Bartlett v. State

Decision Date12 September 1977
Docket NumberNo. 4655,4655
Citation569 P.2d 1235
PartiesMichael Lawrence BARTLETT, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
CourtWyoming Supreme Court

W. A. Smith, Public Defender, and Robert B. Denhardt, Asst. Public Defender, Fremont County, Lander, for appellant.

V. Frank Mendicino, Atty. Gen., and Gerald A. Stack, Deputy Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

Although there are other issues, the primary question presented in this appeal is whether the "unlawful act" portion of § 6-58, W.S.1957 1, dealing with the crime of involuntary manslaughter, was repealed by implication with the enactment of We will reverse the judgment of the trial court and remand for a new trial.

§ 31-232(a), W.S.1957, C.1967 2, which deals with the crime of vehicular homicide. More particularly, we are asked to consider this question in the context of a case wherein the defendant was tried, convicted and sentenced on the basis of a charge of involuntary manslaughter arising from the alleged operation of a motor vehicle in excess of the posted speed limit.

On May 5, 1975, at about 4 p. m., the defendant, Michael Lawrence Bartlett, borrowed his parents' car, picked up James Viapando, and went riding around the town of Riverton, Wyoming. At about 9 p. m., they picked up Joe Marty, Jr., and Ron Chopping and drove north out of town toward Shoshoni. On their return trip to Riverton, Mr. Viapando saw the car speedometer which indicated a speed of about 100 miles per hour. Mr. Viapando told the defendant to "mellow out." There is no indication in the record that the defendant did or did not respond to this request. At approximately 9:30 p. m., the defendant's vehicle was seen heading west on West Main Street, again out of Riverton. Another motorist, Raymond Apodaca, testified that he noticed that the defendant's vehicle was "coming quite fast as compared to other cars," and that he heard the car's motor "wrapping up." Mr. Apodaca, who was heading east on West Main Street, did not notice any other cars in the general area. The defendant's vehicle was also observed, at about the same time, by Fremont County Deputy Sheriff Larry David, who testified that the Bartlett vehicle was traveling at a speed faster than the normal rate but he could not estimate the actual speed. Deputy Sheriff David made a U-turn and pursued the defendant's vehicle, reaching a speed of 55 miles per hour at one time. The Deputy Sheriff also testified that the speed of 55 miles per hour would be safe on this street, were it not for other cars.

Near the eventual accident location, the defendant punched the car accelerator down and passed a pickup truck which was in the right-hand lane. At this point on the street there were two west-bound traffic lanes. Defendant's vehicle hit a median strip and then jerked back across the path of the pickup, coming to rest against a tree in the yard of a residence a distance of some 490 feet from the initial point of impact with the median strip. The defendant admitted, in a statement introduced at trial, that he was going about 50 miles per hour at the time of the accident. The accident occurred on a curve which was just prior to the merging of the two west-bound lanes. The posted speed limit in this area was 35 miles per hour. Joe Marty, Jr., and Ron Chopping died as a result of the accident.

STATUTORY CONSTRUCTION

We recently discussed and held that the part of § 6-58, supra, which states, "or by any culpable neglect or criminal carelessness" was impliedly repealed by § 31-232(a), supra. Thomas v. State, Wyo., 562 P.2d 1287, 1291. We noted in Thomas the troublesome nature of this area and it would serve no purpose to set out those observations again. Suffice it to say that this court, in an attempt to clarify the relationship between § 6-58, supra, and § 31-232(a), supra, has been forced to travel a circuitous route. We now must return to a problem similar to, but significantly different from, that which was raised in State v. Cantrell, 64 Wyo. 132, 186 P.2d 539. In that case the "primary and sole issue" was whether the defendant was under the influence of intoxicating liquor when he had a motor vehicular collision with another motorist, who died as a result of the accident. In this context, and under certain principles which will be later discussed, we stated:

" . . . (I)t is plain that Section 24, Chapter 126, Laws of Wyoming 1939 did At first blush this statement would seem to end our inquiry into the matter. We find, however, that State v. Cantrell, supra, is distinguishable from the instant case. The unlawful act relied on in Cantrell was the crime of driving while under the influence of intoxicating liquor; while here the case is based on an allegation that the defendant was driving in excess of the posted speed limit. With respect to the underlying offense in Cantrell, we made the following observation:

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. See also Phillips v. State, 204 Ark. 205, 161 S.W.2d 747." State v. Cantrell, supra, at 543.

"The most elaborate review of the subject of Negligent Homicide as applicable to motor vehicle codes which has come under our notice is included in an article by Stefan A. Riesenfeld in 25 Cal.Law Rev. pp. 1-40. There the author discussing the operation of the Negligent Homicide law in the State of Michigan, which was the first jurisdiction to establish the crime of negligent homicide committed in the operation of a vehicle, points out that: 'There was at common law and there is apparently in Michigan another group of cases, constituting manslaughter, where the issue of negligence is not involved at all, namely, homicide in the commission of an unlawful act (malum in se) not amounting to felony. The typical example is driving while under the influence of liquor. This is a crime in all jurisdictions; in Michigan it is a misdemeanor. Hence if death results the driver is guilty of manslaughter. The Michigan court in the famous case of People v. Townsend, (People v. Townsend (1921) 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902) which is the leading case in this field, succinctly pointed out that driving while intoxicated is an unlawful act (malum in se) and that if death results the driver is guilty of manslaughter.' " (Emphasis supplied) State v. Cantrell, supra, at 545.

See also State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 220-222. The clear import of our decision in State v. Cantrell, supra, was to the effect that at least where the underlying unlawful act was malum in se the involuntary manslaughter statute was not impliedly repealed by the vehicular-homicide statute.

Although the recognition of a distinction between unlawful acts mala in se, as opposed to those which are only mala prohibita has been criticized, other courts support the distinction in the involuntary manslaughter context. 7 Am.Jur.2d, Automobile and Highway Traffic § 279; 40 C.J.S. Homicide § 60. We find it necessary to embrace this distinction here because of the confusion caused by the statutes with which we are concerned. Our reasoning is bottomed in the concept that unlawful acts which are mala prohibita do not supply the requisite criminal intent, unless the killing has been the natural and probable result of the act, while unlawful acts which are mala in se do supply the necessary criminal intent. Keller v. State, 155 Tenn. 633, 299 S.W. 803, 804. In proving involuntary manslaughter in a case where the unlawful act can be classified as malum in se, such as driving while intoxicated, then there need be no further proof going to the requisite criminal intent since the act is considered wrongful in and of itself. Where, however, the unlawful act is merely malum prohibitum a matter forbidden by statute but not otherwise wrong there must be a showing that the act was done in a criminally-negligent manner, and that the death comes about as a proximate cause thereof. Perkins on Criminal Law, at 73-78 (2d ed. 1969).

Some confusion may have been created by dicta contained in State v. Cantrell, supra, at 545-546, where, in referring to the California law of manslaughter, we made the following observation "In 1945 the definition of manslaughter as a penal offense was revised by that legislature and in People v. Mitchell, 27 Cal.2d 678, 166 P.2d 10 the subject of negligent homicide was considered in connection therewith. It was there held that a person committed an 'unlawful act' within the meaning of the California Involuntary Homicide Statute if he violated speed laws designed to prevent injury to the person and the transgressor was guilty of involuntary manslaughter if death was caused by the act. And in the even later case of People v. Barnett, 77 Cal.App.2d 299, 175 P.2d 237, both the provisions of the Penal Code, Section 192 (the manslaughter statute) and the sections 476 and 450 of the Vehicle Code which made violations of traffic signals a misdemeanor were before the court and it was held that where a motorist who drove his truck into an intersection against a red traffic signal in violation of the Vehicle Code provisions and collided with an auto proceeding across the intersection on a green light and thereby caused the death of the occupants of the auto, the truck driver was guilty of involuntary manslaughter." (Emphasis supplied)

These references to traffic violations may have left the impression that any such violation, if death resulted, would be sufficient to supply the underlying unlawful act necessary for an involuntary manslaughter conviction. A reading of the cited case, People v....

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