Rex v. Russell

Nature of the Case

This was an appeal of a manslaughter conviction.

Facts

Russell (D) stood by passively while his wife and two children drowned. The jury asked for an instruction on criminal liability if they should find that Russell neither encouraged nor participated in the deaths of his family. Russell was convicted of manslaughter. Russell appealed, asserting that his liability should be limited to his failure to protect his children.

Issue

Is a failure to prevent a criminal act by another a criminal offense in itself?

Holding and Rule of Law

Yes. Failure to prevent a criminal act of another where there is a legal duty to do so is a criminal offense in itself.

Russell’s deliberate abstention from doing his legal duty plus the tacit approval he gave to his wife made him an aider and abettor to the crime and a principal in the second degree. The original instruction to the jury was misleading because it only instructed on independent liability possibilities. However, there was no misdirection of the jury, and there is no reason to overturn its verdict. Russell had a legal duty to protect both his wife and children. This duty extends to the prevention of the acts of another that would harm his wife and children.

Disposition

Affirmed.

Notes

Normally a party is not liable for preventing criminal acts. However, if there is a duty to act then a party will be liable for a failure to prevent a criminal act that could harm those subject to that duty of care. A failure to act will not result in criminal liability if the acts would be in vain.