State v. Deming, 6568

• Decision Date: 21 September 1959
• Docket Number: No. 6568,6568
• Citation: 1959 NMSC 74,66 N.M. 175,77 A.L.R.2d 964,344 P.2d 481
• Parties: , 77 A.L.R.2d 964 STATE of New Mexico, Plaintiff-Appellee, v. Darrell D. DEMING, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 481

344 P.2d 481

66 N.M. 175, 77 A.L.R.2d 964

STATE of New Mexico, Plaintiff-Appellee, v. Darrell D. DEMING, Defendant-Appellant.

No. 6568.

Supreme Court of New Mexico.

Sept. 21, 1959.

Neal & Neal, Hobbs, for appellant.

Hilton A. Dickson, Jr., Atty. Gen., Hilario Rubio, Asst. Atty. Gen., Carl P. Dunifon, Asst. Atty. Gen., for appellee.

MOISE, Justice.

This is an appeal from a conviction on a charge of involuntary manslaughter. The defendant was charged in two counts of an information with the unlawful killing of Henry Ray Anderson and Jerry Eugene Lowe. The charges arose out of a collision between a car being driven by defendant and a motor scooter being ridden by the two boys at about midnight of June 29, 1958, on Highway 180, just east of Hobbs, New Mexico. A bill of particulars filed by the district attorney specified that at the time of the incident the defendant was driving while under the influence of intoxicating liquor in violation of Sec. 64-22-2, N.M.S.A.1953, as amended by Sec. 8, Chap. 184, N.M.S.L.1955, and that he was driving recklessly in violation of Sec. 64-22-3, N.M.S.A.1953. At the close of the State's case that portion of the charge based upon reckless driving contrary to Sec. 64-22-3, N.M.S.A.1953, was dropped, and the case proceeded only on the first specified violation--death resulting from driving while under the influence of intoxicating liquor.

Four points are relied on for reversal.

Under Point I appellant argues that by the adoption of Ch. 139, N.M.S.L.1953, being the Uniform Act Regulating Traffic on Highways, the crime of negligent homicide was created (Sec. 53, being Sec. 64-22-1, N.M.S.A.1953) and also the offense of driving while under the influence of intoxicating liquor was made a felony (Sec. 54, being Sec. 64-22-2, N.M.S.A.1953; State v. Klantchnek, 59 N.M. 284, 283 P.2d 619) thereby effectively repealing our involuntary manslaughter provision (Sec. 40-24-7, N.M.S.A.1953) in so far as it was applicable to deaths resulting from driving while under the influence of intoxicating liquor. Thereafter, upon repeal of the negligent homicide statute (1957 N.M.S.L. Ch. 239), and amendment of the driving while intoxicated statute (1955 N.M.S.L. Ch. 184, Sec. 8) to again make the offense a misdemeanor, he reasons that the old involuntary manslaughter provision was not thereby agian made applicable or re-enacted.

Principal reliance is placed on the case of State v. Davidson, 78 Idaho 553, 309 P.2d 211, which held that adoption of the negligent homicide statute repealed the manslaughter statute, at least in so far as cases involving driving while under the influence of intoxicating liquor was concerned. It is important to note, however, that in 1949 the Idaho involuntary manslaughter statute had been amended to include within its terms '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 * * *.' I.C. Sec. 18-4006. (Amendatory matter emphasized.) The court held in the cited case that the negligent homicide provision subsequently passed must have been intended to cover the entire field of deaths resulting from operation of motor vehicles, and although repeals by implication are not favored, necessarily the portion of the manslaughter statute added by amendment in 1949 was repealed.

The difference between the situation in Idaho and that present here is obvious if it is noted that our involuntary manslaughter statute differs materially from that in Idaho and covered death resulting from driving while under the influence of intoxicating liquor because driving while so influenced was a misdemeanor prior to 1953, and therefore when a death resulted, it was 'in the commission of an unlawful act not amounting to felony.' In 1953 when it was made a felony it was taken out of the operation of this statute, but the statute was not in any sense repealed. It remained in full force and still applicable to all cases of death resulting from unlawful acts not amounting to felonies.

It is not necessary for us to decide if between 1953 and 1955, prosecutions could have been had under our murder statute because committed 'in the perpetration of or attempt to perpetrate any felony' (Sec. 40-24-4) or only under the negligent homicide statute (Sec. 64-22-1) because this case did not arise during that period. Neither need we decide what the situation was between 1955 and 1957.

It is only necessary for us to determine whether or not, after repeal of the negligent homicide statute and the making of driving while intoxicated a misdemeanor, a prosecution under the involuntary manslaughter statute was permitted.

We believe it is clear that it was, and that this prosecution was properly brought thereunder. As stated before, the involuntary manslaughter statute was in no sense repealed by adoption of the negligent homicide statute, but has been in full force and effect at all times--cases of death resulting from driving while under the influence of intoxicating liquor being taken out from under its operation by adoption of Sec. 64-22-2, N.M.S.A.1953. Upon repeal of the negligent homicide statute (1957 N.M.S.L. Ch. 239) and reinstating the offense as a misdemeanor (1955 N.M.S.L. Ch. 184, Sec. 8) it would follow that the applicability of the involuntary manslaguther statute would automatically ensue. That such would be the intention of the legislature can hardly be doubted. To hold otherwise, that there was no offense provided for under such circumstances when he whole country is aroused over the growing number of highway fatalities would be to arrive at a most incongruous result, to say the least.

The rule is stated in Ventura County v. Barry, 202 Cal. 550, 262 P. 1081, a decision of the California Supreme Court, and was applied by the California District Court of Appeals, First District, in the case of People v. Ely, 71 Cal.App.2d 729, 163 P.2d 453, a case very much like the instant case, arising after California repealed the negligent homicide statute. The Supreme Court of California also applied the rule in a comparable case in People v. Mitchell, 27 Cal.2d 678, 166 P.2d 10. The same rule was applied in the Missouri case of State v. Chadeayne, Mo.App.1958, 313 S.W.2d 757. See 50 Am.Jur. 575, and Ann.Cas.1918B, 281. In what is here said we do not overlook Sec. 1-2-3, N.M.S.A.1953, but would point that this statute has no application here where the earlier statute was not repealed.

Mention should probably be made of the fact that in many states, upon varying types of manslaughter statutes, subsequent passage of the negligent homicide statute was determined not to operate as repealed of the manslaughter statute. State v. Cantrell, 64 Wyo. 132, 186 P.2d 539; see, also, 25 Cal.L.R. 1.

As his second point appellant asserts that it was an abuse of discretion by the court to permit a medical technician who had only made four tests to determine alcoholic content of blood to testify concerning her findings. Although it is true that the witness had only made four tests for alcoholic content of blood the evidence discloses that she was the laboratory technician at the Lea County Hospital,...