State v. Hagge

Decision Date20 December 1974
Docket NumberCr. N
Citation224 N.W.2d 560
PartiesSTATE of North Dakota, Plaintiff/Appellee, v. Marvin HAGGE, Defendant/Appellant. o. 485.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Although repeals by implication are not favored by this court, a later statute may operate to repeal an earlier one if the statutes are irreconcilable and inconsistent.

2. There must be a clear repugnancy between the provisions of the new law and the old statute to such an extent that a necessary implication arises that the legislature by enactment of the latter Act intended to repeal the former, and then only to the extent of its repugnancy.

3. By enactment of the negligent homicide statute, the legislature removed homicide in the operation of motor vehicles from the purview of the earlier manslaughter statute and placed it within the purview of the negligent homicide statute and repealed the manslaughter statute to the extent that it included within its purview homicide resulting from improper operation of motor vehicles.

4. Whenever a general provision in a statute shall be in conflict with a special provision in the same or in another statute, the two shall be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest legislative intent that such general provision shall prevail. § 1--02--07, N.D.C.C.

5. To continue to interrogate an arrested defendant after he has asked to consult an attorney is improper; but if he makes no responses or if responses are not incriminating and are not used at the trial, the error is harmless.

Jon R. Kerian, of Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for defendant and appellant.

Richard B. Thomas, State's Atty., Minot, for plaintiff and appellee.

PAULSON, Judge.

The defendant, Marvin Hagge, has appealed to this court from the verdict of guilty and final judgment upon a conviction of the crime of manslaughter in the first degree in the Ward County District Court, as well as from the order denying a motion for a new trial.

This is the second time we have considered this case. Our first opinion can be found in State v. Hagge, 211 N.W.2d 395 (N.D.1973).

A motorist, on the evening of June 8, 1972, reported an accident involving a boy on a bicycle and a red pickup truck with a white camper top. In the course of investigating such accident report, Mitchell Zietz, age 10, was found lying in a ditch on the eastbound side of U.S. Highway No. 52, approximately one-half mile west of Burlington. The boy was unconscious and died shortly after being taken to a Minot hospital.

On the following evening, June 9, 1972, Highway Patrolman Robert Willenbring observed a pickup, resembling the vehicle reportedly involved in the accident, parked, unattended, in Burlington. Upon closer inspection, Patrolman Willenbring noted that the right front fender and grill of the pickup had been damaged. He then waited for the driver of the pickup to return. When Marvin Hagge, a contract mail carrier, returned to his pickup, Patrolman Willenbring asked Mr. Hagge several questions and, based upon the answers to such questions, he took Mr. Hagge into custody. Patrolman Willenbring informed Mr. Hagge of his constitutional rights at the time that Mr. Hagge was taken into custody.

Mr. Hagge and his pickup were then driven to the Highway Patrol Office in Minot, where Mr. Hagge was formally arrested, given an additional Miranda warning, and questioned by Patrolman Willenbring and Officer Donald Schneider. Mr. Hagge was permitted to call his wife and he made several attempts to call an attorney but was not successful in contacting such attorney.

Mr. Hagge was charged by information with the crime of manslaughter in the first degree:

'That at the said time and place the said Marvin Hagge did willfully, unlawfully and feloniously without design to do so, effect the death of Mitchell Zietz, while the said Marvin Hagge was engaged in the commission of a misdemeanor. That the said misdemeanor which the said Marvin Hagge was engaged in the commission of was Careless Driving in violation of Section 39--09--01 of the North Dakota Century Code, to-wit: that the said Marvin Hagge drove a motor vehicle on U.S. Highway #52, approximately one-half mile west of Burlington, North Dakota, in a manner to endanger the life, limb or property of any person in violation of Section 12--27--17 of the North Dakota Century Code . . .'

While Mr. Hagge raises several specifications of error in his appeal, one of his contentions is determinative in the case at bar. Mr. Hagge argues that the Legislature, by enacting § 12--27--35, N.D.C.C., has excluded cases of homicide by motor vehicles from the broad misdemeanor-manslaughter rule set forth in § 12--27--17, N.D.C.C. The pertinent portions of applicable statutes are the following:

39--09--01, N.D.C.C. (1971 S.L., ch. 374, § 1). 'Care required in operating vehicle.--Any person driving a vehicle upon a highway shall drive the same in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances. No person shall drive any vehicle upon a highway in a manner to endanger the life, limb, or property of any person.'

12--27--17, N.D.C.C. "Manslaughter in first degree' defined.--Homicide is manslaughter in the first degree in the following cases:

'1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor; . . .'

12--27--18, N.D.C.C. 'Punishment for manslaughter in first degree.--Every person convicted of manslaughter in the first degree shall be punished by imprisonment in the penitentiary for not less than five years nor more than fifteen years.'

12--27--35, N.D.C.C. 'Negligent homicide--Definition.--When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.'

12--27--36, N.D.C.C. 'Negligent homicide--Penalty.--Every person convicted of negligent homicide shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years, or in the county jail for not more than one year, or by a fine of not more than one thousand dollars or by both such fine and imprisonment.'

The main thrust of Mr. Hagge's argument is that § 12--27--35, N.D.C.C. (enacted in 1957) repeals by implication § 12--27--17(1), N.D.C.C. (enacted originally in 1877) to the extent that § 12--27--17(1) applies to charging a defendant with the crime of negligent homicide in the operation of a motor vehicle.

Although repeals by implication are not favored by this court, a later statute may operate to repeal an earlier one if the statutes are irreconcilable and inconsistent Kessler v. Board of Education of City of Fessenden, 87 N.W.2d 743 (N.D.1958); State ex rel. State Farmers' Mut. Hail Ins. Co. v. Cooper, 18 N.D. 583, 120 N.W. 878 (1909). A statute may repeal prior inconsistent legislation, whether expressly declaring such repeal or not. Hagstrom v. Estherville School Dist. No. 43, 67 N.D. 56, 269 N.W. 93 (1936). See also: State v. Morf, 80 Ariz. 220, 295 P.2d 842 (1956); State v. London, 156 Me. 123, 162 A.2d 150 (1960). More recently, in First American Bank & Trust Co. v. Ellwein, 198 N.W.2d 84, 98 (N.D.1972), this court stated:

'There must be a clear repugnancy between the provisions of the new law and the old statute to such an extent that a necessary implication arises that the legislature by enactment of the latter Act intended to repeal the former, and then only to the extent of its repugnancy.'

The primary issue before this court essentially involves a determination of whether or not the conflict between the two statutes constitutes a clear and irreconcilable inconsistency and an unavoidable repugnancy.

The fundamental test in all cases pertaining to repeal by implication is the intent of the legislature. The legislature, by enactment of the negligent homicide statute, intended to and did legislate anew in the field of homicide resulting from the improper operation of motor vehicles by redefining the penalty for such action. State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957).

The rule of repeal by implication is based upon the presumption that the legislature intends to maintain a consistent body of law in its entirety. State v. Biddle, 45 Del. 244, 71 A.2d 273 (1950). The rule necessitates a comparison of the statutes involved. In the instant case, there exist definite conflicts between the manslaughter statute and the negligent homicide statute as to the degree of proof required for conviction, the punishment imposed, and the discretion of the prosecuting attorney inherent in such conflicts between the statutes.

The difference in the degree of proof required by the applicable statutes, in our opinion, has created an inconsistency which cannot be reconciled on any reasonable basis. Pursuant to § 39--09--01, N.D.C.C., and § 12--27--17, N.D.C.C., a charge of manslaughter requires proof of only ordinary negligence. Thus, in North Dakota, the test to establish culpability for manslaughter due to criminal negligence in driving a motor vehicle is defined by § 39--09--01, N.D.C.C., to be a lower degree of...

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