State v. Lewis, 640
| Decision Date | 02 June 1960 |
| Docket Number | No. 640,640 |
| Citation | 161 A.2d 209,91 R.I. 110 |
| Parties | STATE v. Alfred J. LEWIS, Jr. C. Q. |
| Court | Rhode Island Supreme Court |
J. Joseph Nugent, Atty. Gen., Carmine A. Rao, Sp. Counsel, Providence, for State.
John T. Walsh, Providence, for defendant.
This is a criminal complaint charging that on May 22, 1959 the defendant operated an automobile while under the influence of intoxicating liquor in violation of General Laws 1956, § 31-27-2. The pertinent part of that statute reads: 'It is unlawful * * * for any person who is under the influence of intoxicating liquor or of narcotic drugs to drive or be in actual physical control of any vehicle within this state.' After a trial and conviction in the district court, the defendant appealed to the superior court for a trial de novo.
On September 23, 1959 defendant, with leave of the superior court, moved to dismiss the complaint, contending that Public Laws 1959, chapter 101, upon becoming effective September 1, 1959 repealed G.L.1956, § 31-27-2. In support of this motion he argued that the offense established under the provisions of the new statute was essentially a different one from that with which he was charged in the complaint; that the repealing act did not contain a saving clause; and that therefore further prosecution under the repealed statute was barred.
The attorney general deemed the question raised by the motion to dismiss to be of such doubt and importance and so affecting the merits of the controversy that it ought to be determined by this court before further proceedings. He therefore moved that such question be certified under the provisions of G.L.1956, § 9-24-27. The question certified reads as follows: 'Does Chapter 101 of the Public Laws of 1959, amending Section 31-27-2 of the General Laws of 1956, constitute a bar to the prosecution and punishment of crimes already committed in violation of the Statute prior to such amendment.'
At the January 1959 session of the general assembly § 31-27-2 was amended by enacting P.L.1959, chap. 101, the pertinent provisions of which read as follows: 'It is also unlawful and punishable as provided in paragraph (c) of this section for any person who is under the influence of intoxicating liquor to a degree which renders him incapable of safely operating a vehicle to drive or be in actual physical control of any vehicle within this state.' Section 2 of chap. 101 provided that it would become effective on September 1, 1959 and 'thereupon all acts or parts of acts inconsistent herewith shall stand repealed.' It is not disputed that § 31-27-2 was repealed as of September 1, 1959.
The question certified is ambiguous and is not susceptible of either an exclusively affirmative or negative answer. It is not clear from the language thereof whether it is an inquiry as to the effect of the repeal of the prior act on the prosecution for an offense that was pending at the time the repeal took effect, or an inquiry as to the effect of the repeal of the prior act on an offense committed thereunder for which no prosecution had been instituted at the time of the repeal thereof. Ordinarily if such an ambiguity existed we would remand the question to the superior court for clarification.
In this case, however, it appears from the order of certification that the question of doubt and importance arose out of defendant's motion to dismiss the criminal complaint pending against him at the time of the repeal of § 31-27-2. In such circumstance the question whether the repeal of § 31-27-2 barred the institution of a criminal proceeding for a violation thereof prior to the repeal could not have been within the contemplation of the parties. Without intending to establish a precedent, we will therefore consider the question in the light of the issue from which it arose, and construe it as being limited in scope to the effect of the repeal of § 31-27-2 on a prosecution for a violation thereof pending at the time the repealing act took effect.
The state argued before us that the provisions of the amendatory act, chap. 101, did not create a new and different offense from the one established by the prior act. It also argued vigorously that the repeal of the prior act did not bar the prosecution of defendant for the offense with which he was charged thereunder because G.L.1956, § 43-3-23, authorizes the maintenance of the prosecution for offenses committed while the prior act was in effect even though the repealing statute does not specifically provide for the preservation of such prosecution. Since the conclusion which we reach as to the latter contention is determinative of the question certified, we will discuss only that point.
Section 43-3-23 reads as follows: 'No suit, prosecution or indictment, pending at the time of the repeal of any statute for any offense committed, or for the recovery of any fine, forfeiture or penalty, incurred under the statute to repealed, shall in any case be affected by such repeal, but such suit, prosecution or indictment, may be proceeded with, and such act shall be deemed to...
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