State v. Sodergren, 83-110
| Decision Date | 26 June 1984 |
| Docket Number | No. 83-110,83-110 |
| Citation | 686 P.2d 521 |
| Parties | The STATE of Wyoming, Petitioner, VSv. Barry SODERGREN, Respondent. |
| Court | Wyoming Supreme Court |
A.G. McClintock, Atty.Gen., Allen C. Johnson (argued), and John W. Renneisen, Sr. Asst. Attys. Gen., and Michael L. Hubbard, Asst. Atty. Gen., for petitioner.
Harry E. Leimback (argued), and Susan K. Overeem, Casper, for respondent; Gerald M. Gallivan (argued), Laramie, amicus curiae.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
This matter is before us on a Writ of Certiorari. The issue presented by Petitioner is:
"Did the trial court err in dismissing the information for lack of jurisdiction maintaining that the respondent could not be prosecuted for involuntary manslaughter in a vehicular homicide not involving alcohol?"
Respondent adds as an issue:
"Does a writ of certiorari lie to review the district court decision dismissing the charges based on a lack of subject matter jurisdiction?"
We answer both questions in the affirmative, but set some perimeters with reference to the second one, remanding the case for additional proceedings.
Barry Sodergren (Respondent) was charged with two counts of involuntary manslaughter for the August 23, 1982 vehicular deaths of Mia L. Olsen and Evelyn Olsen. After being bound over to the district court, Respondent filed a motion to dismiss, based on an alleged lack of subject matter jurisdiction in the district court. The district court granted the motion and dismissed the case, explaining in a decision letter that the vehicular homicide statute (§ 31-5-1117, W.S.1977, infra) and the involuntary manslaughter statute (§ 6-4-107, W.S.1977, infra) prescribe substantially the same conduct with different penalties (one being a felony and the other a misdemeanor); that they are repugnant and inconsistent; and that a later specific statute controls over a general statute. Therefore, the court reasoned, the Respondent must be prosecuted under the vehicular homicide statute and not under the manslaughter statute, and thus the district This court entered its Order Denying Application to File Bill of Exceptions on June 8, 1983, and its Order Granting Certiorari on June 28, 1983.
court did not have jurisdiction to try the case. 1
We must address two aspects of this issue: (1) the relationship between the manslaughter statute and the vehicular homicide statute, and (2) the constitutionality of the vehicular homicide statute.
The confusion over the relationship between the two statutes has gone on for many years. In State v. Cantrell, 64 Wyo. 132, 186 P.2d 539 (1947), a vehicular death involving alcohol, we said that the negligent homicide statute did not impliedly repeal the involuntary manslaughter statute. However, starting in 1977, in a line of cases from Thomas v. State, Wyo., 562 P.2d 1287 (1977), through Bartlett v. State, Wyo., 569 P.2d 1235 (1977), and then to Lopez v. State, Wyo., 586 P.2d 157 (1978), we finally held at page 160:
* * * "
7A Am.Jur.2d Automobiles and Highway Traffic § 340, p. 524, states, with reference to vehicular homicide statutes:
" * * * They are the product of comparatively recent legislation prompted by the frequency of tragedies on the highways and the difficulty of obtaining convictions of motorists under the general statutes on homicides, juries being loath to attach the onus of 'manslaughter' to those causing the death of a person through the operation of a motor vehicle."
The "carnage on the highways" can lead to speculation as to whether or not a proper and reasonable classification was invoked when a distinction was made relative to involuntary homicide on the basis of the instrument used to cause the death, i.e., a motor vehicle as distinguished from a club, poison, knife, gun, etc., with a lesser penalty attaching to the use of one of the instruments. 2
In 1977, § 31-5-1115, W.S.1977, provided:
The manslaughter statute, § 6-4-107, W.S.1977, provided:
"Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty (20) years."
As a result of our suggestion that the legislature clarify its intent in this area, it responded in 1979 with amendments to Section 6-4-107, W.S.1977 (Cum.Supp.1979):
both statutes, causing them to read as follows:
"Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, except as provided in W.S. 31-5-1117, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty (20) years."
Section 31-5-1117(a), (b), W.S.1977 (CumSupp.1979):
In 1982 the legislature added aggravated vehicular homicide to § 31-5-1117 so that it read as follows at the time Barry Sodergren was charged with involuntary manslaughter:
"(a) Whoever, while driving any vehicle under the influence of either intoxicating liquor or a controlled substance, or a combination of both, to a degree which renders him incapable of safely driving a vehicle, causes the death of another person shall be guilty of aggravated homicide by vehicle, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not more than twenty (20) years.
"(b) Whoever, except when the violation of law involves culpable neglect or criminal carelessness, unlawfully and unintentionally, but with a conscious disregard of the safety of others, causes the death of another person while engaged in the violation of any state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic, except those laws or ordinances relating to conduct set forth in subsection (a) of this section, is guilty of homicide by vehicle when the violation is the proximate cause of death and upon conviction thereof, shall be fined not more than two thousand ($2,000.00) dollars or imprisoned in the county jail for not more than one (1) year, or both." Section 31-5-1117(a), (b), W.S.1977 (Cum.Supp.1982).
Petitioner, the State of Wyoming, argues that the 1979 and 1982 amendments were passed to change the law as it existed after Lopez, supra, (i.e., to change the holding that all vehicular deaths, short of murder and voluntary manslaughter were to be charged as vehicular homicide and not as involuntary manslaughter). Petitioner argues that it is presumed that when an amendment is enacted to an existing statute that some change in the existing state of the law was intended and that the court should endeavor to make such amendment effective, Brown v. State, Wyo., 590 P.2d 1312, 1314 (1979); that it is not reasonable that the legislature would enact a law to declare what is already the law, DeHerrera v. Herrera, Wyo., 565 P.2d 479, 483 (1977); and that amendment of the statutes presumes an intention to change the existing law and the courts should endeavor to give some effect to the amendment, Stolldorf v. Stolldorf, Wyo., 384 P.2d 969, 972 (1963).
Respondent argues that the amendments were passed to bring the statutes into line with the case law, but if this was not the intent, then the legislature failed to accomplish any other result, there being no discernible distinction between the standards of "reckless disregard of the safety of others" 3 and "conscious disregard of the safety This court had held earlier, in State v. Thomas, supra, that there was no operative distinction between the standards of "culpable neglect or criminal carelessness" 5 and "reckless disregard of the safety of others." In Thomas, supra, 562 P.2d at 1289, the question was:
of others" 4, which were the substantive changes between the 1977 vehicular homicide statute on the one hand and the 1979 and 1982 vehicular homicide statutes on the other.
"Did § 31-232(a) [vehicular homicide] and earlier related enactments impliedly repeal that part of § 6-58 [manslaughter], which states, 'or by any culpable neglect or criminal carelessness,' insofar as it affects deaths resulting from the operation of a motor vehicle?"
In reaching the holding of that case, we said that the conduct which is made criminal by the challenged portion of § 6-58 [manslaughter]...
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