State v. Ring
| Decision Date | 09 November 1989 |
| Docket Number | No. 88-880,88-880 |
| Citation | 447 N.W.2d 908,233 Neb. 720 |
| Parties | STATE of Nebraska, Appellee, v. Gerald Dean RING, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Statutes. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning.
2. Criminal Law: Statutes. Although a penal statute must be strictly construed, such statute should be given a sensible construction with its general terms limited in construction and application to prevent injustice, oppression, or an absurd consequence.
3. Criminal Law: Statutes. While a penal statute is to be construed strictly, it is to be given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.
4. Criminal Law: Words and Phrases. The language "to commit any felony," as it is used in Neb.Rev.Stat. § 28-1205 (Reissue 1985), is synonymous with "for the purpose of committing any felony."
5. Homicide: Motor Vehicles: Drunk Driving: Proof: Proximate Cause. In order to find an accused committed felony motor vehicle homicide in violation of Neb.Rev.Stat. § 28-306 (Reissue 1985) by driving while intoxicated, the State must prove that the accused's intoxication was the proximate cause of the accident and resulting death.
6. Jury Instructions. A trial court retains discretion in the wording of jury instructions.
7. Jury Instructions: Appeal and Error. Jury instructions must be read together, and if the instructions taken as a whole correctly state the law, there is no prejudicial error.
8. Homicide: Motor Vehicles: Negligence. Contributory negligence is not a defense to the charge of motor vehicle homicide.
Timothy W. Shuminsky of Shuminsky, Shuminsky & Molstad, Sioux City, Iowa, for appellant.
Robert M. Spire, Atty. Gen., and Susan M. Ugai, North Platte, for appellee.
Defendant, Gerald Dean Ring, appeals convictions entered pursuant to verdicts of felony motor vehicle homicide, in violation of Neb.Rev.Stat. § 28-306 (Reissue 1985), and of using a motor vehicle as a deadly weapon in the commission of the homicide, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1985). His five assignments of error may be summarized as challenging (1) the district court's failure to dismiss the use of a deadly weapon complaint and (2) the district court's charge to the jury. We affirm the motor vehicle homicide conviction, but reverse and vacate the use of a deadly weapon conviction.
The facts of the case are uncontroverted. Ring stipulated that the subject accident occurred, that he was driving the vehicle which collided with the automobile driven by Darlene Sergott, that Sergott died as a result of the accident, and that he pled guilty to a charge of driving while under the influence of alcoholic beverages at the time of the accident. (No issue being raised as to the effect, if any, of that plea on the prosecution of either of the crimes charged in this case, we do not concern ourselves with that matter.)
Although it was very cold on the day of the accident, the road surface was dry, visibility was unrestricted, and driving conditions were generally good. Possibly because of merging traffic, the Sergott automobile was either stopped or moving at a very low rate of speed when the Ring vehicle, which was moving at a much higher rate of speed, collided with the rear of the Sergott automobile. Ring applied the brakes on his vehicle in an unsuccessful effort to stop before the collision.
The State presented evidence that Ring was intoxicated at the time of the accident and that the consumption of alcohol impairs one's coordination, reaction time, and ability to operate a motor vehicle.
In connection with the first summarized challenge to his convictions, Ring argues that it was not the intent of the Legislature to provide cumulative punishment under § 28-1205 for violations of § 28-306.
Section 28-306 states:
(1) A person who causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide.
(2) Except as provided in subsection (3) of this section, motor vehicle homicide is a Class I misdemeanor.
(3) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 39-669.01, 39-669.03, or 39-669.07, motor vehicle homicide is a Class IV felony.
With respect to the sections referenced by § 28-306(3), Neb.Rev.Stat. § 39-669.01 (Reissue 1988) deals with reckless driving, Neb.Rev.Stat. § 39-669.03 (Reissue 1988) deals with willful reckless driving, and Neb.Rev.Stat. § 39-669.07 (Reissue 1988) deals with driving while under the influence of alcohol.
In addition, § 28-1205 states:
(1) Any person who uses a firearm, knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state, or any person who unlawfully possesses a firearm, knife, brass or iron knuckles, or any other deadly weapon during the commission of any felony which may be prosecuted in a court of this state commits the offense of using firearms to commit a felony.
(2) Use of firearms to commit a felony is a Class III felony.
(3) The crime defined in this section shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed under the provisions of this section shall be consecutive to any other sentence imposed.
Neb.Rev.Stat. § 28-109(7) (Reissue 1985) defines deadly weapon as "any firearm, knife, bludgeon, or other device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury." It is therefore apparent that a vehicle can, under appropriate circumstances, be deemed to be a deadly weapon. See, State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987); State v. Hatwan, 208 Neb. 450, 303 N.W.2d 779 (1981). See, also, State v. Williams, 218 Neb. 57, 352 N.W.2d 576 (1984).
In determining what conduct is proscribed by § 28-1205, we must closely examine the statutory language which reads that "[a]ny person who uses a ... deadly weapon to commit any felony ... commits the offense...." Assuming that Ring's vehicle did constitute a deadly weapon in this case, there can be no question that Ring was using his vehicle when he collided with the Sergott automobile. But was he using the vehicle "to commit a felony"? The answer to this critical question depends upon the definition of the word "to" as it is used in the statute. Within the context of § 28-1205, "to" could be interpreted to mean "for the purpose of" or "with the result of." See, Webster's Third New International Dictionary, Unabridged 2401 (1981); 18 The Oxford English Dictionary 163-64 (2d ed. 1989).
The question, then, is whether Ring can be convicted of the deadly weapon charge if he merely used his vehicle with the result of committing motor vehicle homicide, or must he have instead used his vehicle for the purpose of committing felony motor vehicle homicide. The question is obviously one of statutory interpretation.
In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning. In re Interest of Richter, 226 Neb. 874, 415 N.W.2d 476 (1987). Although a penal statute must be strictly construed, such statute should be given a sensible construction with its general terms limited in construction and application to prevent injustice, oppression, or an absurd consequence. Wounded Shield v. Gunter, 225 Neb. 327, 405 N.W.2d 9 (1987); State v Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980). Furthermore, while a penal statute is to be construed strictly, it is to be given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. In re Interest of Richter, supra; State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).
The apparent purposes behind § 28-1205 are to discourage individuals from employing deadly weapons in order to facilitate or effectuate the commission of felonies and to discourage persons from carrying deadly weapons while they commit felonies. The statute is designed to regulate the manner in which felonies are committed, i.e., with the use or possession of deadly weapons. See Floor Debate, L.B. 38, Judiciary Committee, 85th Leg., 1st Sess. 2679-80, 2682 (Apr. 13, 1977). It cannot reasonably be said that § 28-1205 will dissuade a person from using a deadly weapon to commit an unintentional felony; the two concepts are logically inconsistent. Thus, in order to interpret § 28-1205 in a manner which is consistent with its objective, we hold that the language "to commit any felony," as it is used in that section, is synonymous with "for the purpose of committing any felony."
Our requirement that a conviction under § 28-1205 requires proof that the defendant used a deadly weapon for the purpose of committing a felony comports with our recent analysis in State v. Pettit, 233 Neb. p. 436, 447, 445 N.W.2d 890, 897 (1989), wherein we stated: " 'Strict liability offenses are the exception rather than the rule and will only be found where there is a clear legislative intent not to require any degree of mens rea....' "
In determining whether criminal intent is an element of manslaughter "upon a sudden quarrel," we bear in mind the general rule that "criminal statutes are interpreted as requiring criminal intent, and this is particularly true in situations in which the offense involved is a felony." IUnited States v. O'Brien, 686 F.2d 850, 853 (10th Cir.1982). As the U.S. Supreme Court has observed:
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