Thomas v. State

• Decision Date: 18 April 1977
• Docket Number: No. 4641,4641
• Citation: 562 P.2d 1287
• Parties: Lewis Wilson THOMAS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1287

562 P.2d 1287

Lewis Wilson THOMAS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4641.

Supreme Court of Wyoming.

April 18, 1977.

Donald L. Painter, of Burk & Painter, P. C., Casper, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A Stack, Deputy Atty. Gen., and Frank R. Chapman, Law Clerk, Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Lewis Wilson Thomas, appellant herein, was convicted in the District Court of Natrona County on three counts of manslaughter arising from an automobile accident which occurred on July 13, 1974, resulting in the deaths of Lloyd Earl Eldridge III, Pamela Raye Byers, and Laurie Kay Freel. This accident happened about two and one-half miles south of Casper on the Casper Mountain highway. At the time of the accident Thomas was driving the car of Connie Osborn and had Debra Ambler, Laurie Freel, and Larry Ortega as passengers. At the point of the accident there was a slight curve to the left and he lost control of the car, which skidded into the left lane where it hit a motorcycle being driven by Eldridge with Pamela Byers as a passenger. Both occupants of the motorcycle were killed, and Laurie Freel, a passenger in the car drive by appellant, died as a result of the accident. Pertinent material facts will be set out in more detail when they become relevant and necessary to the disposal of appellant's various contentions.

Appellant raises six asserted errors, which will appear in this opinion in the order in which such contentions are discussed. The first contention is as follows:

'SECTION 6-58, supra (W.S.1957), ENACTED IN 1890, WAS REPEALED BY IMPLICATION WITH ENACTMENT OF § 31-232(a) (W.S.1957, C.1967), ENACTED IN 1939, ¹ INSOFAR AS § 6-58, supra, FORMERLY RELATED TO VEHICULAR HOMICIDES UNDER CIRCUMSTANCES INVOLVING 'CULPABLE NEGLECT OR CRIMINAL CARELESSNESS'.'

The relationship and application of our involuntary manslaughter statute and the so- called negligent homicide law applying to deaths occurring as the result of the operation of automobiles have been obscure and troublesome areas for lawyers and the courts for many years.

Under a different statutory scheme, so far as deaths occasioned by the operation of motor vehicles are concerned, this court called attention to the then incongruity in this area in State v. McComb, 33 Wyo. 346, 239 P. 526, 41 A.L.R. 717; and the court in that case, not deeming it properly presented, did not pass upon the question of whether the prosecution should have been under the statute which applied solely to deaths occasioned from the operation of automobiles, but 'deemed it advisable to call attention to the seeming incongruities under our law,' 239 P. at 530. In 1947, and under a statutory scheme identical to the one presently in effect, this question arose again in State v. Cantrell, 64 Wyo. 132, 186 P.2d 539, which involved an attack upon a portion of § 6-58, which will be later discussed. The majority opinion demonstrates the questions and difficulties which arise therefrom; and Justice Blume, with his usual acuity and legal foresight, in a concurrence expressed his concern with the difficulties which were experienced in determining under which statute a defendant should be charged, and thought this of enough importance to suggest careful legislative consideration of these statutes to establish some 'rule of guidance for the courts,' 186 P.2d at 548. Nothing was done to implement this suggestion. Again, in 1956, in State v. Wilson, 76 Wyo. 297, 301 P.2d 1056, 1065, this court noted the confusion arising within this statutory arrangement. We can only note that we still have the statutory scheme to which these criticisms were directed and which has been in no manner changed. The statutes from which this question arises are 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, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years.' Section 6-58, W.S.1957.

'When the death of any person ensues within 1 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.' Section 31-232(a), W.S.1957, C.1967.

Our inquiry is confined to the question, Did § 31-232(a) and earlier related enactments impliedly repeal that part of § 6-58, which states, 'or by any culpable neglect or criminal carelessness,' insofar as it affects deaths resulting from the operation of a motor vehicle?

Earlier, in Cantrell, supra, it was clearly decided that an implied repeal of the manslaughter statute was not effected insofar as the commission of an unlawful act was concerned, 186 P.2d at 542, but the court definitely refused to answer the query here presented, leaving it for another day. Mr. Justice Blume expressed this dilemma well when he said in Cantrell, supra, 186 P.2d at 548, 'It is impossible to determine definitely as to whether or not the legislature when it passed these special statutes intended that they should govern in all cases when a death occurs as the result of improper driving of an automobile.'

The indictments and information herein all charge the commission of an unlawful act, i. e., driving on the wrong side of the highway and culpable neglect and criminal carelessness. However, the commission of an unlawful act is not before us because the trial judge submitted this charge to the jury:

'Before you can convict the Defendant on the charge of involuntary manslaughter you must find that he acted with culpable neglect or criminal carelessness. Those terms are synonymous and mean the failure to exercise any care, or the exercise of so little care that you are justified in believing that the person whose conduct is involved was wholly indifferent to the consequences of his conduct and to the welfare of others.'

From this instruction, which is the law of the case, it is clear that the only basis of this conviction is reliance upon the last portion of § 6-58 as above set out. As noticed in State v. Wilson, supra, 301 P.2d at 1058, there is no other state which we have been able to find where the crime of involuntary manslaughter is defined as it is in our statute. If follows we can find no direct authority from other jurisdictions which help in defining the application of this statute and the conduct to which it is directed. However, there is authority from this court which helps us to determine what course of conduct this latter part of the statute was intended to cover.

Repeals by implication are not favored, State v. Cantrell, supra, 186 P.2d at 543; but this court has not hesitated to apply this in a proper case, Longacre v. State, Wyo., 448 P.2d 832, 834; Blount v. City of Laramie, Wyo., 510 P.2d 294, 296; Tucker v. State ex rel. Snow, 35 Wyo. 430, 251 P. 460, 465. If the statutes cannot stand together and if they are repugnant by virtue of relating to the same subject and are directed at a distinct offense with the same object, the earlier cannot stand, State v. Cantrell, supra. In Haines v. Terriory, 3 Wyo. 167, 13 P. 8, 11, the court recognized the rule that a later specific statute controls over a general statute.

In making disposal of this it is necessary to determine what conduct is made criminal by the challenged portion of § 6-58, and under these words, 'culpable neglect' and 'criminal carelessness,' which are synonymous, State v. McComb, supra, 239 P. at 528; State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 215.

This court, in State v. McComb, supra, 239 P. at 529, in discussing the application of this phrase to a prosecution for a death caused by the operation of a motor vehicle, cited with approval authorities which include as an element of such offense the following:

"* * * the carelessness must have been gross implying an indifference to consequences; and the term 'gross negligence' means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent." (Emphasis supplied.) (People v. Barnes, 182 Mich. 179, 148 N.W. 400, 406-407.)

Also in State v. McComb, the court cited with approval Wright v. State, 90 Tex.Cr.R. 435, 235 S.W. 886, wherein when discussing gross negligence it was said:

'* * * In civil cases the courts of this state define it as such negligence as evidences a reckless disregard of human life or bodily injury.' (Emphasis supplied.)

It is to be noted that this opinion antedates by some fourteen years the later vehicular homicide statute, which first employed the words 'reckless disregard of the safety of others.'

In State v. Catellier, supra, 179 P.2d at 227-228, this court held it was error to refuse an instruction defining criminal negligence in a manslaughter case which included the following element:

"* * * It means wantonness and disregard of the rights of others that is equivalent to a criminal intent.' * * *'

In arriving at that result the court cited with approval the following definition:

"* * * a reckless disregard of human life or the safety of others, or indifference to consequences, equivalent to criminal intent.' * * * ' (Emphasis supplied.) (Citing 40 C.J.S. Homicide § 62, p. 926.)

This definition, it will be noted, includes the identical elements of our vehicular homicide statute.

In State v. Rideout, Wyo., 450 P.2d 452, 453-454, this court had occasion to explore the definition of the term 'careless disregard of the safety of others' without attempting to correlate it with our manslaughter statute or to distinguish it. An examination of that definition does not reveal...