Criminal Law - Involuntary Manslaughter - Unlawful Act as Basis for Conviction
![handle is hein.journals/montlr18 and id is 224 raw text is: MONTANA LAW REVIEW
the re-examination of the requisites of due process [as found in Interna-
tional Shoe Company v. Washington].'
Case law in Montana is still at the stage prior to the International
Shoe case.' If the rather orthodox decision in LeVecke v. Griesedieck West-
ern Brewing Company is used as persuasive authority in the Montana
courts, adoption of the progressive and preferable minimum contacts test
will be unfortunately postponed.
WARD A. SHANAHAN
CRIMINAL LAW-INVOLUNTARY MANSLAUGHTER-UNLAWFUL ACT As BASIS
FOR CONVICTION.-Appeliant, while driving on the wrong side of the high-
way, collided with an oncoming gasoline truck and caused the death of the
driver. She was convicted of involuntary manslaughter based upon both
criminal negligence in driving while under the influence of intoxicating
liquor and upon the unlawful act of driving to the left of the center line.1
On appeal to the Montana Supreme Court, held, reversed and remanded for
a new trial. An instruction authorizing a manslaughter conviction for the
unlawful act of driving on the wrong side of the road is erroneous because
criminal negligence is an essential element of the crime of involuntary man-
slaughter. State v. Strobel, 304 P.2d 606 (Mont. 1956) (Chief Justice Adair
and Justice Bottomley dissenting).
Bracton's thirteenth century writings stated that criminal liability at-
tached for homicide committed by misadventure in the course of an un-
lawful act.' Coke recognized that homicide in the course of an unlawful
act was necessarily either voluntary or involuntary, but stated both were
punishable alike as murder.' Hale subsequently recognized a definite dis-
tinction between voluntary and involuntary manslaughter, and in his time
DPerkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952) ; Traveler's Health
Ass'n v. Virginia, 339 U.S. 643 (1950).
2ontana case law is also limited to a few decisions on the subject. The theories of
implied consent and constructive presence appear in the companion cases State
em rel. Am. Laundry Machinery Co. v. District Court, 98 Mont. 278, 41 P.2d 26
(1934), cert. denied, 295 U.S. 744 (1935), and State eo rel. Taylor Laundry Co. v.
District Court, 102 Mont. 274, 75 P.2d 772 (1936). In the first case summons was
quashed where it appeared that the corporation's dealings were limited to several
isolated transactions. The corporation also was not shown to have appointed an
agent for the purpose of service of process. The second case was tried on findings
of new facts that the corporation had actually been engaged in continuous activity.
The sale of goods, replacement of worn out parts, and adjustments and repairs to
machinery enabled the court to infer that it was present. By the time of the
second suit the corporation had a regular agent upon whom process could be served
in accord with R.C.M. 1921, § 9111(2).
The most recent Montana decision is State ex rel. Schmidt v. District Court, 111
Mont. 16, 105 P.2d 611 (1940). The corporation involved there had previously com-
plied with the statutory requirement for appointment of an agent upon whom pro-
cess could be served but failed to appoint a replacement when the original man died.
This case adhered to the theory of implied consent and certainly did, not require
a broad rule in view of the corporation's long business contact with the state.
The most recent decision involving a Montana party and a foreign corporation is
Clapper Motor Co. v. Robinson Motor Co., 119 F. Supp. 79 (D. Mont. 1954). The
court there relied on the older theory of constructive presence.
1Rzvrsm) CoDzs OF MONTANA, 1947, §§ 31-108 (19), 32-1102, and 32-1104, statutes then
in force.
2BRA ToN, DE Lumrus, 120b, 136b (1569) (written 1250's).
COKE, 3d INSTITUTE No. 56 (1641).
[Vol. 18,](ViewImageLocal?handle=hein.journals/montlr18&div=32&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Criminal Law - Involuntary Manslaughter - Unlawful Act as Basis for Conviction
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most