# Harless v. State > Court of Criminal Appeals of Oklahoma · August 12, 1988 · 759 P.2d 225 URL: https://www.frixlaw.com/law-library/cases/9564961 ## Case - **Full name:** Donna Raye HARLESS, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** August 12, 1988 - **Citations:** 759 P.2d 225; 1988 OK CR 155; 1988 Okla. Crim. App. LEXIS 157; 1988 WL 84539 - **Precedential status:** Published - **Opinion:** Dissent by Brett - **Judges:** Bussey, Parks, Brett - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9564961 ## Opinion text BRETT, Presiding Judge, dissenting: I agree with my colleague Judge Parks that the definition of “culpable negligence” is unsatisfactory. However, while it may be within the province of the Legislature to define the terms we use, this Court cannot abdicate its responsibility to strike down those terms when they violate provisions of the United States and Oklahoma constitutions. This writer believes such is the case here. “Negligent” is defined in the criminal statutes: The terms “neglect,” “negligence,” “negligent” and “negligently,” when so employed, import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. 21 O.S.1981, § 93. This Court had occasion to interpret this statute over six decades ago. In Nail v. State, 33 Okla.Crim. 100 , 242 P. 270 (1926), the Court said that the difference between simple negligence and criminal negligence depends on whether the subject matter demands reparation to *229 the individual or to the state. The Court then observed: Criminal negligence then is negligence in such circumstances that it imposes an obligation remissible by the state, but irremissible by the individual actually damnified by it; and since the state will not lightly intervene, criminal negligence must be some “substantial thing” and not a mere causal inadvertance. Between criminal negligence, however, and actionable negligence, there is no principle of discrimination, but a question of degree only. Nail, 242 P. at 272 (emphasis added). The Court added that there must be negligence “rising to the degree of criminal or culpable negligence.” Id. at 272-73. To aid in that determination, a test was enunciated: “Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of the deceased? If so, it establishes a case of criminal negligence.” Id. at 273 (emphasis added). See also Wilson v. State, 70 Okla.Crim. 262 , 105 P.2d 789, 791 (1940). That “culpable negligence” was something more than civil negligence was reaffirmed in Freeman v. State, 69 Okla. Crim. 164 , 101 P.2d 653, 663 (1940), where “culpable negligence” meant a “disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, may be given.” New York, whose statutory definition of “negligence” was virtually identical to our own, wrestled with this problem six decades ago. “Culpable,” the court said, is something more than a mere epithet; it suggests or indicates some such meaning as criminal, and its use was intended to mark a distinction of some sort between the negligence which is merely a tort, paid for by money damages, and the negligence which is a crime, an offense against society, which must be paid by penal punishment. The same negligent act may be both a tort and a crime, but there may be negligent acts that are torts, and not crimes. People v. Angelo, 219 App.Div. 646 , 221 N.Y.S. 47 (1927). The Angelo Court noted, as did the Freeman Court 13 years later, that there could be no precise definition of culpable negligence. The existence of the criminal element in each case is a matter for the jury, in view of all the facts. Id. In light of this, this writer would hold that the trial court in this case should add that “culpable negligence must be something more than [simple negligence], consisting of aggravated facts and circumstances which, in the opinion of the jury, demand criminal punishment rather than mere civil liability,” Id. It must “involv[e] fault for which the state may demand punishment.” Brown v. Shyne, 242 N.Y. 176 , 151 N.E. 197, 199 (1926). See also State v. Custer, 129 Kan. 381 , 282 P. 1071 (1929); State v. Adams, 359 Mo. 845 , 224 S.W.2d 54 (1949). Here, the trial judge determined that an instruction for Second Degree Manslaughter should be given. Appellant’s counsel offered the following definition: YOU ARE FURTHER INSTRUCTED that “culpable negligence” is more than simple negligence, it is the failure to perform an act when the facts and circumstances justify certain action. It is negligence that evinces a callous disregard for the life of the victim. The trial court refused, giving the standard uniform jury instruction: that the term “refers to the omission to do something which a reasonably careful person would do, or the lack of the usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances.” OUJI-CR 643. By way of contrast, the Oklahoma Uniform Jury Instructions (Civil) 9.2, defines negligence as follows: “Negligence” is the failure to exercise ordinary care to avoid injury to another’s person or property. “Ordinary care” is the care which a reasonable careful person would act under those circumstances.... Thus, under the facts in evidence in this case, if a party failed to do something which a reasonable careful person *230 would do, or did something which a reasonable careful person would not do, such party would be negligent. The similarity between the civil and criminal definitions is striking. Therein lies the problem. From this charge, I believe that the jury might well have obtained the impression that ordinary negligence met the test as to criminal culpability. I consider that to be impermissibly vague and a violation of due process under both the Fifth Amendment to the United States Constitution and Article II, § 7 of the Oklahoma Constitution. The facts of this case illustrate why. There is little doubt that appellant owed a high duty of care to her infant. Likewise, there is little doubt that she exercised poor judgment in carrying out that duty. However, the facts indicate that her decision not to seek medical attention for second degree burns which were not a contributing cause of death was based on her financial situation and a belief that the injuries could be treated safely at home. She also indicated her belief that the child was recovering from a viral illness. Such conduct may or may not rise to the level of culpability, but that is not the point; under the instruction given, the jury could not make the determination whether the negligence was culpable or not. The cases cited above and the facts of this case make it clear that there should be a higher standard than that set forth in the OUJI or defined in the statutes. To that extent, appellant was correct in requesting a different instruction. However, I think that the requested instruction’s last sentence, — “[i]t is negligence that evinces a callous disregard for the life of the victim” —brings the standard almost up to the level of recklessness. That would be too high a standard. Because the definition of culpable negligence is too vague as applied in this case, and is too close to civil negligence in any case, this writer would recommend to the legislature the better definition available for negligence, that set forth in the Model Penal Code: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Model Penal Code § 2.02(2)(d). To do more than recommend this definition to the legislature would be to infringe upon their duties, as this represents a sizeable deviation from the statutory definition that this Court has interpreted over the years. Therefore, I would not use it here, but would reverse and instruct the trial court to use the language set forth in the Angelo and Brown cases. Accordingly, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564961. Public record. Not legal advice.