State v. Bunn

Decision Date08 May 1968
Docket NumberNo. 4456,4456
Citation50 Haw. 351,440 P.2d 528
PartiesSTATE of Hawall, Plaintiff-Appellee, v. Lucile B. BUNN, Defendant-Appellant.
CourtHawaii Supreme Court

Syllabus by the Court

1. The rule that an appellate court will not answer questions which were not raised in the trial court is not a rigid one and may be deviated from if deviation is necessary to serve the ends of justice or to prevent the denial of fundamental rights.

2. In order to come within the rule that the enactment of a later statute covering the entire subject matter of an earlier statute and intended as its substitute operates as a repeal of the earlier statute, the legislative intent to have the later statute operate as a repeal of the earlier statute must be clear and manifest.

3. A statute which mollifies the rigor of an existing criminal statute does not come within the constitutional prohibition of ex post facto laws.

4. Division of a crime into degrees, without more, does not result in the creation of a new crime for each degree of the crime.

5. The change in the definition of the crime of negligent homicide from one that is committed by operating a vehicle 'in a careless, reckless or negligent manner, but not wilfully or wantonly' to one that is committed by operating a vehicle 'in a grossly negligent manner' did not change the nature of the crime, an act done 'in a grossly negligent manner' being encompassed within an act done 'in a careless, reckless or negligent manner, but not wilfully or wantonly.'

6. Gross negligence is an aggravated form of negligence, which differs from ordinary negligence only in degree and not in kind.

7. A determination of the question as to whether a statute is ex post facto does not depend upon the operation on a particular individual but upon its effect on all prior wrongdoers as a class.

8. In determining the constitutional validity of a statute, the motivation of the legislature in enacting it, or its assumption as to its efficacy in producing more convictions is immaterial, what is material being the actual action which the legislature took.

9. Where during the pendency of a criminal proceeding an ex post facto law is enacted without a specific saving clause, by the operation of the general saving statute the prosecution may be continued under the statute as it existed at the time the crime was committed.

Robert B. Bunn, Honolulu (J. Russell Cades, Honolulu, with him on the briefs, Smith Wild, Beebe & Cades, Honolulu, of counsel), for appellant.

Richard T. Ishida, Deputy Pros. Atty., City and County of Honolulu (John H. Peters, Pros. Atty., with him on the briefs), Nobuki Kamida, Deputy Atty. Gen. (Bert T. Kobayashi, Atty. Gen., with him on the brief), appeared but did not argue, for appellee.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

MARUMOTO, Justice.

On January 19, 1964, Lucile B. Bunn, appellant, drove her automobile on Diamond Head Road in Honolulu at a high rate of speed, crossed over the center line to the left side of the road, and struck an automobile approaching from the opposite direction. The occupants of the approaching automobile, Christopher J. Benny, and his wife, Ruth Lucille, were injured in the accident and subsequently died.

The Honolulu Police Department investigated the accident, and on February 14 an investigating officer signed a complaint before a district magistrate charging appellant with the commission of the offense of negligent homicide in violation of R.L.H.1955, § 291-10. The complaint contained two counts, one for causing the death of Benny and the other for causing the death of his wife.

Appellant was arraigned in the district court on February 19, at which time she waived preliminary examination and was committed to the circuit court for jury trial, subject to indictment by the grand jury.

At the time of the accident, the negligent homicide statute read as follows:

' § 291-10. Negligent homicide; penalty. Every person who by the operation of any vehicle in a careless, or negligent manner, but not wilfully or wantonly, causes the death of another, shall be guilty of the crime of negligent homicide and shall be imprisoned at hard labor not more than five years.'

While the case was pending in the circuit court, the Legislature enacted Act 48 of the Session Laws of 1964, which amended the negligent homicide statute to read as follows:

' § 291-10. Negligent homicide; degrees; penalties. (a) Every person who by the operation of any vehicle in a grossly negligent manner causes the death of another, shall be guilty of the crime of negligent homicide in the first degree and shall be imprisoned at hard labor not more than five years.

'(b) Every person who by the operation of any vehicle in a negligent manner causes the death of another, shall be guilty of the crime of negligent homicide in the second degree and shall be fined not more than $1,000.00, (or) imprisoned not more than one year, or both.'

The act was approved by the Governor on April 30 and became law on that date. A provision in the act made it applicable to all cases of negligent homicide pending before the circuit courts at the time it took effect as law.

Hereafter in this opinion § 291-10 as it existed before Act 48 became law will be referred to as the former § 291-10, and the same statute as amended by Act 48 will be referred to as the new § 291-10.

On May 8, appellant appeared in the circuit court with her counsel, waived prosecution by indictment, and consented to a proceeding by information. The prosecuting attorney thereupon filed an information charging appellant with the commission of the offense of negligent homicide in the first degree in violation of § 291-10.

The statute mentioned in the information is obviously the new § 291-10. As in the case of the complaint signed by the investigating officer, the information charged the commission of the offense in two counts.

Upon the filing of the information, appellant asked the court for a continuance of two weeks within which to enter her plea. The court granted the request. This was done to enable appellant's counsel to study Act 48 and the effect of its enactment upon appellant's liability for the offense charged in the information.

Two weeks later, on May 22, appellant entered a plea of not guilty to both counts of the information. But on July 28, she withdrew her plea of not guilty and pleaded nolo contendere. Upon the entry of this plea of nolo contendere, the court orally adjudged appellant guilty and referred the matter to the adult probation officer for investigation and report.

Appellant's counsel was in court at the time appellant changed her plea, but made no statement other than to apprise the court that his client desired to change her plea and that he had informed her about the penalty for the offense with which she had been charged.

On August 28, the circuit court entered its judgment, and sentenced appellant to imprisonment at hard labor for five years as to the first count and five years as to the second count, both sentences to run concurrently.

The case is before this court on appeal from the foregoing judgment and sentence.

In her opening brief, appellant urged only one ground for reversal, namely, that her conviction is void because it is for a violation of the new § 291-10, which she contends is an ex post facto law as applied to the act of negligence with which she was charged in the information.

This contention had not been presented to the circuit court, although appellant's counsel was aware of the existence of the problem before appellant entered her plea of nolo contendere.

Consequently, relying on the general rule that appellate courts will not consider questions which were not raised in the trial courts, the prosecution moved to dismiss the appeal.

This court deferred consideration of the motion, ordered the prosecution to file its answering brief, and heard the argument on the motion at the same time it heard the argument on the merits.

The rule upon which the prosecution relies for its motion to dismiss is one that is founded on considerations of fairness to the courts and to the parties, and also of the public interest in bringing litigation to an end after fair opportunity has been accorded to litigants to present all issues of law and fact.

This court followed the rule in Territory v. Kelley, 38 Haw. 433 (1949); Territory v. Tsutsui, 39 Haw. 287 (1952); and Territory v. Alford, 39 Haw. 460 (1952).

The rule is not a rigid one, and may be deviated from, if deviation is necessary to serve the ends of justice or to prevent the denial of fundamental rights. United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936); Re Guardianship of H. K. Ward, 39 Haw. 39, 46 (1951).

The ground for reversal appellant urged in her opening brief involves an important constitutional issue affecting her fundamental rights. We therefore deny prosecution's motion to dismiss this appeal.

We turn now to the merits of this appeal. In this connection, it may be stated that appellant has asserted in her reply brief a ground for reversal premised on Act 102 of the Session Laws of 1965, which is in addition to the ground for reversal urged in her opening brief. Act 102 became law after appellant filed her opening brief and before her reply brief was due. It amended § 258-52, which governs the determination of the minimum term of imprisonment in a felony case. Appellant's position with respect to Act 102 is that it also is an ex post facto law as applied to her situation.

Freedom from prosecution or punishment under an ex post facto law is a right recognized in article I, section 10, of the United States Constitution, which enjoins any state from enacting such laws.

The United States Supreme Court considered this constitutional provision in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), where it held that the prohibition applies only to...

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  • Cornel v. Hawaii
    • United States
    • U.S. District Court — District of Hawaii
    • November 17, 2020
    ...is an aggravated form of negligence, which differs from ordinary negligence only in degree and not in kind." State v. Bunn , 50 Haw. 351, 358, 440 P.2d 528, 534 (1968). "In Hawaii, courts recognize gross negligence as ‘an entire want of care which raises a presumption of conscious indiffere......
  • Commonwealth v. Rose
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    • Pennsylvania Supreme Court
    • November 18, 2015
    ...of such negligence, was the relevant date of the unintentional crime for purposes of an ex post facto analysis); State v. Bunn, 50 Haw. 351, 440 P.2d 528 (1968) (engaging in ex post facto analysis in case involving negligent homicide by vehicle).Finally, as the United States Supreme Court n......
  • State v. Miyazaki
    • United States
    • Hawaii Supreme Court
    • May 27, 1982
    ...defects affecting substantial rights may be noticed although they were not brought to the attention of the court." See State v. Bunn, 50 Haw. 351, 440 P.2d 528, 532 (1968). Moreover, we have previously held that a defendant's right to be free from double jeopardy is just such a substantial ......
  • Commonwealth v. Rose
    • United States
    • Pennsylvania Supreme Court
    • November 18, 2015
    ...of such negligence, was the relevant date of the unintentional crime for purposes of an ex post facto analysis); State v. Bunn, 50 Haw. 351, 440 P.2d 528 (1968) (engaging in ex post facto analysis in case involving negligent homicide by vehicle).Finally, as the United States Supreme Court n......
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