Bartlett v. State

¶1concurring specially.

¶2I can and do concur only in the result reached in this case because it is consistent with my analysis. I am sympathetic with the dissent because it points up the quandary into which the majority is leading us.

¶3As can be seen in the majority opinion and the dissenting opinion, down through the years, there has been and still is a continuing struggle by this court to ascertain the intent of the legislature in the enactment of the negligent homicide statute, § 31-232, W.S.1957, C.1967, as far as the manslaughter statute, § 6-58, W.S.1957, is concerned.

¶4I think the court has become so involved in technical distinctions with respect to the question at hand, that our rulings have become a thicket of misty confusion. The effort to distinguish one case from the other to reach some just, as well as reasonable result, has developed into a real puzzle as to what we might do next under a given state of facts.

¶5Stated simply, it seems to me that the legislature in its failure to speak clearly in enacting § 31-232 as part of the Uniform Act Regulating Traffic on Highways, § 31-77, et seq., W.S.1957, C.1967, intended that all driving violations, resulting in the death of another, should be considered exclusively for prosecution under § 31-232; the element of reckless disregard for the safety of others, of course, must necessarily be present. The vehicular homicide statute, as the most recent expression of the legislature, I reluctantly must construe as repeal by implication of any part of the manslaughter statute, in conflict; there is no other course.

¶6That conclusion is bolstered by § 31-125, providing that:

“Any person who drives any vehicle in willful and wanton disregard for the safety of persons or property is guilty of reckless driving.”

¶7That section applies in the absence of death as a result but its companion, § 31-232, in identical language except word arrangement, applies when a death is the product of such driving. With such a standard interpretation, everyone, the public, law enforcement, the bench and bar should know where it stood. I would, naturally, exclude the intentional use of a motor vehicle to commit murder in any degree. No one would then have to go through some tenuous line of reasoning to determine what is malum prohibitum, what is malum in se or try to decide what Supreme Court case, drawing some slender line, applied to move negligent homicide to manslaughter or vice versa.

¶8I realize that my view may place drunken driving, resulting in death, within the category of negligent homicide. That would be personally abhorrent to me because I believe it deserves to fall within the classifica*1244tion of a felony but neither I, nor can any segment of the judiciary, legislate. Drunken driving is part of state traffic legislation. Section 31-129, W.S.1957, C.1967, 1975 Cum.Supp. If the legislature wished it to be a felony, it is a matter for legislative determination, not judicial. I agree with the dissent that the majority is creating an inconsistency in that regard.

¶9A careful reading of the full majority opinion by Justice Riner in State v. Cantrell, 1946, 64 Wyo. 132, 186 P.2d 539, indicates the court was also considering the application of a third statute, since repealed,1covering death resulting from the operation of a motor vehicle, worded in part as follows:

“(… Section 60-138, W.C.S.1945) … ‘if any person operating a motor vehicle in violation of the provisions of this article shall, by reason thereof, seriously maim, injure or disfigure or cause the death of any person or persons, such person shall be deemed guilty of a felony, and upon conviction shall be imprisoned in the penitentiary for not less than one year nor more than fourteen (14) years.’ ”

¶10The court was then faced with the availability of that statute, which would permit a felony conviction for death caused by vehicle operation, exclusive of the manslaughter statute. I do not believe, as the majority does, we can categorically say at this time what we will do when confronted with a manslaughter charge in a drunken driving case, in the absence of that third statute. There is no longer hovering in the background the influence of § 60-138, W.C.S. 1945, which gave the prosecutor an equally serious choice to turn to if manslaughter would not lie.

¶11It appears to me that it is time that the legislature act as suggested by Justice Blume in his special concurring opinion in State v. Cantrell, supra, commented upon in Thomas v. State, Wyo.1977, 562 P.2d 1287, and mentioned before in State v. Wilson, 1956, 76 Wyo. 297, 301 P.2d 1056,2 Justice Blume likewise had the same hesitancy that I entertain and the legislature should “fix a more recognizable rule of guidance for the courts.” 64 Wyo. at 157, 186 P.2d at 548. Death on the highways is so frequent, so serious and so final to the victim that the situation commands legislative action.

¶12I have no disagreement with the majority in its handling of “OTHER ASSERTED ERRORS.”

¶15dissenting.

¶16In State v. Cantrell, 64 Wyo. 132, 186 P.2d 539 (1947), this Court posed one issue, at 64 Wyo. 144, 186 P.2d 542, as follows:

“The query arises then — Was the entire manslaughter statute, Section 32-205, W.R.S.1931, Section 9-205, W.C.S.1945, supra, repealed by Section 24, Chapter 126, Laws of Wyoming 1939, Section 60-413, W.C.S.1945 [the negligent homicide statute], as asserted by appellant? … ”

¶17This issue was resolved by the Court at 64 Wyo. 145, 186 P.2d 543:

“With the above rules in mind it is plain that Section 24, Chapter 126, Laws of Wyoming 1939 did not repeal in toto Section 32-205, W.R.S.1931, supra. Section 24 aforesaid fails to deal with not only the inhibition of the statute concerning voluntary manslaughter but also the ban of the law upon involuntary manslaughter ‘in the commission of some unlawful act’. It is not repugnant to either of these provisions.” [Emphasis added.]

¶18In justifying this holding the Court cited and relied upon People v. Mitchell, 27 Cal.2d 678, 166 P.2d 10 (1946), a case in which the unlawful act was speeding.

¶19Within the past six months this Court stated:

“Earlier, in Cantrell, supra, it was clearly decided that an implied repeal of the manslaughter statute was not effected insofar as the commission of an unlawful act was concerned, … Thom*1245as v. State, Wyo., 562 P.2d 1287, 1289 (1977).

¶20The majority opinion poses the primary issue in the instant case as follows:

“Although there are other issues, the primary question presented in this appeal is whether the ‘unlawful act’ portion of § 6-58, W.S.1957, dealing with the crime of involuntary manslaughter, was repealed by implication with the enactment of § 31-232(a), W.S.1957, C.1967, which deals with the crime of vehicular homicide.” [Footnotes omitted.]

¶21This question is answered in the affirmative by the majority opinion, and an attempt is made to factually distinguish the Cantrell case. State v. Cantrell, supra, is an unlawful act case not simply a driving while under the influence of intoxicating liquor case. While Cantrell did involve different facts, the rule of law is not distinguishable, and it follows that what was said in Cantrell and reaffirmed in Thomas and what is said here are inconsistent. If we are to overrule Cantrell, candor demands that we so state.

¶22I am satisfied that Cantrell represents the correct rule. It is generally assumed that Wyoming adopted its criminal code from Indiana. In § 1908, Indiana Revised Statutes, 1881, which were extant at the time that § 6-58 first was adopted as Chapter 73, § 17, S.L. of Wyoming, 1890, it was provided:

“Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and upon conviction thereof, shall be imprisoned in the State prison not more than twenty-one years nor less than two years.”

¶23The statute adopted by Wyoming reads as follows, with the differences indicated by italics:

“Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years.” § 6-58, W.S.

¶24Prior to the time that Wyoming adopted this statute is had been construed in Indiana to the end that there were two ways of committing involuntary manslaughter in Indiana. In State v. Dorsey, 118 Ind. 167, 20 N.E. 777, 10 Am.St.R. 111 (1889), the Supreme Court of Indiana stated:

“ … ‘Involuntary manslaughter is where a man doing an unlawful act, not amounting to a felony, by accident kills another, or where one kills another while doing a lawful act in an unlawful manner.’ Com. v. Kuhn, supra [1 Pittsb. R. 13]. See Moore, Crim.Law, § 863. See Reg v. Skeet, 4 Fost. & F. 931.”

¶25See Napier v. State, 255 Ind. 638, 266 N.E.2d 199 (1971); Kraft v. State, 202 Ind. 44, 171 N.E. 1 (1930); Howell v. State, 200 Ind. 345, 163 N.E. 492 (1928); Dunville v. State, 188 Ind. 373, 123 N.E. 689 (1919).

¶26The proper construction of the Wyoming statute relating to involuntary manslaughter is that the Wyoming legislature codified the alternative method of committing the offense which was by case law engrafted upon it in Indiana, that is, the commission of a lawful act in an unlawful manner. This is what is connoted by the words in the Wyoming statute, “or by any culpable neglect or criminal carelessness.” In Thomas v. State, supra, this Court held insofar as that portion of the involuntary manslaughter statute was concerned it had been repealed by implication in the adoption of the negligent homicide statute, § 31-230(a), W.S. I would, however, continue to follow State v. Cantrell, supra, to the end that when the circumstances manifest accidental killing by one involved in the commission of an unlawful act, not amounting to a felony, and the unlawful act is the proximate cause of the death the offense committed is involuntary manslaughter. While this may seem a harsh result, human life is generally regarded as worthy of extraordinary protective measures. It is the prerogative of the legislature to determine the consequences *1246which may attach to an unlawful act that takes a life, and it can, if it chooses to; make those consequences more severe than those that attach to taking a life by recklessness or negligence.

¶27The majority opinion refers to cases which are in point and which, at least in one instance, our Court already has followed. People v. Mitchell, supra, was relied upon extensively in State v. Cantrell, supra.State v. McIver, 175 N.C. 761, 94 S.E. 682 (1917), is cited in People v. Mitchell, supra, and reaches the same result. Other similar cases are State v. Deane, 75 Idaho 149, 268 P.2d 1114 (1954); State v. Salhus, 68 Idaho 75, 189 P.2d 372 (1948); and Schluter v. State, 153 Neb. 317, 44 N.W.2d 588 (1950). Without considering some of these cases, and ignoring the commitment to the rule expressed in People v. Mitchell, supra, by this Court in State v. Cantrell, supra, the majority opinion assumes that in Wyoming in the instance of a charge of involuntary manslaughter in which the unlawful act relied upon is a speeding violation, a showing that the act was done in a criminally negligent manner is required. The Court further assumes that even though, under that theory, the elements of the offense require a showing of an unlawful act committed in a criminally negligent manner that additional element is without significance, and the crime is substantially indistinguishable from negligent homicide. This is a peculiarly strained result in the light of Cantrell v. State, supra, which leads to a conclusion that Wyoming law does not require that the unlawful act be committed in a criminally negligent manner.

¶28In the instant case I would agree that the judgment should be reversed and the case sent back to the district court for retrial. I would permit the submission of the involuntary manslaughter violation to the jury, but would also require the included offense of negligent homicide be submitted to the jury assuming that the defendant presented a theory which would be consistent with that offense. I suggest, for example, that in this instance the jury might determine the speeding violation was not the proximate cause of the decedent’s death, but that instead the proximate cause was the reckless operation of the vehicle in handling it so that it struck the median while being driven at a high rate of speed. This latter conduct could constitute the doing of a lawful act in an unlawful manner and conceivably could be found to be a violation of the negligent homicide statute while the circumstances might be found not to violate the involuntary manslaughter statute.

¶29As I interpret the statute the evidence of speeding at a remote place would not be relevant. My construction of the involuntary manslaughter statute would not require that any particular state of mind be manifested in order for a person charged with that offense to be found guilty.