State v. Vollmer

• Court: West Virginia Supreme Court
• Writing for the Court: MILLER
• Citation: State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (W. Va. 1979)
• Decision Date: 13 November 1979
• Docket Number: No. CC909,CC909
• Parties: STATE of West Virginia v. Mark S. VOLLMER.

Page 837

259 S.E.2d 837

163 W.Va. 711

STATE of West Virginia v. Mark S. VOLLMER.

No. CC909.

Supreme Court of Appeals of West Virginia.

Nov. 13, 1979.

Syllabus by the Court

1. An involuntary manslaughter charge arising from a death resulting from the operation of a motor vehicle requires something more than an act of ordinary negligence or the violation of a motor vehicle statute to sustain the conviction.

2. Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving of "(a) vehicle in reckless disregard of the safety of others," and this means that more than ordinary negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945).

3. Since our involuntary manslaughter crime carries the same elements and the same penalty as our negligent homicide statute in regard to a homicide arising from the operation of a motor vehicle, the State may charge the defendant with either crime.

Chauncey H. Browning, Atty. Gen., Michael G. Clagett, Asst. Atty. Gen., Charleston, for plaintiff.

McCamic & McCamic, Jolyon W. McCamic, Wheeling, for defendant.

MILLER, Justice:

This case presents the certified question ¹ of whether the State, in charging an offense arising out of an automobile accident resulting in a death, must proceed under the negligent homicide statute, W.Va.Code, 17C-5-1, ² or whether it may charge involuntary manslaughter. We conclude that the State may elect either avenue.

The defendant argues that only W.Va.Code, 17C-5-1, applies, since it is a specific enactment covering the offense, and since the statutory crime of negligent homicide contains different elements of proof than does the crime of involuntary manslaughter. In this regard, the defendant cites Syllabus Point 3 of State v. Lough, 143 W.Va. 838, 105 S.E.2d 538 (1958):

"A verdict of guilty of involuntary manslaughter will not be disturbed on writ of error where the evidence shows beyond a reasonable doubt that the unintentional death of deceased was caused by accused while engaged in an unlawful act or the performance of a lawful act in an unlawful manner."

The defendant argues that under Lough, he could be convicted of involuntary manslaughter if the State only proved that he had violated a motor vehicle statute (an unlawful act) resulting in a death, even though the violation of the statute occurred through simple negligence without intent to cause death or bodily injury. On the other hand, the argument runs, such facts would not be sufficient to constitute the statutory crime of negligent homicide, which requires proof that the vehicle was driven "in reckless disregard of the safety of others" an obviously higher standard than mere negligence.

Lough's syllabus must be read in light of its opinion, which relied extensively on State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945). Lawson contained the following syllabus points:

"3. The giving of an instruction, at the instance of the State, which, in effect, tells the jury that a defendant may be found guilty of involuntary manslaughter for a death growing out of an automobile collision on a public highway, upon a showing, beyond all reasonable doubt, that the defendant was driving his automobile on his left side of the highway at the time of the collision, and that such driving was the sole and proximate cause of the collision, and that the death of another person resulted therefrom, is error.

"4. To the extent only that they tend to hold that the crime of involuntary manslaughter may be committed in the performance of a lawful act by simple negligence, the cases of State v. Clifford, 59 W.Va. 1, 52 S.E. 981, and State v. Whitt, 96 W.Va. 268, 122 S.E. 742, are disapproved."

A reading of Lawson demonstrates the confusion that attends the phrase "an unlawful act or the performance of a lawful act in an unlawful manner." ³ The genesis of the confusion is the word "unlawful."

In this context, LaFave and Scott in Criminal Law § 79 (1972), at 594, use the term "unlawful-act involuntary manslaughter." After an extensive discussion of its origin and development in the common law, they conclude:

"Most jurisdictions punish, as involuntary manslaughter, death-causing conduct in the commission or attempted commission of an unlawful act (generally a misdemeanor), especially if that act is Malum in se or (what tends to be the same thing) if that act involves a danger of death or serious bodily injury to another person or to others. If the unlawful act is Malum prohibitum the defendant generally is held not guilty of manslaughter unless the death is the foreseeable consequence of his conduct in committing the act. . . . " ⁴

Much the same conclusion can be found in 40 Am.Jur.2d Homicide § 77:

"The general principle that an unintentional homicide is a criminal offense where occasioned by a person engaged, at the time, in an unlawful act, is subject to the important qualification that if the act in question is not inherently dangerous and there is no negligence in its performance, there is no criminal liability unless the act was malum in se and not merely malum prohibitum, although in some cases the courts have not observed this distinction.

"An offense malum in se is properly defined as one which is naturally evil, as adjudged by the sense of a civilized community. An act which is malum prohibitum is wrong only because made so by statute. . . . "

The "unlawful" problem in involuntary manslaughter is more attenuated in motor vehicle homicides because the violation of the traffic regulation statutes contained in W.Va.Code, 17C-1-1, et seq., is a misdemeanor under W.Va.Code, 17C-18-1, unless a higher penalty is specifically provided. See State v. Jeffers, W.Va., 251 S.E.2d 227, 229 (1979). Consequently, the operation of a motor vehicle in violation of any of these statutes is technically an unlawful act, but it must be remembered that, in the main, these motor vehicle statutes involve acts which are Mala prohibita, and not acts which are, Per se, dangerous to life and limb. ⁵

Our cases involving an involuntary manslaughter charge arising from a death resulting from the operation of a motor vehicle follow the general law and require something more than an act of ordinary negligence or the violation of a motor vehicle statute to sustain the conviction. This is manifested by the following statement from Lawson :

"This rule (that more than simple negligence is required) would do nothing more than require the State to show that the act, or the manner of the performance of the act, for which conviction is sought is unlawful and culpable and something more than the simple negligence, so common in everyday life, in which there is no claim that anyone has been guilty of wrong-doing." (128 W.Va. at 148, 36 S.E.2d at 32)

Lawson placed substantial reliance on Virginia cases dealing with involuntary manslaughter charges in motor vehicle accidents resulting in death. In King v. Commonwealth, 217 Va. 601, 606-607, 231 S.E.2d 312, 316 (1977), the court discussed its standard at some length:

"Inadvertent acts of negligence without recklessness, while giving rise to civil liability, will not suffice to impose criminal responsibility. Thus, we have held that mere failure to keep a proper lookout is insufficient to support a conviction of involuntary manslaughter. Lewis v. Commonwealth, supra, 211 Va. (684) at 687-88, 179 S.E.2d (506) at 509 (1971). Intentional, willful, and wanton violation of safety statutes, resulting in death, however, will justify conviction of involuntary manslaughter. See State v. Cope, 204 N.C. 28, 167 S.E. 456 (1933). The degree of negligence must be more than ordinary negligence. Smith v. Commonwealth, 213 Va. 781, 784, 195 S.E.2d 845, 847-48 (1973); Fadely v. Commonwealth, 208 Va. 198, 202, 156 S.E.2d 773, 776 (1967); Zirkle v. Commonwealth, 189 Va. 862, 868, 55 S.E.2d 24, 28 (1949); Bell v. Commonwealth, supra, 170 Va. (597) at 615, 195 S.E. (675) at 681.

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"We conclude that involuntary manslaughter arising from the operation of a motor vehicle should be predicated solely upon criminal negligence proximately causing death. Accordingly, we define involuntary manslaughter in the operation of a motor vehicle as the accidental killing which, although unintended, is the proximate result of negligence so gross, wanton, and culpable as to show a reckless disregard of human life."

In its most recent involuntary manslaughter case involving a motor vehicle, Jenkins v. Commonwealth, 255 S.E.2d 504 (Va.1979), the court followed King in holding that the standard is "negligence so gross, wanton, and culpable as to show a reckless disregard of human life." (255 S.E.2d at 506)

Thus, it can be seen that the Virginia standard for involuntary manslaughter does not differ materially from our own construction in Lawson. Nor does this rule seem different from our statutory negligent homicide standard of "reckless disregard of the safety of others." W.Va.Code, 17C-5-1(a). ⁶

This Court has not had occasion to discuss our statutory crime of negligent homicide. The crime of negligent homicide in the operation of a motor vehicle varies among the states by virtue of the particular wording of their statutes, and two general categories emerge. The first consists of those statutes where simple negligence is stated to be sufficient to substantiate the crime. ⁷ The courts in those jurisdictions generally hold that death resulting from a negligent act in operating a motor vehicle is sufficient to constitute the crime. Annot., 20 A.L.R.3d 473 (1968). The second category consists of those statutes, like ours, which define the crime so as to require more than simple negligence. Annot., 52 A.L.R.2d 1337 (1957). ⁸

We conclude that the plain wording of our negligent homicide statute, which requires the driving of "(a) vehicle in...