. 17) that "it will be observed that, while involuntary manslaughter may be committed in two different ways, the legislature has not recognized, as between those two ways [192, subd. 2], any distinction in the degree of turpitude characterizing that crime. In other words, the crime is that of involuntary manslaughter, whether the killing be committed in the execution of an unlawful act, etc., or in the execution of a lawful act, etc., or where death, not willfully or intentionally produced, is, nevertheless, caused by the gross or culpable negligence of the defendant — negligence which, in degree, goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable." (Emphasis added.)
In People v. Sica, 76 Cal.App. 648, 651 [245 P. 461], it was held that the "reckless" handling of firearms so as to cause death constituted manslaughter committed in the commission of a lawful act, which might produce death, "without due caution and circumspection."
In People v. Searle, 33 Cal.App. 228, 231 [164 P. 819], the homicide was committed through criminal negligence in handling a gun. The court said, "`An unintentional homicide committed through the negligent handling of a firearm in a way indicating a reckless disregard of life is manslaughter. It is negligence to point a firearm at another without examining to see whether or not it is loaded, or to handle or use it in a place where a discharge is likely to injure another, as in a highway.' (1 Michie on Homicide, p. 253.)"
In People v. Mount, 93 Cal.App. 81 [269 P. 177], a death
In People v. Montecino, 66 Cal.App.2d 85, 102 [152 P.2d 5], which involved the death of an elderly, bedridden woman by reason of the brutal treatment and lack of care on the part of defendant, the court held that "it is established in the State of California that involuntary manslaughter may result even though the conduct of the offender is not wanton or reckless. See comment by the Supreme Court in denying a hearing in People v. Seiler (1922), 57 Cal.App. 195 [207 P. 396], ..." The Seiler case, as heretofore noted, was a negligent driving case.
In People v. Chavez, 77 Cal.App.2d 621, 628 [176 P.2d 92], defendant was convicted of involuntary manslaughter because she failed to use "due care" or "any of the care" necessary for the welfare of her newborn baby. It was said: "While it is conceivable that in some such cases the mental and physical condition of a mother, at the time, might prevent her from exercising that reasonable care which would ordinarily be required ..." that such was not the case at hand. (Emphasis added.)
In People v. Neff, 117 Cal.App.2d 772 [257 P.2d 47], death occurred by reason of carbon monoxide escaping from a badly vented gas heater. The court there cited the automobile-manslaughter cases, particularly People v. Pociask, supra, 14 Cal.2d 679, and People v. Seiler, supra, 57 Cal.App. 195, in discussing the instructions given. The following instruction was given there: "Due caution and circumspection, as those words are used in the instruction just given, means such caution and circumspection as are reasonably appropriate to avoid injury to one's self and others, under the conditions at hand as they would be viewed by an ordinary reasonable person in the same situation as the person whose conduct is in question. To exercise due care and circumspection is to take those proper precautions which a person of ordinary prudence would use in the same circumstances. [Conduct does not need to amount to wantonness or to recklessness to show and to constitute a lack of due care and circumspection.]" The District Court of Appeal there held: "The court should not have included in its instructions the statement to the effect that a lack of due caution and circumspection need not amount to wantonness or recklessness.
In People v. Freudenberg, supra, 121 Cal.App.2d 564, 580, where death resulted from a firearm, the jury was held properly instructed as follows: "The doing of an act ordinarily lawful which results in the death of a human being may be manslaughter where the act, being one which might cause death, is performed in an unlawful manner or without due caution or circumspection. When a person is doing anything dangerous in itself or has charge of anything dangerous in its use and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances, and the death of another results therefrom, his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life."
In People v. Mahoney, 201 Cal. 618, 629 [258 P. 607], defectively constructed grandstands collapsed and a woman was killed as a result thereof. While very few facts appear in the opinion, the court said: "The prosecution of the appellant was had under section 192 of the Penal Code, defining the crime of manslaughter, and upon the theory that in the erection and construction of the stands the appellant did not exercise due caution and circumspection. We deem it unnecessary to review the nearly two thousand pages of testimony taken in the court below. It suffices to say that there is evidence from which the jury might well conclude that the grandstand which collapsed was so negligently constructed as to be unable to carry the tremendous load placed upon it." (Emphasis added.) It would appear that in this particular case, "negligence" and "due caution and circumspection" were considered synonymous.
In People v. McGee, 31 Cal.2d 229, 238 [187 P.2d 706], which involved a manslaughter conviction, it was held proper to give the code definition of involuntary manslaughter (Pen. Code, § 192, subd. 2) because "If defendant, as he testified, discharged the pistol with intent only to frighten, and not to
In People v. Southack, 39 Cal.2d 578, 584 [248 P.2d 12], a manslaughter case involving a gun, the court said: "The above summarized evidence is sufficient to support a finding of manslaughter, either voluntary in `heat of passion' (Pen. Code, § 192, subd. 1) or involuntary. The involuntary manslaughter might be `in the commission of an unlawful act, not amounting to felony' (Pen. Code, § 192, subd. 2), for it could be found that defendant unlawfully exhibited the gun in an angry manner, a misdemeanor (Pen. Code, § 417), or it might be `in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection' (Pen. Code, § 192, subd. 2), for it could be found that defendant was simply holding the gun but that he was negligent in so doing. (See People v. McGee (1947), 31 Cal.2d 229, 238 [187 P.2d 706]; People v. Carmen (1951), 36 Cal.2d 768, 774 [228 P.2d 281].)" (Emphasis added.)
We have here endeavored to set forth as many cases involving involuntary manslaughter by means other than vehicle as could be found in the California Reports to show the earliest and latest pronouncements of this court and any appellate court on the subject. The earliest case found on the subject was People v. Keefer (1861), 18 Cal. 636, wherein the court said: "We know nothing of the facts of the case, and intimate no opinion as to the merits of the controversy." It was also said, by way of discussion, that "No doubt exists that a man may be guilty of manslaughter under some circumstances by his mere carelessness. But this rule has no application to a statutory offense like that of which the defendant was convicted." (Emphasis added.) The Driggs case, supra, since overruled, pointed out that some measure of wantonness, recklessness, or the like must enter the picture before one could be guilty of criminal negligence, or a lack of due caution and circumspection.
Two law review notes (25 Cal.L.Rev. 1; 28 Cal.L.Rev. 518) seek to harmonize the negligent homicide decisions (under the Vehicle Code) with the involuntary manslaughter ones in California. It should be noted that these articles were both written prior to 1945 when the involuntary manslaughter statute was enacted in its present form.
It is pointed out in 28 California Law Review 518, 519, that a review of the available authority of the half century prior to 1872 (when section 20 of the Penal Code was enacted) supports the conclusion that "criminal negligence" had a common law meaning at that time which must be referred to in determining the effect of its inclusion in section 20. The English reports of the period reveal a well established rule that gross negligence is necessary in criminal prosecutions, and that the term "criminal negligence" was used along with many others to characterize the degree of neglect required. It is said that there was nothing to show that the Legislature intended to except section 192 of the Penal Code from the operation of section 20 of the same code. In speaking of People v. Pociask, 14 Cal.2d 679 [96 P.2d 788], it was noted that "having disposed of the defendant's argument by holding that `criminal negligence' was not necessary under section 500 of the Vehicle Code, it was not necessary for the court to resolve the conflict between the Driggs and Hurley cases, requiring an element of wantonness as contended by defendant, and previous cases holding that deliberate disregard of the safety of others is not necessary to a prosecution for manslaughter; yet the court took the occasion to repudiate
In the other note (25 Cal.L.Rev. 1, 30) is found this statement: "The main question is, therefore, what does `without due caution and circumspection' mean; what degree of culpability is required? The law on this point seems in California to be less settled and less clear than in other jurisdictions." After quoting an instruction identical with the one in the present case except for the words "even though his negligence does not amount to a wanton or reckless disregard of human safety or life" which are not present in our case, the writer notes that "It is not easy to understand the true significance of this rule. Did the supreme court therein formulate the proposition that ordinary (civil) negligence would suffice to constitute manslaughter? Certainly California has widened the concept of criminal negligence necessary to constitute manslaughter further than most of the other jurisdictions. But it does not seem correct to say that the quoted passages from People v. Seiler and People v. Wilson [both automobile-manslaughter cases] are authority for the proposition that the negligence which suffices as the basis for civil liability and the negligence which is the foundation for criminal liability under the manslaughter statute are of the same degree. To be sure the language of the court contains a term which is customarily used in the definition of civil negligence, namely, the following: `precautions which a person of ordinary prudence could have used under the circumstances.' But as a whole the definition differs from that of ordinary negligence, including, as it does, the element of something dangerous in itself or in its use. Furthermore, the court admitted in the quoted passage from People v. Seiler that the lack of due
In the two most recently filed civil liability cases before this court (Jensen v. Minard, ante, p. 325 [282 P.2d 7] and Warner v. Santa Catalina Island Co., ante, p. 310 [282 P.2d 12]) we were concerned with personal injuries occurring because of the negligent handling of dangerous instrumentalities (a gun, and shooting gallery cartridges). We concluded, in both cases, that the standard of care in such cases was so great that a slight deviation therefrom would constitute negligence. In the case at hand, the jury was instructed in part that "When a person is doing anything dangerous in itself or has charge of anything dangerous in its use and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another results therefrom, his act or neglect is a criminal act against the person so killed." It appears that this instruction is the same principle we have so recently applied in civil liability cases.
The statute (Pen. Code, § 192, subd. 2) provides (in part) that in order to convict a person of involuntary manslaughter, there shall be an unlawful killing of a human being in the commission of a lawful act which might produce death without due caution and circumspection. The words lack of "due caution and circumspection" have been heretofore held to be the equivalent of "criminal negligence" (Pen. Code, § 20). The general rule is set forth in 26 American Jurisprudence, Homicide, section 210, page 299, as follows: "The authorities are agreed, in the absence of statutory regulations denouncing certain acts as criminal, that in order to impose criminal liability for a homicide caused by negligence, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences." The article continues thus: "Aside from the facts that a more culpable degree of negligence is required in order to establish
We hold, therefore, that the general rule just quoted, sets forth the standard to be used in California for negligent homicide (Pen. Code, § 192, subd. 2) in other than vehicle cases. Defendant here was charged with a violation of section 192, subdivision 2, of the Penal Code. The jury should have been instructed according to the rule which generally prevails in this country as to what constitutes criminal negligence, or lack of due caution and circumspection so that her guilt or innocence might be determined in accord therewith.
Because of the errors heretofore noted, the judgment is reversed.
Gibson, C.J., Traynor, J., and Schauer, J., concurred.