State v. Cantrell

• Decision Date: 18 November 1947
• Docket Number: 2370
• Citation: 64 Wyo. 132,186 P.2d 539
• Parties: STATE OF WYOMING, Plaintiff and Respondent, v. LUTHER A. CANTRELL, Defendant and Appellant
• Court: Wyoming Supreme Court

186 P.2d 539

64 Wyo. 132

STATE OF WYOMING, Plaintiff and Respondent, v. LUTHER A. CANTRELL, Defendant and Appellant

No. 2370

Supreme Court of Wyoming

November 18, 1947

APPEAL from District Court, Albany County; V. J. TIDBALL, Judge.

Luther A. Cantrell was convicted of manslaughter, and he appeals.

Judgment affirmed.

Affirmed.

For the Defendant and Appellant there was a brief and oral argument by Mr. G. R. McConnell of Laramie, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Statute covering whole ground impliedly repeals earlier statute covering same ground. Tucker v. State, (Wyo.) 251 P 461. The general rule is, that after a statute is repealed without a saving clause, the former repealed statute, in regard to its operative effect, is considered as if it had never existed, except as to matters and transactions past and closed. Mahoney v. State, 5 Wyo. 520.

It was the clear intent of the legislature in the enactment of the 1930 law to amend and repeal all previous laws. United States Fidelity and Guaranty Co. v. Anderson, 38 Wyo 88, 264 P. 1030. Penal statutes are to be strictly construed. State v. Hall, 27 Wyo. 224, 194 P. 476. Penal provisions are strictly construed in favor of the individual. Brown v. Harris, 36 Wyo. 406, 256 P. 336.

A penal law may, like any other statute, be repealed either expressly or by necessary implication; and such a statute is repealed by implication if a later statute is so repugnant to the earlier one that the two cannot stand together, or if the whole subject of the earlier statute is covered by the later one having the same object, and which was clearly intended to prescribe the only rules applicable to the subject. 16 C. J. 69, Sec. 33.

Where two criminal statutes are repugnant as to punishment, which may be inflicted, they cannot stand together. State v. McClellan, 98 So. 748, 31 A. L. R. 527.

A statute making an offense both a felony and a misdemeanor is unconstitutional. State v. Hall, 134 Southern, p. 898. The court will not presume that the legislature intended to make a transaction a misdemeanor under one statute, and to make the same transaction a felony under another statute. People v. Peers, 307 Ill. 539, 139 N.E. 13, 15.

The normal function of a witness is merely to state facts within his personal knowledge, and under ordinary circumstances his opinion or conclusion with respect to matters in issue or relevant to the issue cannot be received. 22 C. J. Sec. 588, p. 485.

The witness should state the facts on which his inference is based, so far as this is possible, as for instance a distinctive motion, odor, sound, voice, or walk. The fact that the data for the inference are meager affect only the weight of the evidence, but an inference based on clearly insufficient facts or on no fact at all will be rejected. Evidence may be received to show that the data relied on are valueless for purposes of identification. C. J. 22, Sec. 693, pp. 598-599.

It is a fundamental principle of the law of evidence as administered by our court, both in civil and criminal cases, that the testimony of witnesses upon matters within the scope of the common knowledge and experience of mankind, given upon the trial of a cause, must be confined to statements of concrete facts within their own observation, knowledge and recollection--that is, facts perceived by the use of their own senses--as distinguished from their opinions, inferences, impressions and conclusions drawn from such facts. 20 A. J. 765, 634, 635.

For the Plaintiff and Respondent there was a brief by Norman B. Gray, Attorney General, John S. Miller, Deputy Attorney General and Frank M. Gallivan, Assistant Attorney General, all of Cheyenne, Wyoming, and oral argument by Mr. Miller.

POINTS OF COUNSEL FOR RESPONDENT

An information charging the crime of manslaughter in the words of the statute is sufficient. Section 10-705, W. C. S. 1945; State v. McComb, 33 Wyo. 346, 239 P. 526.

Driving while under the influence of liquor, or while intoxicated, is something held by most courts to be malum in se, and therefore such an act as will, if death ensue, support a charge of manslaughter. State v. Richardson, 216 Iowa. 809; 249 N.W. 211; Black v. State, 34 Ga.App. 449, 130 S.E. 591; State v. Boag, 59 P.2d 396 (Ore.); State v. Kellison, (Iowa) 11 N.W.2d 371; Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A. L. R. 685; 99 A. L. R. 756.

The statutory offense of "negligent homicide", Section 60-413, W. C. S. 1945, does not include all the elements of the crime of manslaughter.

It is a fundamental principle that a statute which is in effect a limitation upon a general act limits the general act only so far as the words of the limiting statute go. Where there is a general act creating and punishing an offense, which may be committed in a number of ways, and another statute prescribing a particular punishment for that offense when committed in a particular manner, such offense, unless committed in such manner, is subject to punishment under the general act; and it is equally true that a penal statute must be construed strictly. Haines v. Territory, 3 Wyo. 167, 13 P. 8.

In enacting the statute on "negligent homicide", contained in the motor vehicle traffic code, the legislature did not intend to limit the application of the law relating to manslaughter. If the Legislature had intended that negligent homicide was to take the place of manslaughter as a punishable offense, it is reasonable to assume that the words "culpable neglect or criminal carelessness," so long in use in this state, would have been applied in definition.

The statute prescribing the penalty for negligent homicide resulting from the reckless operation of an automobile, does not have the effect contended for by counsel, for the following reasons: --(a) The wording of the statute itself, and the great disparity between the penalty provided for that crime and that provided for manslaughter, conclusively show that the Legislature contemplated a lesser degree of negligence than is involved in manslaughter; (b) Even if it could be said that the "reckless disregard" used in the negligent homicide act were synonoymous with "culpable neglect or criminal carelessness," as those words appear in the manslaughter statute, thus making the two laws relate to the same offense, the later act would supersede only a portion of the manslaughter statute, and would not affect the crime of killing involuntarily, but during the commission of an unlawful act.

Opinion evidence of intoxication is generally held to be admissible, especially where it is accompanied by testimony as to the facts upon which the opinion is predicated. 20 A. J. 736. 3 Nichols Applied Evidence, 2681; Connor v. State, 91 Fla. 214, 107 So. 360; State v. Boag, (Ore.) 59 P.2d 396; McHugh v. Borough, (N. J.) 144 A. 799; Cox v. Hrasky, 318 Ill.App. 287, 47 N.E.2d 728; Holton v. Boston Elevated Ry. Co., (Mass.) 21 N.E.2d 251.

The verdict cannot be impeached by the affidavits of the jurors, much less by the affidavit of a third person reciting hearsay statements made by a juror. Thayer v. State, 55 Wyo. 50, 95 P.2d 80; Marcante, et al. v. Hein, 51 Wyo. 389, 67 P.2d 196; State v. Parker, 44 Wyo. 478, 13 P. 2d. 641; Morris v. State, 39 Wyo. 157, 270 P. 415; Pullman Co. v. Finley, 20 Wyo. 456, 125 P. 380.

RINER, Chief Justice. KIMBALL, J., concurs. BLUME, J., Concurring specially.

OPINION

RINER, Chief Justice.

This case is a direct appeal proceeding brought by Luther A. Cantrell, defendant and appellant, to obtain the review of a record which resulted in a judgment and sentence against him by the district court of Albany County. The record in that court was initiated by the filing therein by the County and Prosecuting Attorney of a verified information charging Cantrell as defendant with the crime of manslaughter. Omitting the formal parts and the allegations of time and place, this information stated that Luther Cantrell "did unlawfully kill Charles Frederick Winchell, a human being, contrary to the form of the statute" etc. The defendant had previously been arrested and was in due course admitted to bail.

Briefly, the facts upon which this charge was filed were that on the 21st day of October, 1945 Cantrell had driven his Chevrolet truck weighing approximately a ton and a half, its body loaded with loose apples which he had purchased in the Grand Valley of the State of Colorado for subsequent sale, from Rawlins, Wyoming to a point on U.S. Highway No. 30 nearly one mile south of Bosler--a total distance of about 100 miles. At this point he attempted to pass a Dodge sedan car made over into a pick up truck driven by Winchell, both vehicles traveling in a southerly direction. The Dodge truck at the time was proceeding well over on its own side, the westerly half, of the highway, Winchell being an elderly man, 78 years old, and a slow, careful driver. The defendant stated as a witness in his own behalf in explanation of the accident which occurred on the highway at this place:

"Just as I came up on the car and started to go around him, you know, started to pass him, the right tire blew out. When it did, it throwed me right into him just that (snapping fingers) quick."

There was other testimony, however, that the collision between the two trucks was caused by the Cantrell vehicle striking that driven by Winchell in the rear so that the impact of the two cars was on "the inside of that rim" i. e. on the inside of the right front tire of Cantrell's car, the left wheel track of that truck being on the center line of the road and the other wheel track being over towards the Winchell Dodge pick up. The front of the Cantrell truck was severely damaged and the Winchell car was wrecked, as one witness put it "it was...