State v. Etzweiler

Souter, J.,

concurring specially: I concur with the results reached by Justice Batchelder, and I join in his opinion, save in two respects. Although there would be no value in an extended analysis at this point, I do not read RSA 626:8, IV, as my brother does. That section provides that

“[w]hen causing a particular result is an element of an offense, an accomplice in the conduct causing such result *68is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.”

I read this language as an attempt to provide that a person may be criminally liable as an accomplice even if he does not act “with the purpose of promoting or facilitating the commission of an offense.” RSA 626:8, ILI(a).

The attempt fails because the meaning of “accomplice” in section IV is unclear. Section III provides what is necessary to be an “accomplice ... in the commission of an offense.” Among other things, such an accomplice must have a “purpose” to promote or facilitate the commission of the offense. Section IV purports to determine when an accomplice in “conduct” causing a particular result is also an accomplice in the commission of the offense defined by reference to that result. Section IV does not, however, define this new sense of “accomplice” in conduct. One can guess that it means “accomplice” as used in section III minus the “purpose.” This is no more than a guess, however. The confusion is probably explained historically by tracing the revisions in the Model Penal Code, on which New Hampshire’s provisions are based. Compare Tent. Draft No. 1, § 2.04(3)(a), (b) and (4) with final draft § 2.06(3)(a) and (4); compare Tent. Draft No. 1, § 2.04(4) with RSA 626:8, IV. See P. Robinson and J. Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. Rev. 681, 733 (1983). Whatever the explanation, section IV fails to give any comprehensible, let alone fair, notice of its intended effect and is thus unenforceable. United States v. Harriss, 347 U.S. 612 (1954). It is of course open to the legislature to provide for accomplice liability more broadly than it has done in section III alone.

My second disagreement is about the comparative analyses of RSA 630:2, 1(b) (Supp. 1983), defining manslaughter as recklessly causing death and RSA 265:79 (Supp. 1983) providing that driving recklessly is a class B felony when death results from it. I do not believe that the offenses so defined are distinguishable on the ground that the one requires proof of recklessness in causing death, while the other requires only proof of recklessness in the driving, but no proof of culpable mental state with respect to the resulting death. RSA 265:79 (Supp. 1983) does not expressly dispense with the general requirement of RSA 626:2, that a culpable mental state be proven with respect to each material element of an offense. I conclude from this that there is no conflict between those two statutes and that they must be read together. See Hayes v. Hanson, 12 N.H. *69284, 290 (1841). It follows that a mental state of recklessness must be proven with respect to the element of causing death under RSA 265:79 (Supp. 1983), just as it must be proven under RSA 630:2,1(b) (Supp. 1983).

I therefore conclude that RSA 265:79 (Supp. 1983) proscribes no homicide that is not also proscribed by RSA 630:2, 1(b) (Supp. 1983). Whether or not this is a desirable state of the statutory law is not for this court to decide. I would follow United States v. Batchelder, 442 U.S. 114 (1979), to find that the statutory scheme does not deny equal protection of the law.