State v. Morf, 1084

Decision Date03 April 1956
Docket NumberNo. 1084,1084
Citation295 P.2d 842,80 Ariz. 220
PartiesSTATE of Arizona, Plaintiff, v. Paul Andrew MORF, Defendant.
CourtArizona Supreme Court

Robert Morrison, Atty. Gen., Wm. P. Mahoney, Jr., County Atty., and Thomas Tang, Deputy County Atty., Phoenix, for the State.

James S. Riggs, Lewis, Roca, Scoville & Beauchamp and Joseph E. McGarry, Phoenix, for defendant.

UDALL, Justice.

After a preliminary hearing before a magistrate, defendant Paul Andrew Morf was held to answer to the superior court upon a felony charge, to wit: manslaughter. Thereafter the county attorney of Maricopa County, by an information, formally charged defendant with the crime of involuntary manslaughter, a felony, under section 43-2904, A.C.A.1939. The homicide allegedly arose out of defendant's wilful, reckless and negligent operation of a motor vehicle. In response to a bill of particulars the State set forth that defendant's specific acts of negligence were (1) that he 'failed to heed and obey an electric traffic control signal' and (2) that he 'exceeded the legal speed limit * * *'. Defendant also filed a motion to quash the information, which motion was orally argued, but before a ruling thereon the court considered there was a question of law 'so important and doubtful as to require the decision of the appellate court'. Under the provisions of Rule 346, Rules Crim.Proc.1956, and with the consent of the defendant, the trial court stayed further proceedings and has now certified to us the following narrow question for decision, viz.:

'Does the enactment of Chapter 3, Section 53, Laws of Arizona, 1950 (1st. Sp.Sess.), Section 66-155, Arizona Code, as amended, (negligent homicide) operate as a repeal in part of Section 43-2904, Arizona Code 1939 insofar as that section makes the operation of a motor vehicle without due caution and circumspection proximately causing death, involuntary manslaughter, a felony?'

The query has substance and is a proper one for certification under our rules. Respectable authority from other jurisdictions divides on the question. It is a matter of first impression with us.

Section 43-2904, A.C.A.1939 (now appearing as Secs. 13-455 and 13-456, A.R.S.1956), our manslaughter statute, violation of which is a felony, reads as follows:

'Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: * * * involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection.' (Emphasis supplied.)

Chapter 3, Section 53, Laws 1950, 1st S.S. (now appearing as Sec. 28-691, A.R.S.1956), is our misdemeanor negligent homicide statute, viz.:

'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.' (Emphasis supplied.)

Obviously a statute pertaining only to death by operation of motor vehicles does not repeal in its entirety a general statute relating to homicides committed by other means. The narrow issue is whether the misdemeanor statute impliedly repeals the application of the felony statute, supra, to instances of homicide wherein the instrumentality of death is a motor vehicle operated 'without due caution and circumspection.' Repeal of any other criminal situation arising under the manslaughter statute is not here drawn in question. Cf. State v. Cantrell, 64 Wyo. 132, 186 P.2d 539; State v. Ponce, 59 Ariz. 158, 124 P.2d 543.

The rule is well settled in Arizona that repeals by implication are not favored and will not be indulged in if there is any other reasonable construction. Arizona Corp. Comm'n v. Catalina Foothills Estates, 78 Ariz. 245, 278 P.2d 427, 428; 82 C.J.S., Statutes, § 288. However, it is equally well established that if upon examination of the statutes a repugnancy or inconsistency between the provisions of the earlier and the later law is found, i. e. if, even granting the absence of express legislative intent to repeal, it appears the legislature could not have intended the two statutes to be contemporaneously operative, then it will be implied the legislature must have intended to repeal the earlier enactment by the later law. 82 C.J.S., Statutes, § 286 et seq. The fundamental test in all cases is of course the intent of the legislature.

In the case of Olson v. State, 36 Ariz. 294, 285 P. 282, we held that the legislature by enactment of the 1927 Highway Code containing a provision making failure to stop in case of accident a misdemeanor had impliedly repealed the former statutory felony of leaving the scene of an accident. The analogy of the Olson case to the case at bar is close. In the instant case the legislature has enacted a comprehensive law covering the field relative to the use of the highways by motor vehicles. If within this law it has provided criminal sanction for an act punishable previously under a general penal statute and it appears that the elements of the crimes are alike-i. e. the offenses are substantially the same and not merely cumulative or auxiliary-then the reasonable conclusion is that the legislative intent was that the last and specific expression on the subject shall be the law, and the earlier statute shall no longer be applicable. 82 C.J.S. Statutes, § 303.

With these fundamentals in mind, we first examine these two laws as hitherto applied in this State as well as in other jurisdictions. While we have had no occasion to specifically define-as have some other states-the phrase 'without due caution and circumspection' found in the felony statute, supra, yet the consensus of opinion seems to be that it is the equivalent of 'criminal negligence'. See, People v. Penny, 44 Cal.2d 861, 285 P.2d 926, 931. It is true that the phrase 'criminal negligence' has various shades of meaning. In 40 C.J.S., Homicide, § 62, this statement appears:

'While the kind of negligence required to impose criminal liability has been described in differing terms, it is almost uniformly held that it must be of a higher degree than is required to establish negligence on a mere civil issue.'

Practically all of the cases agree that 'criminal negligence' as an element of crime goes beyond mere failure to exercise ordinary care and precaution, or mere inadvertence or misadventure; however there is no uniformity in the decisions as just how to describe the precise degree of negligence that must exist to constitute criminal negligence as an element of crime. See, 10 Words & Phrases, Criminal Negligence, at page 520 et seq. The decisions of this court in the cases of Gutierrez v. State, 44 Ariz. 114, 34 P.2d 395, and Steffani v. State, 45 Ariz. 210, 42 P.2d 615, make it clear that in order to convict in such cases, criminal negligence must be shown, i. e. negligence of a more gross and reckless nature than is required in civil cases. With the knowledge that such was the law in Arizona the legislature has now said that one who causes death by driving 'in reckless disregard of the safety of others' is guilty of the high misdemeanor of negligent homicide. State v. Gordon, 79 Ariz. 184, 285 P.2d 758, 759. If this is the same type of criminal negligence as that previously required for conviction of the felony, then the laws are conflicting. If, then, repugnancy or inconsistency exists between these two laws, we can only conclude that a repeal by implication was intended by adoption of the later law.

The State takes the position that the negligent homicide statute is of a different variety or class of crime than the earlier felony statute, and cites several cases wherein other States on the basis of the peculiar wording and interpretation of their statutes have so held. In some of these cases it appears the court concerned itself more with the general background of the crimes and decided only that since one was of common law origin and the other of modern birth there could be no repeal since no inconsistency. Such an argument is no answer to the problem; both are legislative enactments, and must be tested by the rules of statutory construction above enumerated. The origins of each may be of aid in determining legislative intent but should not obscure the issue of repeal.

Citations to California cases lend no authority to the state's...

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