The defendant, Ralph Bailey, was charged with two counts of manslaughter, RSA 630:2,1(b) (Supp. 1983), and convicted of negligent homicide, RSA 630:3 (1974) (current version at Supp. 1985), on both counts. He was sentenced by the Trial Judge (Dalianis, J.) to two consecutive terms of imprisonment. He appeals both from the convictions and from the imposition of consecutive sentences. For thе reasons stated below, we affirm.
On July 30, 1982, the defendant, while driving drunk, struck a vehicle driven by Susan Beaulieu. As a result, her children Kathryn and Nathan, passengers in the car, were killed. The defendant was indicted for and tried on two counts of manslaughter. The jury convicted him of two counts of negligent homicide. He was thereafter sentenced to two consecutive tеrms of three and one-half to seven years.
The defendant raises three issues on appeal. First, he maintains that prosecution or conviction on two counts of mаnslaughter or negligent homicide arising from only one act violates the double jeopardy clause of the New Hampshire Constitution. N.H. Const, pt. I, art. 16. Second, the defendant аsserts that consecutive sentencing in this case violates the federal double jeopardy clause, U.S. Const. amends. V, XIV, because it exceeds the maximum punishment intended by the legislature. Finally, he argues that consecutive sentencing in the absence of clear legislative intent violates “applicable principles of statutory construction.”
The defendant first argues that since he committed only one negligent act, that of driving an automobile while intoxicated, he may be prosecuted on and conviсted of only one count of manslaughter or negligent homicide in spite of the fact that his negligent act caused more than one death. He grounds this argument solely on our Stаte Constitution’s double jeopardy clause. We thus consider only the State Constitution and cases interpreting it, though we may employ decisions from other jurisdictions as aids in our analysis.
In Heald v. Perrin,
Other jurisdictions are divided on this issue, some holding that a defendant may be convicted on only one cоunt of negligent homicide under these circumstances, see, e.g., People v. Holtz,
We believe that the essential question is whether “the facts charged in the second indictment would, if truе, have sustained the first.” State v. Sias,
Defendant next argues that imposition of multiple consecutive sentences on two counts of negligent hоmicide exceeds the maximum punishment intended by the legislature, thereby violating the double jeopardy clause of the fifth amendment to the United States Constitution.
The federal dоuble jeopardy clause protects a defendant’s rights in three ways: “First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense.” Whalen v. United States,
Determination of the propеr unit of prosecution is a function of the legislature’s intent. See Bell, supra at 82. Thus, the touchstone of whether the double jeopardy clause is violated in this context is the legislature’s articulated intent, see Albernaz v. United States,
Defendant’s final argument, that a construction of the statute such as we have described violates principles of statutory construction, is without merit. RSA 625:3 states that “[a]ll provisions of this code shall be construed according to the fair import of their terms and to promote justice.” The defendant claims that our construction of RSA 630:3 (1974) (current version at Supp. 1985) would result in disproportionality of sentences for essеntially the same conduct, citing the “fortuitous” nature of the number of persons killed in any given instance of drunken driving. He states that such a result would be “irrational.” We believe that the dеfendant’s argument is logically flawed in that it was as much a matter of chance that anyone at all was killed as the result of defendant’s negligent behavior as that multiple individuals wеre killed. To the defendant’s fortuity argument, we can only say as did the District of Columbia Court of Appeals: “That appellant’s conduct would have resulted in the tragedy which oсcurred was not fortuitous but, unhappily, was almost inevitable. The combination of an undue ingestion of alcohol and the resultant mishandling of automobiles causes awesome carnage on our highways daily. In fairness it can be said that appellant could hardly have chosen a means which would have been more likely to result in injury to many persons.” Murray v. United States,
The presence in our criminal statutes of rules governing both driving while intoxicated, RSA 265:82 (1982) (current version at Supp. 1985), and negligent homicide caused by driving while intoxicated, RSA 630:3 (1974) (current version аt Supp. 1985), further reinforces our view that the intent of the latter statute is to punish defendants who kill in the course of their drunken sprees. The intent of the latter statute, we believe, is tо protect individuals from drunken drivers by punishing defendants whose behavior results in death. This view, when combined with the plain meaning of the statute, indicates to us that multiple charges may be brought when there are multiple victims. The convictions and sentences are affirmed.
Affirmed.