State v. Conner, 62499

• Decision Date: 21 May 1980
• Docket Number: No. 62499,62499
• Citation: 292 N.W.2d 682
• Parties: STATE of Iowa, Appellant, v. James CONNER, Appellee.
• Court: Iowa Supreme Court

Page 682

292 N.W.2d 682

STATE of Iowa, Appellant, v. James CONNER, Appellee.

No. 62499.

Supreme Court of Iowa.

May 21, 1980.

Thomas J. Miller, Atty. Gen., Selwyn L. Dallyn, Asst. Atty. Gen., and Dan L. Johnston, Polk County Atty., for appellant.

James F. Fowler of Wilson, Goodhue & Fowler, Indianola, for appellee.

Considered en banc.

ALLBEE, Justice.

This appeal by the State from trial court's dismissal of an indictment against defendant Jim Conner requires our determination of the element of culpability intended by subsection 707.5(1), Supplement to the Code 1977. That section provides: "A person commits a class 'D' felony when the person unintentionally causes the death of another person by the commission of a public offense other than a forcible felony or escape."

The indictment in question accused defendant of violating subsection 707.5(1) by unlawfully and unintentionally causing the death of Frank Matijevich as a result of committing a public offense on February 4, 1978. In response to the indictment, defendant moved for a bill of particulars in part to learn what "public offense" the State would rely upon to prove violation of subsection 707.5(1). In the bill of particulars subsequently filed, the State said it would rely upon defendant's disobedience of a signal light while operating his motor vehicle.

Defendant then filed a motion to dismiss, attacking the constitutionality of subsection 707.5(1) and asserting that the statute should not be construed so as to include within its definition the mere disobedience of a signal light. Trial court sustained the motion upon solely the statutory construction grounds and did not address the constitutional grounds.

I. Statutory Construction.

The State argues, first, that the statutory subsection construed, § 707.5(1), is unambiguous and thus statutory construction was inappropriate. While conceding that under the common law, prior to the enactment of subsection 707.5(1), a defendant could not be convicted of involuntary manslaughter on the basis of a mere traffic violation absent recklessness on his part, it argues that subsection 707.5(1) creates a new crime in which recklessness is not a necessary element. This view, it says, is supported by its contention that subsection 707.5(2), alternatively defining involuntary manslaughter as unintentionally causing death "by the commission of an act in a manner likely to cause death or serious injury," represents a codification of the common law definition of involuntary manslaughter, which required recklessness; thus, to impute to subsection 707.5(1) the element of recklessness would make that section mere surplusage.

The State's manner of examining subsection 707.5(1) for indefiniteness or ambiguity is myopic. The polestar of statutory interpretation is legislative intent. E. g., Loras College v. Iowa Civil Rights Commission, 285 N.W.2d 143, 147 (Iowa 1979). To discern that intent, it is necessary to examine the whole act of which the statutory provision in question is a part. E. g., Williams v. Osmundson, 281 N.W.2d 622, 626 (Iowa 1979); In re Estate of Bliven, 236 N.W.2d 366, 369 (Iowa 1975); see 2A C. Sands, Statutes and Statutory Construction § 47.02 (4th ed. 1973). Particularly relevant are substantively related provisions adopted in the same legislative session. See, e. g., State v. Schmitt, 290 N.W.2d 24, 26 (Iowa 1980); Iowa Farm Serum Co. v. Board of Pharmacy Examiners, 240 Iowa 734, 740, 35 N.W.2d 848, 851 (1949). From this examination of related provisions, an overall legislative scheme may become evident. If any single provision, read literally and in isolation, would be repugnant to the overall purpose or scheme, reasonable minds may be uncertain as to its meaning. Statutory construction is then appropriately invoked. See, e. g., Janson v. Fulton, 162 N.W.2d 438, 443 (Iowa 1968); Case v. Olson, 234 Iowa 869, 876-77, 14 N.W.2d 717, 721 (1944).

As defendant correctly observes, subsection 707.5(1) is repugnant to the general scheme of sections 707.1-.5, which show a gradation of culpability commensurate with the gradation of punishment. Accordingly, first degree murder is listed first in the Code, requiring malice aforethought plus deliberateness and premeditation or certain aggravating circumstances, §§ 707.1, .2, Supplement to the Code 1977, and imposing a life sentence for its violation, see id.; § 902.1. Next is listed second degree murder, requiring only malice aforethought, §§ 707.1, .3, and permitting imposition of a maximum penalty of twenty-five years of confinement, see id.; § 902.9(1). Voluntary manslaughter follows, requiring intentional killing in a heat of passion resulting from serious provocation, § 707.4, and permitting imposition of a maximum penalty of ten years of confinement and $5000, see id.; § 902.9(3). Last in this sequence are the provisions for involuntary manslaughter, or unintentional killing. The first, subsection 707.5(1), is the unlawful act provision quoted at the beginning of this opinion. It is a class "D" felony, permitting imposition of a maximum sentence of five years and $1000. Id.; § 902.9(4). The second, subsection 707.5(2), requiring causing death by committing an act "in a manner likely to cause death or serious injury," is an aggravated misdemeanor, for which the maximum penalty is only two years of imprisonment and $5000. Id.; § 903.1(1).

We agree with the State that recklessness is an implied requirement of subsection 707.5(2). As noted in J. Yeager & R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 148 (1979), "the words 'in a manner likely to cause death or serious injury' implies an awareness of the risk or at least that the accused should have been aware of the risk." It is this subjective awareness of the risk, although usually determined objectively, that distinguishes civil negligence, which requires only objective awareness of the risk, from criminal negligence, id.; see W. LaFave & A. Scott, Handbook on Criminal Law § 30, at 209-15 (1972); R. Perkins, Criminal Law 760-61 (2d ed. 1969), and has been considered a required element of manslaughter in our prior cases, see State v. Wallin, 195 N.W.2d 95, 99 (Iowa 1972); State v. Boner, 186 N.W.2d 161, 166 (Iowa 1971) ("what might be considered actionable negligence in the law of torts, unaccompanied by a wanton and reckless disregard or indifference to the safety of others will not constitute the basis for a conviction of the crime of manslaughter"). More recently, we have labeled this standard of culpability "recklessness." State v. Kernes, 262 N.W.2d 602, 605-06 (Iowa 1978).

To read subsection 707.5(1) literally, as requiring no mens rea or fault, but subsection 707.5(2) as requiring recklessness would be to impose a stricter sanction for a crime requiring less culpability, in contradiction of the statutory scheme. This contradiction warrants the application of rules of statutory construction because of the uncertainty it creates as to the intended meaning of subsection 707.5(1).

Another justification for statutory construction here is the often-repeated principle first articulated by this court in State v. Dunn, 202 Iowa 1188, 1189, 211 N.W. 850, 851 (1927): "Whether a criminal intent or guilty knowledge is an essential element of a statutory offense is to be determined as a matter of construction from the language of the act, in connection with its manifest purpose and design." Applying this rule, this court has, on a number of occasions, construed a statute to include a criminal intent element absent from its face. See, e. g., State v. Christopher, 176 N.W.2d 777, 778 (Iowa 1970) (damage apparent to defendant implied element in statute requiring driver who collides with unattended vehicle to leave his name and address); State v. Ramos, 260 Iowa 590, 594-95, 149 N.W.2d 862, 864-65 (1967) (scienter implied in obscenity statute); State v. Drummer, 254 Iowa 324, 117 N.W.2d 505 (1962) (guilty knowledge implied in statutory crime of operating motor vehicle without owner's consent); State v. Schultz, 242 Iowa 1328, 50 N.W.2d 9 (1951) (guilty knowledge implied in statute prohibiting sale of beer to minors); cf. State v. Waterman, 190 N.W.2d 809, 814 (Iowa 1971) (Becker, J., concurring) (intent to violate flag desecration statute strongly implied by words in statute). This type of statutory construction is not uncommon. See W. LaFave & A. Scott, supra § 31, at 219-21 (1972).

To supply the appropriate element of criminal intent or fault included in subsection 707.5(1), we turn to the common law definition of the crime. Consideration of the common law concerning the same or similar subjects is a statutorily prescribed rule of statutory construction, § 4.6(4), The Code, which becomes especially important when an element of criminal intent is missing from a statute, see Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952); 2A C. Sands, supra § 50.02, at 275, and when the statute purports to restate the common law, see Peterson v. Gittings, 107 Iowa 306, 311, 77 N.W. 1056, 1058 (1899); 2A C. Sands, supra § 50.02, at 274. Emery v. Fenton, 266 N.W.2d 6, 8 (Iowa 1978), indicates that the revision of the Iowa criminal law, of which subsection 707.5(1) is a part, is considered "primarily a restatement of prior law" by Professor John H. Yeager, who prepared the initial drafts of new statutes for the legislative subcommittees on substantive criminal law and sentencing.

Prior to the enactment of the new criminal code on January 1, 1978, manslaughter was defined only by case law. State v. Shimon, 182 N.W.2d 113, 114-15 (Iowa 1970). Commonly, that definition, as articulated in the cases, made no reference to the particular mens rea or fault required for involuntary manslaughter. See, e. g., State v. Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410 (1943); State v. Kellison, 233 Iowa 1274, 1277, 11 N.W.2d 371, 373 (1943) (defined as the unintentional killing...