State v. Davidson

• Citation: 309 P.2d 211,78 Idaho 553
• Decision Date: 12 February 1957
• Docket Number: No. 8394,8394
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. John DAVIDSON, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 211

309 P.2d 211

78 Idaho 553

The STATE of Idaho, Plaintiff-Respondent, v. John DAVIDSON, Defendant-Appellant.

No. 8394.

Supreme Court of Idaho.

Feb. 12, 1957.

Rehearing Denied April 15, 1957.

W. H. Langroise, W. E. Sullivan, Jess B. Hawley, Jr., Boise, for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., Blaine F. Evans, Pros. Atty., Boise, for respondent.

SMITH, Justice.

Respondent, by an amended information, accused appellant of the crime of involuntary manslaughter, committed March 19, 1955, by driving a motor vehicle in an unlawful, reckless, careless and negligent manner, and at an excessive rate of speed, at and into an intersection of certain streets in the City of Boise, into and against one Anna Louise Bunten, who thereby received injuries which resulted in her death, March 20, 1955.

A jury, at the conclusion of a second trial, found appellant guilty of the crime of involuntary manslaughter. The trial court thereupon sentenced appellant to imprisonment in the state prison for a term not to exceed ten years. Appellant perfected an appeal from the judgment of conviction.

Appellant, on several occasions during the progress of the case, moved the trial court to quash and dismiss the amended information. The court in all such instances denied said motion.

Appellant by his first assignment of error contends that the trial court should have granted his motion to quash and dismiss the amended information. He asserts that such information attempted to charge commission of the crime of involuntary manslaughter under the certain provision of I.C., sec. 18-4006, as amended by Idaho Sess.Laws 1949, c. 126, defining involuntary manslaughter as

'the unlawful killing of a human being, without malice. * * * in the operation of a motor vehicle in a reckless, careless or negligent manner which produces death; * * *.' (Amendatory matter emphasized.)

whereas, appellant asserts the repeal of such portion of the involuntary manslaughter statute by Idaho Sess.Laws 1953, c. 273, sec. 53, now designated as I.C., sec. 49-520.1.

I.C., sec. 18-4007, as amended by Idaho Sess.Laws 1949, c. 126, sec. 2, prescribes punishment for the crime of involuntary manslaughter,

'* * * by a fine of not more than $1,000.00, or by imprisonment in the state prison not exceeding ten years, or by both such fine and imprisonment. * * *.'

Idaho Sess.Laws 1953, c. 273, is the Uniform Act Regulating Traffic on Highways; it contains in its title among other matters, the following:

'An Act Regulating Traffic On The Highways And Defining Certain Crimes In The Use And Operations Of Vehicles; * * * Defining Negligent Homicide And Prescribing A Penalty Therefor; * * *.'

Section 53 of said Act, now designated as I.C., sec. 49-520.1, hereinafter called the negligent homicide statute, defines the crime of negligent homicide and prescribes punishment therefor as follows:

'Negligent Homicide.--(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.

'(b) Any person convicted of negligent homicide shall be punished by imprisonment for not more than one year or by fine of not more than $1,000 or by both such fine and imprisonment. * * *.'

Section 192 of said Act reads in part:

'* * * all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.'

The Uniform Act Regulating Traffic on Highways is a comprehensive statute, legislatively intended to cover the whole field and subject matter of the operation of motor vehicles, including definitions of the several offenses growing out of the improper operation of such vehicles, prescribing penalties for those offenses, and repealing by implication all acts and parts of acts inconsistent therewith.

Repeals by implication are not favored; but if inconsistency is found to exist between the earlier and the later enactments, such that the legislature could not have intended the two statutes to be contemporaneously operative, it will be implied that the legislature intended to repeal the earlier by the later enactment. Storseth v. State, 72 Idaho 49, 236 P.2d 1004; State v. Teninty, 70 Idaho 1, 212 P.2d 412; State v. Morf, 80 Ariz. 220, 295 P.2d 842.

It appears, by enactment of the negligent homicide statute, a part of the aforesaid Act, that the legislature intended to and it did legislate anew in the field of homicide resulting from the improper operation of motor vehicles; also that by such legislation, the legislature intended to remove from the purview of the earlier involuntary manslaughter statute, such classification of homicide, and to place it within the purview of the later negligent homicide statute. It further appears that the legislature thereupon repealed the manslaughter statute, insofar as it included within its purview homicide resulting from the improper operation of motor vehicles, and that immediately thereupon, it enacted the negligent homicide statute and included thereunder the subject matter of homicide so resulting, with redefinition of the penalty therefor.

A statute providing for the repeal of all inconsistent laws is effective to accomplish such repeal. The rule is stated in 82 C.J.S., Statutes, § 285, p. 476, as follows:

'It is a common practice for the legislature, in enacting a statute, to insert a clause that all laws and parts of laws in conflict, or all acts and parts of acts inconsistent, with the statute are repealed; and such a provision indicates a legislative intent and undertaking to repeal some statutory provision * * *. In the absence of a constitutional prohibition of this method of repeal, such a clause is effective to repeal all prior general laws, or parts thereof, which are repugnant to, and inconsistent and irreconcilable with, the repealing statute, * * *.'

Idaho's constitution does not appear to prohibit such method of repeal.

There appears to be no fundamental difference between the manslaughter statute and the negligent homicide statute in the definition of the so-called negligent homicide as latterly defined.

A portion of the 1949 amendment of the involuntary manslaughter statute, I.C., sec. 18-4006, under consideration here, defines the homicide as the unlawful killing of a human being without malice, in the operation of a motor vehicle in a reckless, careless, or negligent manner which produces death. The negligent homicide statute, I.C., sec. 49-520.1 defines the homicide therein referred to as the death of any person as a proximate result of an injury received by the driving of any vehicle in reckless disregard of the safety of others. In both instances the death must occur within one year, excluding the first day on which the act was done, I.C., sec. 73-109, being equivalent to a year and a day, when the day on which the act was done is included, I.C., sec. 18-4008.

Briefly stated, under the 1949 amendment to the manslaughter statute the homicide must result from the operation of a motor vehicle in a reckless, careless or negligent manner; and under the negligent homicide statute, the homicide must result from the operation of the motor vehicle in reckless disregard of the safety of others.

Fundamentally, while the two definitions differ in phraseology, they differ but little if any in meaning. Both statutes define the homicide resulting from operation of a motor vehicle in a reckless manner or in reckless disregard; and in the title of the Uniform Act Regulating Traffic on Highways, of which the negligent homicide statute is a part, the legislature indicated its intention to enact a statute defining negligent homicide and prescribing a penalty therefor; also the act itself prescribes that the person who commits the homicide as therein provided, shall be guilty of negligent homicide.

The legislature thereby indicated its intention to include the homicide, resulting from the negligent operation of a motor vehicle, as an offense included within the purview of, and of equal grade as, the homicide resulting from the operation of the motor vehicle in reckless disregard of the safety of others. For any such negligence must measure up to the statutory definition of criminal negligence and meet the definitive test of reckless disregard of consequences.

I.C., sec. 18-114 reads:

'In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal neligence.'

In State v. McMahan, 57 Idaho 240, 65 P.2d 156, 162, this section of the statute is construed with particular reference to the word 'negligence'; therein this Court stated:

'In order to properly construe that section, [now I.C., sec. 18-114] full force and effect must be given to the qualifying word 'criminal,' used in connection with the word 'negligence.'

'The term 'criminal negligence,' as used in that section, does not mean merely the failure to exercise ordinary care, or that degree of care which an ordinarily prudent person would exercise under like circumstances. It means gross negligence. It is such negligence as amounts to a reckless disregard of consequences and of the rights of others.'

See also State v. Taylor, 59 Idaho 724, 87 P.2d 454; State v. Patterson, 60 Idaho 67, 88 P.2d 493; State v. Hintz, 61 Idaho 411, 102 P.2d 639; 65 C.J.S., Negligence, § 306, p. 1270.

There is however, a definite conflict between the involuntary manslaughter and the negligent homicide statute as to the punishment imposed.

The involuntary manslaughter statute imposes a sentence of imprisonment not exceeding ten years in the state prison. The negligent homicide statute imposes a sentence of imprisonment not exceeding one year, without designating the state prison or the county jail. The conflict between the two statutes cannot be reconciled; being so, the negligent homicide statute must govern since it is...