(dissenting).
The majority have adopted my view, and language, that the literal wording of § 66-8-101, N.M.S.A.1978, and the legislative history, support defendant’s argument that the offense of homicide by vehicle has lesser included offenses. The consequence of defendant’s position is that all vehicular killings are misdemeanors unless the killing results from driving under the influence of intoxicating liquor, or a drug, or reckless driving.
The majority disagree with my view that (1) defendant’s argument should be rejected because the result is absurd; (2) the legislative intent was contrary to defendant's contention; (3) § 66-8-101, supra, applies only to vehicular killings in the manner specified in § 66-8-101(B), supra; and (4) vehicular killings other than as specified in § 66-8-101(B), supra, are governed by our general homicide laws. Accordingly, I dissent.
The power to define crimes and to establish criminal penalties are legislative functions. State v. Pendley, 92 N.M. 658, 593 P.2d 755 (Ct.App.1979); State v. Moss, 83 N.M. 42, 487 P.2d 1347 (Ct.App.1971). In determining what crime has been defined and what criminal penalty has been established, we look to the language of the statute. State v. Pendley, supra. Where, however, adherence to the strict language of the statute “would lead to injustice, absurdity or contradictions, the duty devolves upon the Court of ascertaining the true meaning.... And it is a well settled rule, in the construction of a statute, that the spirit or reason of the law will prevail over its letter, especially where the literal meaning is absurd .... ” Ex Parte DeVore, 18 N.M. 246, 136 P. 47 (1913). “An interpretation of a statute will never be adopted which will render the application thereof absurd or unreasonable.” Montoya v. McManus, 68 N.M. 381, 362 P.2d 771 (1961). The reason for these rules is to permit the application of common sense to the terms used in the legislation in order to avoid an absurdity which the Legislature ought not to be presumed to have intended. Ex Parte De-Vore, supra. See State v. Herrera, 86 N.M. 224, 522 P.2d 76 (1974).
It would be absurd to hold that the Legislature intended all killings in the unlawful operation of a motor vehicle, except where there were violations of §§ 66-8-102 and 66-8-113, N.M.S.A.1978, to be treated as misdemeanors. Such a view would include those unlawful operations where the motor vehicle is used as a weapon (a) to run down and kill a pedestrian; (b) to repeatedly drive over a person lying on the ground; (c) to repeatedly strike an opponent’s vehicle in a “fight” between two cars. Killings in such situations involve first and second degree murder and voluntary manslaughter. The Legislature could not have intended that killings in such situations would have a maximum punishment of a $100 fine and 90 days in jail. See § 66-8-7, N.M.S.A.1978; compare State v. Herrera, supra.
The facts in this case, however, do not involve a situation where the unlawful operation of the vehicle, but for § 66-8-101, supra, would be felonious. Defendant’s requested instructions stated a theory of a lesser included offense, which by definition, must have been necessarily included within the charge of homicide by vehicle by reckless driving. See State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975). Although neither the requested instructions nor the briefs identify a specific “unlawful operation”, several are in evidence — speeding, driving on the wrong side of the road, careless driving. Sections 66-7-301, 66-7-308, 66-8-114, N.M.S.A.1978. These are in the category of an unlawful act not amounting to a felony which, but for § 66-8-101, supra, would be involuntary manslaughter where there is a killing in the commission of these unlawful acts. Section 30-2-3(B), N.M.S.A.1978.
It would be absurd to hold that the Legislature intended all vehicular killings by unlawful acts not amounting to a felony, except where there were violations of §§ 66-8-102 and 66-8-113, supra, to be treated as misdemeanors. Two examples of the penalty consequences are: 1. If the vehicular killing resulted from driving on the wrong side of the road, the penalty for the killing would not be greater than the penalty for driving on the wrong side of the road without a killing. Section 66-8-7, supra, would be the penalty for the underlying offense and, under defendant’s theory, § 66-8-7, supra, is the penalty where that offense results in a killing. 2. If the vehicular killing resulted from driving on the wrong side of the road, the penalty for that killing under § 66-8-7, supra, would be less than penalties specified for “under the influence” driving or reckless driving in violation of §§ 66-8-102 and 66-8-113, supra. Both of these offenses have minimum penalties, § 66-8-7, supra, does not. The Legislature could not have intended that a vehicular killing would have the same or a lesser penalty consequence than the underlying offense involved in the killing. Compare State v. Herrera, supra.
A lesser included offense must be “necessarily included”. State v. Wingate, supra. Section 66-8-114, supra, defines “careless driving” and § 66-8-113, supra, includes “driving carelessly” in its definition of reckless driving. There was evidence which, if believed, would have supported a finding of careless driving as opposed to reckless driving. Thus, there was a lesser offense included within the offense of reckless driving, and there was evidence to support the lesser offense. State v. Wingate, supra. If defendant had been charged with reckless driving, he would have been entitled to an instruction on careless driving as a lesser included offense. The charge, however, was not reckless driving; the charge was homicide by vehicle by reckless driving.
Is there a lesser included offense of homicide by vehicle by careless driving? If so, it has not been declared to be a felony and, thus, is a misdemeanor under § 66-8-7, supra. The maximum penalty for such a killing by careless driving would be no more than the maximum penalty for careless driving without a killing. It would be absurd to hold the Legislature intended that a killing by careless driving would be treated as a misdemeanor. The Legislature could not have intended that a killing by careless driving would have such a penalty consequence. To avoid an absurd result, I would hold that the Legislature had no intent that there be lesser included offenses included within the offense of homicide by vehicle. Compare State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973).
Summarizing the foregoing discussion:
1. Section 66-8-101, supra, does not apply to vehicular killings where the unlawful operation is a felony.
2. Section 66-8-101, supra, does not apply to vehicular killings where the unlawful operation does not amount to a felony unless the unlawful operation is included within § 66 — 8-101(B), supra. The only unlawful acts (which do not amount to felonies) included within the homicide by vehicle statute are those acts which are violations of §§ 66-8-102 and 66-8-113, supra.
Paraphrasing State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964 (1959): To hold otherwise, that all vehicular killings are misdemeanors except where §§ 66-8-102 and 66-8-113, supra, are violated, when the whole country is concerned with the number of highway fatalities, would be to arrive at a most incongruous result, to say the least.
Inasmuch as § 66-8-101, supra, applies only to violations of §§ 66-8-102 and 66-8-113, supra, § 66-8-101, supra, is no more than a specific statute applicable to situations which would, but for the statute, have been prosecuted under the involuntary manslaughter statute. This is shown by the following cases, in sequence: State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); State v. Tracy, 64 N.M. 55, 323 P.2d 1096 (1958); State v. Deming, supra; State v. Dutchover, 85 N.M. 72, 509 P.2d 264 (Ct.App. 1973).
I would affirm the conviction.