State v. London

• Citation: 162 A.2d 150,156 Me. 123
• Parties: STATE v. Donald F. LONDON.
• Decision Date: 27 May 1960
• Court: Maine Supreme Court

Page 150

162 A.2d 150

156 Me. 123

STATE v. Donald F. LONDON.

Supreme Judicial Court of Maine.

May 27, 1960.

Ferris A. Freme, County Atty., Caribou, for plaintiff.

Albert M. Stevens, Presque Isle, Lynwood E. Hand, Houlton, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SIDDALL, Justice.

The respondent was indicted and convicted of the crime of manslaughter following the death of another in an automobile accident. The State claimed that the respondent was the operator of a vehicle in which the person killed was a passenger. The respondent seasonably filed a motion for a new trial. The motion was denied and respondent appealed.

One of the issues raised in the case now before us is whether or not P.L.1957, Chap. 333, Sec. 2, hereafter called either the reckless homicide statute or the later statute repeals or supersedes in part R.S.1954, Chap. 130, Sec. 8, hereafter called either the manslaughter statute or the earlier statute.

R.S.1954, Chap. 130, Sec. 8, provides:

'Manslaughter, definition.--Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought, * * * or commits manslaughter as defined by the common law, shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 20 years.'

It has been held that involuntary manslaughter insofar as it relates to a death caused by the operation of an automobile may be committed (1) when the operator is guilty of criminal negligence, (2) when the homicide occurred in the performance of an unlawful act malum in se, (3) when the homicide occurred in the performance of an unlawful act malum prohibitum if such act was the proximate cause of the death. State v. Budge, 126 Me. 223, 137 A. 244, 53 A.L.R. 241.

The respondent contends that the manslaughter statute insofar as it relates to deaths caused by the operation of an automobile was repealed or superseded by implication upon the enactment of P.L.1957, Chap. 333, Sec. 2, the pertinent parts of which read as follows:

'Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person, when the death of such person results within one year, shall be guilty of the offense of reckless homicide. * * * Reckless disregard for the safety of others as used in this section shall mean one's conduct is in reckless disregard for the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that his conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to the other.'

The State contends that there is a difference in the elements of manslaughter arising out of the operation of an automobile and reckless homicide, and that the later statute neither repealed by implication nor superseded the earlier statute.

No interpretation of the reckless homicide statute with reference to its effect on the earlier statute has been made by our Court. However, the issue raised in this case has been considered in other jurisdictions having similar statutes, and its resolution has resulted in conflicting opinions by respectable authorities. Before reviewing any of these cases, however, we wish to discuss some well settled principles of statutory construction relating to repeals by implication.

The fundamental rule of statutory construction is the legislative intent. Hunter v. Totman, 146 Me. 259, 265, 80 A.2d 401; State v. Standard Oil Co., 131 Me. 63, 159 A. 116; City of Augusta v. Inhabitants of Town of Mexico, 141 Me. 48, 38 A.2d 822. This rule has been accepted universally and does not need further citation of authority. It applies with equal force to the establishment or denial of a repeal by implication. Sutherland Statutory Construction, (3rd Ed.), Sec. 2012.

It is well settled that a repeal by implication is not favored and will not be upheld in doubtful cases. Inman v. Willinski, 144 Me. 116, 123, 65 A.2d 1, 7 A.L.R.2d 1390; Sutherland Statutory Construction (3rd Ed.), Sec. 2014; 50 Am.Jur., Statutes, Sec. 538; 82 C.J.S. Statutes § 288. It is, however, equally well established that repeals by implication exist when a later statute covers the whole subject matter of an earlier statute, or when a later statute is repugnant to or inconsistent with an earlier statute. This principle has been expressed in appropriate language in many cases in this state. Thus, in State v. Intoxicating Liquors, 119 Me. 1, 11, 109 A. 257, 261, our Court said:

'Repeal by implication exists in two classes of cases: First, when the later statute covers the whole subject-matter of the earlier, especially when additional remedies are imposed; and, second, when the later is repugnant to or inconsistent with the earlier.'

In Inhabitants of Eden v. Inhabitants of Southwest Harbor, 108 Me. 489, 493, 494, 81 A. 1003, 1005, the Court used the following language:

'* * * to effect a repeal by implication, the later statute must be so broad in its scope and so clear and explicit in its terms as to show that it was intended to cover the whole subject-matter, and displace the prior statute, or the two must be so plainly repugnant and inconsistent that they cannot stand together. Goddard v. Boston, 20 Pick. (Mass.) 407; Smith v. Sullivan, 71 Me. 150; Staples v. Peabody, 83 Me. 207, 22 Atl. 113.'

We quote the following statement from the case of Starbird v. Brown, 84 Me. 238, 240, 24 A. 824.

'* * * the precedents are numerous in support of a general rule which is applicable when it is claimed that one statute effects the repeal of another by necessary implication.

'The test is whether a subsequent legislative act is so directly and positively repugnant to the former act, that the two cannot consistently stand together. Is the repugnancy so great that the legislative intent to amend or repeal is evident? Can the new law and the old law be each efficacious in its own sphere? Brown v. City of Lowell, 8 Metc. (Mass.) 172; Bouv.Law Dict.Statute.'

See also Maine Central Institute v. Inhabitants of Palmyra, 139 Me. 304, 308, 309, 30 A.2d 541; Cummings, Appellant, 126 Me. 111, 113, 136 A. 662; Harris' Case, 124 Me. 68, 126 A. 166; Newport v. Maine Cent. Railroad Co., 123 Me. 383, 387, 123 A. 172; In re Opinion of the Justices, 120 Me. 566, 569, 114 A. 865; 50 Am.Jur., Statutes, Sec. 543; 82 C.J.S. Statutes §§ 291, 292.

The Court will if possible give effect to both statutes and will not presume that a repeal was intended. Inhabitants of Eden v. Inhabitants of Southwest Harbor, supra; Newport v. Maine Cent. Railroad Co., supra; In re Opinion of the Justices, supra.

Where a later statute does not cover the entire field of the earlier statute but is inconsistent or repugnant to some of its provisions, a repeal by implication takes place to the extent of the conflict.

'If a criminal act deals with the same subject as a prior act and is inconsistent with and repugnant to the prior act, the latter will be repealed by implication to the extent of the inconsistency.' 50 Am.Jur., page 567. (Emphasis supplied.)

'Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, will, although it contains no repealing clause, govern, control, or prevail, so as to supersede and impliedly repeal the earlier act to the extent of the repugnancy.' 82 C.J.S. Statutes § 291, page 489. (Emphasis supplied.)

Implied amendment or repeal of an earlier by a later statute is founded 'on the reasonable inference that the legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject matter in force at the same time, and that the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law.' Knight v. Aroostook River Railroad, 67 Me. 291, 293.

These general rules applicable to all repealing statutes apply as well to penal statutes. 'The repeal of a penal statute by express declaration, or by implication from later legislation does not present any problems which are peculiar to penal statutes alone, but the general rules applicable to all repealing statutes prevail.' Sutherland Statutory Construction (3rd Ed.), Sec. 2031.

Where a later statute imposes a different penalty, either less or more, for the same or substantially the same offense, the later statute is ordinarily held to repeal the earlier one.

'It is a well settled rule that, where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute imposes a different penalty for the same, or practically the same, offense, the later statute repeals the earlier one, and this is true whether the penalty is increased or diminished.' 82 C.J.S., Statutes § 303 page 520.

See also State v. Davidson, 1957, 78 Idaho 553, 309 P.2d 211; State v. Lewis, 1955, 198 Tenn. 91, 278 S.W.2d 81; State v. Biddle, 1950, 6 Terry 244, 45 Del. 244, 71 A.2d 273; Sutherland Statutory Construction (3rd Ed.), Sec. 2031; 50 Am.Jur., Statutes, Sec. 567.

Before applying these general principles of construction to our own statutes, we deem it desirable to review briefly some of the cases relied upon either by the State or the respondent involving the question of repeals by implication in the enactment of reckless homicide laws.

Among the cases relied upon by the State are the following: State v. Gloyd, 1938, 148 Kan. 706, 84 P.2d 966; State v. Barnett, 1951, 218 S.C. 415, 63 S.E.2d 57; People v. Garman, 1952, 411 Ill. 279, 103 N.E.2d 636. In State v. Barnett the respondent was indicted for involuntary manslaughter. This...