Citation

Hall L.. J. Crim. Law. Criminol. (1931) 1940; 31(2): 133-158.

Copyright

(Copyright © 1940, American Institute of Criminal Law and Criminology, Publisher Northwestern University Press)

DOI

unavailable

PMID

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Abstract

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 automobile" 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.