(specially concurring).
I concur.
In State v. Trujillo, 85 N.M. 208, 213, 510 P.2d 1079 (Ct.App.1973), Judge Wood said:
Our “homicide by vehicle” statute has no degrees....
In the instant case, Judge Wood’s dissent says:
Compare State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973).
The comparison shows a difference in the form of the requested jury instruction. In Trujillo, defendant sought “driving while under the influence of intoxicating liquor” as a lesser included offense. In the instant case, defendant sought an instruction on “homicide by vehicle while unlawfully operating a motor vehicle.” If the “Homicide by vehicles” statute has no degrees, Judge Wood’s dissenting opinion in the instant case should read:
I dissent, State v. Trujillo, supra. Trujillo should be overruled
Judge Wood reads Section 66-8-101 to read as one criminal offense, paraphrased as follows:
Homicide by killing is the killing of a human being in the unlawful operation of a motor vehicle either by way of reckless driving or driving while under the influence of intoxicating liquor or drugs. Any person who violates this law is guilty of a felony.
Vehicular killings other than as specified are governed by our general homicide laws.
By this interpretation, a misdemeanor is eliminated from the offense of “Homicide by vehicles.”
The only comparable homicide law is involuntary manslaughter. Sectipn 30-2-3(B), N.M.S.A.1978. It reads in pertinent part:
Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony ....
Defendant could have been prosecuted under this statute and received the same penalty without any legal problem. State v. Deming, 66 N.M. 175, 344 P.2d 481 (1959). As now construed, every criminal offense stated under “Homicide by vehicles” can be prosecuted under involuntary manslaughter. These statutes are of the same subject matter and penalty. Involuntary manslaughter is much more broad than “Homicide by vehicles.” But neither statute is controlling and defendant could be prosecuted under either statute. Was this the intention of the legislature? It was not so referenced in the “Homicide by vehicles” statute.
What, then, is the purpose of having two statutes, one of which is included in the other? “The purpose of the ‘pari materia’ rule is to ascertain and carry into effect the legislatures’ intention. Dupont et al. v. Mills et al., 9 W.W.Harr. (Del.) 42, 196 A. 168, 119 A.L.R. 174.” State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966). But Dupont says that the rule is applicable only when the terms of the statute to be construed are ambiguous or of doubtful significance. The “Homicide by vehicles” statute is neither. Why, then, construe the “Homicide by vehicles” statute to be one that falls within the realm of involuntary manslaughter? Surely, the legislature did not intend this absurd result.
Judge Wood says that to hold “the killing of a human being in the unlawful operation of a motor vehicle” to be a misdemeanor is an absurd result because the penalty is light. Assming this to be true for the moment, we have two absurd results, both of which are created, not by the legislature, but by judicial construction. We should not seek two absurd results. We should seek one rational result.
In State v. Pendley, 92 N.M. 658, 593 P.2d 755 (Ct.App.1979), Judge Wood said it is for the legislature to establish criminal penalties, not the courts; that we look to the language of the statute to determine what crime has been defined and what criminal penalty has been established; that if the legislature is informed of existing law and enacts another, it shows a legislative intent to change the existing law; that when the meaning of the statutory language is plain, there is no room for construction.
A year later, Judge Wood relies on Ex Parte DeVore, 18 N.M. 246,136 P. 47 (1913). DeVore is applicable whenever the meaning of a word in a statute is necessary to reach a healthy result. It is not applicable to determine whether a misdemeanor leads to an absurd result. If the Pendley rules are healthy, we should not avoid them. The Pendley rules are applicable in the instant case.
If the legislature is satisfied with the misdemeanor penalty it is not the duty of this Court to put on a legislative robe and eliminate it. This duty rests with the legislature. It is our duty to reasonably construe “Homicide by vehicles” to protect persons charged with a violation thereof.
In Arkansas, negligent homicide by motor vehicle is a lesser degree of the offense of involuntary manslaughter, § 75-1001, 6B Arkansas Statutes Ann.1947 (1979 Replacement) and is a class A misdemeanor. Section 75-1055. Reckless driving is a lesser degree of the offense of negligent homicide. Bentley v. State, 252 Ark. 642, 480 S.W.2d 346 (1972).
California has a misdemeanor-manslaughter statute which involves the driving of a vehicle. Section 192, subsection (3) and Section 193; People v. Glass, 266 Cal.App.2d 222, 71 Cal.Rptr. 858 (1968).
Public policy favors an interpretation of the “Homicide by vehicles” statute which supports a lesser included offense. The word “homicide” means “The killing of any human creature.” Black’s Law Dictionary, p. 867 (Rev. 4th Ed.1968); 40 C.J.S. Homicide § 1 (1944). The term “homicide” is neutral. While it describes the act, it pronounces no judgment on its moral or legal quality.
Homicide may or may not be felonious. People v. Andrus, 331 Mich. 535, 50 N.W.2d 310 (1951). In its ordinary meaning, an intention to kill is not essential. There are accidental homicides. United Life & Accident Ins. Co. v. Prostic, 169 Md. 535, 182 A. 421 (1936).
Criminal intent, a mental state of conscious wrongdoing, is a necessary element in the crime of homicide by vehicle. The violation of a traffic code is not, in and of itself, sufficient to support a conviction. State v. Jordan, 83 N.M. 571, 494 P.2d 984 (Ct.App.1972); State v. Dutchover, 85 N.M. 72, 509 P.2d 264 (Ct.App.1973). In other words, the driver of a motor vehicle may unlawfully kill a person, yet, absent “conscious wrongdoing” is not guilty of homicide by vehicle. The driver is guilty of a misdemeanor. To distinguish between “unlawful operation” and “conscious wrongdoing” in the operation of a motor vehicle involves variable shades of conduct. The common and ordinary factor in a collision is a violation of the traffic code — a misdemeanor.
When the evidence presented to a jury creates a reasonable doubt as to the “conscious wrongdoing” of a driver, the jury should have the right to reduce the degree of the offense to an unlawful traffic violation. The driver of the vehicle is entitled to this protection. The legislature intended the distinctive result. It was so declared in the statute.
As a dangerous instrumentality, the motor vehicle takes human life diseriminatorily by the conscious wrongdoer not the traffic violator. The former deserves a heavier penalty than the latter.