Assault and Battery by the Reckless Motorist
![handle is hein.journals/jclc31 and id is 143 raw text is: ASSAULT AND BATTERY BY THE RECKLESS MOTORIST
Livingston Hall*
The tendency to use negligence or
recklessness in the criminal law as a
basis for conviction, in place of the re-
quirement in the early law of inten-
tional wrongdoing, has been a charac-
teristic of the law for centuries. Per-
haps the most striking feature in this
development in recent times has been
the efflorescence of the concept of reck-
lessness as a basis of conviction for
assault and battery, without proof of
a clear-cut intent to inflict injury,
where bodily injury less than death has
resulted from the defendant's act or
omission. The Age of Invention has
come, developing devices of a deadli-
ness formerly unknown and requiring
for their safe handling a high degree
of care, and a considerable number of
such convictions appear in the books
and on the court records.
As in the field of torts, it is the auto-
mobile which now accounts for most
of these recklessness cases. It was sug-
gested by the late Professor Tulin a
dozen years ago that the concept of
assault by the reckless use of an auto-
* Professor of Law, Harvard University. For
assistance in preparing this article, the Wvriter is
indebted to Selig J. Seligman, a third year stu-
dent at the Harvard Law School.
1 Tuin, The Role of Penalties in Criminal Law,
(1928) 37 Yale L. J. 1048, hereafter cited as
Tulin It is not clear whether or not this theory
is adopted in the note in (1939) 16 N. Y. U. I. Q.
Rev. 290 at 294, on the influence of the doctrine
of criminal intent on criminal legislation affect-
ing motor vehicles.
2 Judicial legislation through spurious inter-
mobile was developed by resourceful
courts as a means of securing a suitable
penalty to be imposed upon the reck-
less driver who has caused personal
injury, not resulting in death, where
the penalties for the statutory offense
of reckless driving were inadequate.1
If this were true, and if although legis-
latures meant to impose a low penalty,
courts arbitrarily expanded another
crime to reach a different result, it
would indeed be unfortunate judicial
legislation.2
This proposition raises important
questions in the development of the
criminal law, and seems to warrant a
careful re-examination of the auiomo-
bile assault cases, and an investigation
of the earlier cases dealing with reck-
lessness as a basis for liability for as-
sault and battery.
The results of this investigation do
not wholly bear out Professor Tulin's
thesis. It appears that the concept of a
reckless battery was fully developed
in the United States before the first
automobile cases were decided, and
pretation of statutes has been condemned in the
strongest terms. Landis, A Note on Statutory
Interpretation, (1930) 43 Harv. L. Rev. 886.
Quite as improper is the unwarranted extension
of criminal liability through the development of
new common law crimes. See notes in (1933)
49 L. Q. Rev. 183 and (1934) 5 Camb. L. J. 263,
criticizing the decision in Rex v. Manley, (1933)
1 K. B. 529, which created the offence of public
mischief tc convict a woman for falsely stating
to the police that she had been robbed, and caus-
ing them to waste time investigating the false
charge.
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Assault and Battery by the Reckless Motorist
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