The commercial. (Union City, Tenn.) 190?-193?, 1915-10-22
Knoxville, September Term, 1915.
Max Lauterbach VS.. The State.
OPINION.

Plaintiff in error was indicted in
the Criminal Court of Hamilton
County for "unlawfully, feloniously
and recklessly' driving an automo-
bile upon John d. White, and there
by causing his death. "At the time"
continues the indictment, "said Max
Lauterbach was driving said auto
mobile along st. Elmo avenue, a pub
lie thoroughfare, at rate of speed
in excess of twenty miles an hour,
and in disregard of the presence of
said John d. White. Whereby the
grand jurors present that the said
Max Lauterbach has committed in
voluntary manslaughter, etc." He
was convicted and sentenced to an
indeterminate period of from one to
five years in the State penitentiary.
He has appealed to this Court and
has assigned errors.
The weight of the evidence shows
that, on the occasion referred to, the
plaintiff in error was driving his au-
tomobile at the rate of from twenty
five to forty miles an hour, as esti-
mated by the various witnesses who
testified The weight of the evidence
further shows that John D. White, a
child six years old, was walking with
his sister on the west side of the
avenue, within the travelled way,
there being no sidewalk at that
point. His sister held him by the
hand, but he suddenly jerked away
just as the automobile was approach
ing, ran in front Of it, and was
killed.
Our Act of 1905, Chapter 173,
provides THAT no automobile shall
be run or driven upon any road,
street, highway or other public
thoroughfare at a rate of speed in
excess of twenty miles per hour
Section of the same Act makes the
violation of any of the provisions
thereof, a misdemeanor punishable
by fine of not less than $500, nor
more than $4,000. St. Elmo ave-
nue. is much travelled street, in the
town Of St. Elmo, in Hamilton
County.
1t is insisted for plaintiff in error
that, under the facts stated his con-
viction was erroneous. We do not
think so. His violation of the
statute by running in excess of the
speed limit there prescribed was ;
negligence. One who kills another '
in the act of committing such negli- {
gence is guilty of felonious homicide. S
State VS.. Campbell, 80 Conn. GIL;
Is Am. Cas-, 236; State VS.. Goetz, I
S9S Neb. "a. 1870 N. W. 972; "a Ann.
Cas-, 495, So L. R. A. IN. So 403. II
And the rule is general at common I
law that one who kills another s
while committing an act of negli- i
gence is guilty in like manner. See c
note to case of Johnson vs.
State, 81 L. r. A. 277 ct seq. \
The plaintiff in error is not re- o
lieved by the fact that the child ran 9
in front of the machine. .
One who is engaged in the perform A
ance of any unlawful act must take
the criminal consequences of what
ever happens to the third persons as
a result of that act. 1t was his duty
TO anticipate that he might encount-
or not only grown persons, but even
little children; or even people who
we're affected with blindness or deaf
less. One who disobeys the statu-
oryN rules as to speed is acting in
defiance of law and must be held to
lave anticipated the possibility of
my injury caused by his reckless
irving. s.
The little child was too young to =
,e guilty of contributory negligence; /
tut even If it had been person who 81
lad arrived at years of discretion, y
md he had committed any act SINH :"
ar to that of the child, the plaintiff
n error would not have been free of r
rlm1nal laDlllty; since the rule or Il
ontributory negligence does not ap- al
'ly to criminal cases. State VS.. a. Z
supra, Reg. VS.. Longbot-
ON, 3 Cox C. C. (eng,) 439, Reg. =,
s. Kew. IL Cox C. C. (Eng.') 335, n;
tate VS.. Moore, 129 Iowa, 514, and til
Their cases in note to Schultz VS.. as
tate, "a Ann. Cases, 1912, c. $40 81 81
t seq.
An instruction was offered, in the ~
rial Court, to the effect that if the tr,
ury should find that the death of Al
he child twas caused by his sud
emily breaking loose from his sister A.
nd running into the automobile, II