United States v. Pardee, 10440.

• Decision Date: 14 September 1966
• Docket Number: No. 10440.,10440.
• Parties: UNITED STATES of America, Appellee, v. Dennis Lloyd PARDEE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

368 F.2d 368 (1966)

UNITED STATES of America, Appellee, v. Dennis Lloyd PARDEE, Appellant.

No. 10440.

United States Court of Appeals Fourth Circuit.

Argued June 3, 1966.

Decided September 14, 1966.

Rehearing Denied November 2, 1966.

COPYRIGHT MATERIAL OMITTED

Paul T. McHenry, Jr., Baltimore, Md. (Emmett H. Nanna, Jr., Hyattsville, Md., and Anthony J. Sacco, Towson, Md., on the brief) for appellant.

Arthur G. Murphy, Asst. U. S. Atty. (Thomas J. Kenney, U. S. Atty., on the brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and BELL, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

Tried on a 5-count indictment in the District Court, Dennis Lloyd Pardee was convicted on the first count of involuntary manslaughter, under 18 U.S.C. § 1112, and on the fifth count of driving a motor vehicle on the wrong side of the road, under regulations of the Secretary of the Interior.¹ The other three counts were dismissed on defendant's motion before the case was submitted to the jury. Both offenses occurred July 6, 1965, in Maryland upon the Federal portion of the Baltimore-Washington Parkway.²

Appealing, Pardee assigns basically three errors in his convictions: (1) indictment of his conduct as violative of the Federal statute and regulations, when the laws of Maryland governed exclusively; (2) insufficiency of the evidence to convict on either count; and (3) the Court's refusal to charge the jury on either criminal intent, or the nature of the element of unlawfulness, in the crime of involuntary manslaughter.

We hold the indictment sound in premising its accusations upon the Federal law and regulation. As the violation of the regulation, driving on the wrong side of the road, was adequately proved, we affirm the conviction on that count. However, in the absence of a more expanded jury instruction on the essential of unlawfulness, we must reverse the homicide conviction.

The Parkway, for our purpose, may be considered as running north and south. The roadway for southbound traffic — from Baltimore towards Washington — consists of several lanes and is separated from the northbound route by wide median spaces. Shortly after midnight, the early morning of July 6, 1965, Pardee was driving eastwardly on a State highway, Route 197, and approaching the Parkway from the west. So proceeding, he would come first to the southbound artery of the Parkway, but his destination was more directly reached via the northbound route. Nearing the intersection of the Parkway and the State highway, he turned to his right upon an access road leading up from the highway to the Parkway, which was at a higher level than the highway.

In this course he passed, on the State highway, on the access road, and at the entry to the Parkway, several directional signs cautioning that he was approaching the southbound lanes of the Parkway leading to Washington. Notwithstanding, instead of bearing to the right and merging with the southward traffic on the Parkway, he made a virtually 180° left turn and drove across its southbound lanes into the easternmost and fast lane. Continuing northwardly in this path for approximately 1700 feet, his car collided with an automobile going south, resulting in the death of its driver.

I. The regulations cover generally the "park areas", and it is conceded that the Parkway is such a "park area" in Maryland. 36 CFR 3.1, 3.4. The regulation upon which the defendant was convicted reads as follows:

"§ 3.32 Reckless driving; prohibited operations.

"Persons operating motor vehicles within areas covered by this part shall drive in a safe manner. The following are prohibited:

* * * * * *

"(d) Driving on wrong side of street or road."

The defendant's assertion that this regulation is not applicable rests on the following regulations within the same codification:

"§ 3.3 Applicability of * * * State laws.

* * * * * *

"(b) In areas to which this part is applicable, located outside the geographical limits of the District of Columbia, the laws of the State within which the area is located shall be invoked and enforced in accordance with the act of June 25, 1948 (62 Stat. 686; 18 U.S.C. sec. 13) Assimilated Crimes Act." (Accent added.)

* * * * * *

"§ 3.29 Laws and regulations applicable to traffic control; enforcement.

"(a) * * * Maryland * * * laws and regulations. The laws of Maryland, * * * as adopted by the act of June 25, 1948 (62 Stat. 686; Title 18 U.S.C. sec. 13) Assimilated Crimes Act, shall constitute the traffic and motor vehicle regulations enforceable under the act of March 17, 1948 (62 Stat. 81) authorizing, inter alia, arrests by United States Park Police for violation of regulations, in all areas covered by this part the part containing all regulations discussed herein within their respective geographical limits unless otherwise provided for by act of Congress or the regulations contained in this part * *." (Accent added.)

The defendant accordingly relies on the Assimilated Crimes Act, 18 U.S.C. § 13, reading as follows:

"§ 13. Laws of States adopted for areas within federal jurisdiction.

"Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title 18 USC 7, declaring the territorial jurisdiction of United States, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment." (Accent added.)

The defendant argues that Congress has in this manner unequivocally directed that the State traffic laws exclusively shall govern the operation of motor vehicles on the Baltimore-Washington Parkway. This argument is addressed to both counts. On the manslaughter count, the defendant notes, Maryland has a special statute, Annotated Code of Maryland (1957), Article 27, § 388, creating manslaughter by automobile as a distinct offense, and classifying it as a misdemeanor. The contention is that the Assimilated Crimes Act invokes this State statute to the exclusion of the Federal manslaughter statute making such a homicide a felony.

The District Judge overruled these arguments, and quite correctly, we think. To begin with, it is evident that § 3.3, supra, refers to general laws; § 3.29, supra, deals specifically with traffic control laws and regulations, thus predominating over § 3.3 as to this special matter. Again, § 3.3 calls into play only such State laws as are inducted by the Assimilated Crimes Act, which, as noted post, is not applicable where, as here, the Federal Government has spoken. Moreover, the applicability of the State traffic laws is excepted by the very regulation, § 3.29, on which the appellant relies. That section excludes the State law where it has been "otherwise provided for by act of Congress, or the regulations contained in this part". Since the Secretary of the Interior, as authorized by Congress, has prohibited, in § 3.32(d), "Driving on wrong side of street or road", such offense has been "provided" by the regulations within the reservation of § 3.29. In so excluding the State traffic law, the penalties named therein are, contrary to the appellant's contention, also rendered inapplicable, and the punishment stated in the regulations, § 3.5, is substituted therefor.

The same conclusions apply in respect to the law of involuntary manslaughter. Here Congress has proscribed it as a felony and fixed the punishment, all without ambiguity. Found in 18 U.S.C. § 1112, so far as pertinent, the crime is denounced as follows:

"Manslaughter.

"(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

"Voluntary — * * *

"Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death."

Obviously, then, the offense here is beyond the scope of the Assimilated Crimes Act since the latter by its terms embraces only "any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed * * * within the jurisdiction of the State", and thereby excludes conduct made punishable by Congress. With respect to the alleged incorporation by §§ 3.3 and 3.29 of the Maryland automobile manslaughter statute, it is enough to say that here this statute has been preempted by the Federal manslaughter act.

These conclusions do not depart from the holding in United States v. Dreos, supra, 156 F.Supp. 200 (D.Md.1957). The offense charged there was the operation of a motor vehicle at a speed in excess of the posted limit. No Federal speed regulation was pleaded as effective on the Parkway in Maryland. Indeed, the regulations provide, § 3.31(b), that the speed limitations established by Maryland should control on the segments of the Parkway within its boundaries. No such specific incorporation of State law exists here.

II. The jury's finding of guilt beyond a reasonable doubt of wrong-way driving was certainly not without evidential warrant. This is apparent from the outline of the facts heretofore included, which is but a summary of the evidence when appraised in the light most favorable to the prevailing party, the prosecution. See United States v. Sawyer, 294 F.2d 24, 31 (4 Cir. 1961), cert. den., 368 U.S. 916, 82 S.Ct. 196, 7 L.Ed.2d 132 (1961).

III. The District Court was right, too, in charging the jury that an intent on the defendant's part to violate the regulation was not an element of the offense and need not be proved. It is a police regulation and conviction of its breach requires no proof of intent. See United States v. Balint, 258 U.S. 250, 251-252, 42 S.Ct. 301, 66 L.Ed. 604 (1922). A bald transgression of its...