State v. Milligan

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtPER CURIAM; CLIFFORD
Citation514 A.2d 1316,104 N.J. 67
Decision Date29 September 1986
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Malcolm D. MILLIGAN, a/k/a Douglas Milligan, Defendant-Respondent.

Page 67

104 N.J. 67
514 A.2d 1316
STATE of New Jersey, Plaintiff-Appellant,
v.
Malcolm D. MILLIGAN, a/k/a Douglas Milligan, Defendant-Respondent.
Supreme Court of New Jersey.
Argued March 18, 1986.
Decided Sept. 29, 1986.

On certification to the Superior Court, Appellate Division, whose opinion is reported at 202 N.J.Super. 336, 495 A.2d 132 (1985).

Steven E. Braun, Asst. Prosecutor, for appellant (Joseph A. Falcone, Passaic Co. Prosecutor, attorney).

Angelo R. Bianchi, Nutley, for respondent (Bianchi & Casale, Nutley, attorneys).

Gilbert G. Miller, Deputy Atty. Gen., for amicus curiae Atty. Gen. (W. Cary Edwards, Atty. Gen., attorney).

PER CURIAM.

The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 202 N.J.Super. 336, 495 A.2d 132 (1985).

Page 68

CLIFFORD, Justice, dissenting.

Relying on the painstaking opinion of the Appellate Division, State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (1985), the Court holds that a criminal homicide in which the death of the victim is caused by reckless driving may be prosecuted only under N.J.S.A. 2C:11-5, the "death by auto" statute. According to both courts below, and now this Court, that proposition compels dismissal of the indictment against defendant for manslaughter in violation of N.J.S.A. 2C:11-4(b)(1). I think not.

I

Because the trial court granted defendant's motion to dismiss the manslaughter indictment, the evidentiary record consists only of the testimony and documents presented to the grand jury. That evidence tends to show that at around 9:30 or 10:00 a.m. on May 22, 1984, defendant began drinking at Murphy's Restaurant in Greenwood Lake, New York, where he had two twelve-ounce bottles of Beck's beer and two shots of Canadian whiskey. He left there sometime before 10:30 a.m. At about 11:30 a.m. he purchased three eight-packs of beer (seven-ounce bottles) at Art and Carol's Tavern in Hewitt, New Jersey, and departed shortly thereafter. We next pick up his trail at around 4:30 p.m., again at Art and Carol's where, after three more bottles of beer and three blackberry brandies, the proprietor endeavored to limit defendant's consumption to beer only. Defendant, apparently not reacting kindly to being refused any more brandy, thereupon threatened to visit violence on the proprietor (who did not take the threat seriously) and to remove his trade to another bistro, the Nineteenth Green. About twenty minutes after having been "cut off," defendant, visibly annoyed, left Art and Carol's. One patron offered to drive defendant home, and another asked defendant to let her drive him home, both of which offers defendant refused.

It was only minutes after his departure from Art and Carol's that defendant was involved in the fatal accident that resulted

Page 69

in this prosecution. According to a witness who was driving behind defendant's truck as it proceeded in a northerly direction on Greenwood Lake Turnpike in West Milford, New Jersey, defendant moved from the right side of the road to the left and back about ten times before striking the victim's southbound automobile in the southbound lanes, in a "no passing" zone. The collision, which occurred at about 5:45 p.m., resulted in the death of the other driver.

The investigating police officer concluded that defendant had been drinking. Two breathalyzer tests, the first at 7:00 p.m. and the second at 7:11 p.m., produced readings of .18 and .19 respectively. A blood test subsequently administered at a local hospital yielded a reading of .203. According[514 A.2d 1317] to the investigating officer, who was offered to the grand jury as an expert in "drinking and driving," defendant had to have consumed about 12.8 ounces of 86-proof alcohol to have produced the foregoing readings. The officer concluded that defendant was under the influence of alcohol at the time of the accident and could not have had the capacity to operate his truck safely.

II

The New Jersey Code of Criminal Justice (Code) declares that when criminal homicide is committed recklessly, it constitutes the second-degree crime of manslaughter. N.J.S.A. 2C:11-4(b)(1), -4(c). At the time of the offense with which this appeal is concerned, death by auto--a criminal homicide caused by driving a vehicle recklessly--was a fourth-degree offense. N.J.S.A. 2C:11-5(a), (b). (It has since been elevated to an offense of the third degree, L.1984, c. 212.) The word "recklessly," which appears in both the "reckless manslaughter" and "death by auto" statutes, is defined in N.J.S.A. 2C:2-2(b)(3) as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe

Page 70

in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.

The Appellate Division concluded that "the elements of reckless manslaughter and death by auto are therefore really identical where the instrumentality is a motor vehicle," 202 N.J.Super. at 339, 495 A.2d 132, and that the legislature intended death by auto to be a specific offense rather than a general one under the manslaughter statute, id. at 340, 495 A.2d 132. After a careful review of the pertinent cases that discuss the circumstances in which a specific statute (here, the "death by auto" statute) supersedes a general one (the manslaughter provision) that overlaps the same conduct, id. at 342-46, 495 A.2d 132, the court below concluded that in those instances in which, as here, the instrumentality of death is a motor vehicle, the legislature intended to preclude prosecutions under the manslaughter statute and to limit the State to a death-by-auto prosecution. The Appellate Division therefore affirmed the dismissal of the manslaughter indictment in this case "without prejudice to the State to seek an indictment under N.J.S.A. 2C:11-5." Id. at 352.

I see it a little differently. A statute that covers the same subject matter as is encompassed by earlier legislation does not automatically effect an implied pro tanto repeal of the earlier law. See State v. DesMarets, 92 N.J. 62, 76, 455 A.2d 1074 (1983); State v. Gledhill, 67 N.J. 565, 342 A.2d 161 (1975); State v. States, 44 N.J. 285, 208 A.2d 633 (1965); N. Singer, 1A Sutherland Statutory Construction § 23.10 (Sands 4th ed. 1985) (hereinafter Sutherland ). On the contrary, there is a "strong presumption" against such an implied repeal, City of Camden v. Byrne, 82 N.J. 133, 154, 411 A.2d 462 (1980), and that presumption will be overcome only by proof beyond a reasonable doubt that the legislature intended a negation of the prior law. Swede v. City of Clifton, 22 N.J. 303, 317, 125 A.2d 865 (1956). As this Court said in State v. States, supra,

[t]he mere fact that two statutes overlap in prohibiting the same act does not mean that the later law automatically repeals the earlier one pro tanto, or that an alleged offender can be prosecuted only for the more serious offense. Repeals by implication are not favored and it is a cardinal rule of statutory construction that both laws should be given effect if reasonably possible. It is

Page 71

not sufficient merely to show that a subsequent[514 A.2d 1318] act covers some of the cases encompassed by the earlier one. The legislative intention to repeal must be manifest; the language must admit of no other reasonable interpretation. [44 N.J. at 291, 208 A.2d 633].

Thus, the intent of the legislature to effect an implied repealer of a prior statute "will not arise by implication unless the subsequent statute is plainly repugnant to the former and is designed to be a complete substitute for the former." State v. Drake, 79 N.J.Super. 458, 461-62, 191 A.2d 802 (App.Div.1963). Two statutes are said to be "repugnant" only if it is "impossible to give the two concurrent operative effect." State v. Gledhill, supra, 67 N.J. at 580, 342 A.2d 161. In doubtful cases, the later statute "is strictly construed to effectuate its consistent operation" with prior law, Sutherland, supra, § 23.10 (emphasis in original), and our duty is to reconcile the two enactments to the extent possible.

I do not view the enactments before us--the "death by auto" statute and the manslaughter statute--as being so plainly "repugnant" to each other as to compel the conclusion beyond a reasonable doubt that the legislature intended the "death by auto" statute to work a repeal of the manslaughter statute in vehicular homicide cases. The legislative history would strongly suggest the opposite conclusion. The fact that the "opposite conclusion" is not reached by the majority of this Court, however, emboldens me to make the somewhat presumptuous observation that the legislature might wish to review the bidding to make its intention unmistakable to those who do not share my view of the matter.

As I read the legislative history the original "death by auto" statute,L.1935, c. 282, was prompted by the fact that under the common law all recklessly-caused homicides were punishable as manslaughter, see II Final Report of the New Jersey Criminal Law Revision Commission 158 (1971) (Code Commentary); cf. State v. Blaine, 104 N.J.L. 325, 327, 140 A. 566 (E. & A.1927) (whether killing is manslaughter per se when death of person is attributable to "unlawful act" of driving while intoxicated is "not so clear"), and therefore grand juries were reluctant to indict and

...

To continue reading

Request your trial
11 practice notes
  • State v. Bogus
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 4, 1988
    ...which defendant now challenges on this appeal. Relying upon State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (App.Div.1985), aff'd o.b. 104 N.J. 67, 514 A.2d 1316 (1986), defendant argues that "death by auto is the exclusive charge when a driver's reckless conduct in operating an automob......
  • State v. Jamerson
    • United States
    • United States State Supreme Court (New Jersey)
    • March 25, 1998
    ...and the death by auto statutes was identical: recklessness. State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (App.Div.1985), aff'd, 104 N.J. 67, 514 A.2d 1316 (1986). A conviction on only one of those offenses was permitted. Subsequent to the Supreme Court's decision in Milligan, (in whi......
  • State v. Scher
    • United States
    • Superior Court of New Jersey
    • December 23, 1994
    ...here. Suffice it to say that after our opinion was rendered in State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (App.Div.1985), aff'd, 104 N.J. 67, 514 A.2d 1316 (1986), holding that a person could not be charged with both reckless manslaughter and death by auto, the Legislature abrogate......
  • State v. Pindale, No. A-1350-89T1
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 28, 1991
    ...be prosecuted as manslaughter under N.J.S.A. 2C:11-4b(1). State v. Milligan, 202 N.J.Super. 336, 346, 495 A.2d 132 (App.Div.1985), aff'd, 104 N.J. 67, 514 A.2d 1316 (1986). In response to the Milligan decision, the Legislature amended the death by auto statute, N.J.S.A. 2C:11-5, by the Laws......
  • Request a trial to view additional results
12 cases
  • State v. Bogus
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 4, 1988
    ...which defendant now challenges on this appeal. Relying upon State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (App.Div.1985), aff'd o.b. 104 N.J. 67, 514 A.2d 1316 (1986), defendant argues that "death by auto is the exclusive charge when a driver's reckless conduct in operating an automob......
  • State v. Jamerson
    • United States
    • United States State Supreme Court (New Jersey)
    • March 25, 1998
    ...and the death by auto statutes was identical: recklessness. State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (App.Div.1985), aff'd, 104 N.J. 67, 514 A.2d 1316 (1986). A conviction on only one of those offenses was permitted. Subsequent to the Supreme Court's decision in Milligan, (in whi......
  • State v. Scher
    • United States
    • Superior Court of New Jersey
    • December 23, 1994
    ...here. Suffice it to say that after our opinion was rendered in State v. Milligan, 202 N.J.Super. 336, 495 A.2d 132 (App.Div.1985), aff'd, 104 N.J. 67, 514 A.2d 1316 (1986), holding that a person could not be charged with both reckless manslaughter and death by auto, the Legislature abrogate......
  • State v. Hahn, DOCKET NO. A-4755-18
    • United States
    • New Jersey Superior Court – Appellate Division
    • August 17, 2022
    ...charge and qualitatively less than the recklessness required to support an aggravated manslaughter case.’ " (quoting State v. Milligan, 104 N.J. 67, 73, 514 A.2d 1316 (1986) (Clifford, J., dissenting)). See also Jiminez, 257 N.J. Super. at 583, 608 A.2d 996 (noting trial judges were "requir......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT