*1 Villаge were liable if it and Rancho held easily FNB could most parties innocent Mexico, of New STATE FNB was an inno- the loss. prevented Plaintiff-Appellee, impunity It be said with party.
cent cannot party. was an Village Rancho innocent solely in of its business put conduct BARELA, Jerry Defendant-Appellant. partner. gener- Its general the hands its No. scope within the of his partner, acting al authority, set transaction in motion New Mexico. Appeals Court Village. loss of Rancho directly caused the effect, Village promoted the loss Rancho 1, 1980. July making general manager. its Darwin 19,1981. Quashed Writ Jan. Village. Rancho Con- The loss must fall on Brokerage, Bank v. Wa-Ho Truck tinental
122 Ariz.
A bank also been where checks a defalcat-
liable cashed for bookkeeper which to her
ing payable customers, from or credit-
employer various en-
ed her her unauthorized account over Bank, however,
dorsement. was not
liable where was no restriction
bookkeeper’s draw authority actual
checks on Von employer’s her account.
Gohren, supra. lengthy After a discussion Code, pertinent provisions said:
court provisions of the code
Considering does, think, to the
as a whole we lead that, except
conclusion for certain limited
circumstances, one accepts who signature
instrument on an unauthorized be liable endorsement intended to
to the true of the instrument. owner totally Such result is consistent * * * * pre-code rule [Em-
phasis Wash.App. added.] [8
P.2d 474.] also, Skyline Logging,
See Swiss Baco Haliewicz,
Inc. v. 21 567 P.2d Wash.App. focal
Authorization to endorse was the
point liability. which determined the Bank’s say any equivocation
We can without
Darwin had sole authorization to endorse money order.
The FNB was not liable Vil- to Rancho
lage. Summary judgment be en- should
tered FNB. *2 66-8-101(B), and for this reason
within § erroneously requested instructions his 66-8-101, wording of § refused. The literal support defendant’s history legislative argument. intent and legislative
We hold that the defendant’s supports relevant case law Thus, instruc- requested contention. refused. not have been tions should part statute by The homicide vehicle in 1978. enacted the Motor Vehicle Code 66- Section N.M.S.A.1978. 8-101, reads: killing is the by Homicide vehicle A. unlawful being a human tion of a motor vehicle. commits homicide Any person
B. who violating 66-8- by vehicle while guilty of a NMSA 1978 or 66-8-113 felony.
Pertinent to defendant’s contentions and 66- penalty provisions, two 66-8-7 8-9, They read: N.M.S.A.1978. Penalty 66-8-7. for misdemeanor. any person A. It is a misdemeanor for Lazar, Rito, William El for defendant- any prоvision to violate of the Motor Ve- appellant. hicle to 66-8-140 Code NMSA [66-1-1 Gen., Bingaman, Atty. Sammy Jeff Law- unless the violation is declared a 1978] Fe, Pacheco, Gen., Atty. rence Asst. Santa felony. plaintiff-appellee. for specified B. another Unless Code, every person Vehicle the Motor OPINION a misdemeanor for violation convicted of Motor any provision Vehicle ANDREWS, Judge. by a fine of not punished Code shall be Defendant was convicted of homi ($100) more than one hundred dollars or by by Sec imprisonment for not more than nine- tions 66-8-101 and N.M.S.A.1978. or ty days, both. He on an asserted requested instructions for Penalty felony. 66-8-9. offense, which were refused. violating any convicted of Any person was error. The refus He claims the refusal Vehicle provision of the Motor Code [66— effect ed instructions were to the 1-1 to 66-8-140 declared a NMSA 1978] be committed could felony, punishment specified, is not operating a vehi killing unlawfully while by imprisonment punished shall be any killing is that position cle. Defendant’s more five year less than one nor than of a vehicle is cover unlawful less than five a fine of not years 66-8- ed that under § § ($500) than five dollars nor more hundred misdemeanor, 101(A), is a the offense ($5,000) or both. thousand dollars specific prоvisions under the two 66-8-101(A), defines the 66-8-101(B), literally, the offense a De Read § § vehicle to include is that a crime of homicide fendant’s contention being human in the unlawful 66-8-101(A), lesser offense included of a is a However, of a motor vehicle. Read laws. Laws ch. 185 stated literal- ly, only killings involving a Vehicle misde- violation of for “Motor Code” penalties language either identical N.M.S.A. meanors felonies felonies, (1978) аre pun- declared to be Laws 66-8-7 and *3 under 1961, separate ishment 66-8-9. Other the repealed § ch. also 185 felonies, misdemeanors, declared to be two 1953 laws. provisions of the penalty 66-8-7(A), see punishment under Thus, legislation, § there was the 1961 after 66-8-7(B). § for misde- general provision one penalty provision general penalty meanors one and Legislative History “Motor Vehicle the felonies comprehensive Two laws pertaining to Code.” motor vehicles were enacted in 1953. 1969, the homicide Laws ch. 138 enacted 1953, Generally speaking, Laws ch. 138 lan- Its substantive by vehicle statute. enacted the Uniform Motor-Vehicle Admin- of language guage was identical the istration, Title, Certificate of and Anti- as “a The statute was enacted 66-8-101. § 138, 1953, Theft Act. See Laws ch. 119. § By new 1953”. N.M.S.A. 114 and Chapter Sections 115 of 138 were homicide vehicle stat- language, the penalty provisions. por- The substantive part as a of the “Motor ute was enacted tions of 114 115 were the and source of §§ penalty the general Vehicle to which Code” penalties the now appearing and felonies misdemeanors provisions for 1953, and Laws ch. 138 had applied. nothing to do killing by with a vehicle and by vehicle statute Both the homicide penalty provisions the of that law were not the “Mo- provisions the of penalty applicable killing. to a vehicular repealed by Laws tor were Vehicle Code” 1953, Generally speaking, Laws ch. 139 1978, 35, Vehicle Code ch. and a new Motor enacted the Act Regulating Uniform Traf- enacted This new Code enacted. 1953, 139, Highways. fic on Laws ch. See quoted 66-8-9 and as Chapter 193. Section 53 139 set forth of § rеlationship in this between opinion. offense of homicide in negligent the terms provision the vehicle homicide caused by driving of death in reckless disre- provisions changed by was not penalty rights of the others. gard of Section 53 reading 1978 enactment. literal penalty, penalty greater stated its own a statutes, supports defendant’s these general penalty than the for misdemeanors since 1969. The lаck of position, has existed 139. Chapter set forth 181 of § further in the 1978 law legislative change Chapter was repealed 53 139 Laws argument. supports defendant’s See 1957, 1957, repeal ch. 239. With this 229, 1030 N.M. 20 P.2d Thompson, 37 special was no applying there law vehicu- a killing; repeal, lar after be prosecuted gen- would under the included of homi- Is there a lesser offense Deming, homicide eral laws. See State so, it driving? сareless If N.M. 344 77 964 66 P.2d A.L.R.2d and, felony has not declared to be a thus, is misdemeanor under penalty for such supra. The maximum provisions chs. of Laws no more killing by careless would be 139, together pro- with other motor vehicle for careless penalty than the maximum visions, compiled in 1953 N.M.S.A. killing. may argued It driving without a through Chapter Articles Laws intend- could not have Legislature that ch. por- 1 declared that these would killing by ed that а could compilation tions of the 1953 be cited that consequence, and have such a Although as the “Motor Vehicle Code”. result, should hold “Code”, to avoid an absurd we compiled two 1953 laws were had no intent sepa- Legislature ch. 1 left intact Laws provisions 1953 there be included offenses rate of the two “unlawful” operating within the his car offense of agree proposition. We cannоt with this above. methods set forth There are in our degrees “Homicide on a lesser failure instruct Vehicle” statute. Defendant was entitled error where is reversible included offense to instructions on the unlawful the less to establish some evidence If driving.1 his other than Wingate, er offense. State the defendant is convicted homicide due (Ct.App.1975). There is some driving, to reckless testimony this effect from evidencе to drove car left undisputed that defendant his analyst. an accident of defendant and the center oc lane when accident defendant case is reversed and This curred. the defendant convicted new trial. granted *4 driving wrong on homicide reason of the side of the it is a misdemeanor. IT ORDERED. road IS SO A included offense” is one “lesser J., WOOD, dissenting. C. some, all, which is one but not composed of a offense and which greater elements J., SUTIN, concurring. specially not in does not element included concurring). SUTIN, Judge (specially impossible so that it is greater the offense the offense without nec greater commit I concur. essarily committing the lesser offense. See Trujillo, 510 In v. 85 N.M. State Patterson, 44(d); v. 90 R.Crim.Proc. State Wood (Ct.App.1973), Judge P.2d said: 1079 (Ct.App.1977); 568 261 P.2d State statute has Our “homicide vehicle” Kraul, P.2d (Ct.App. v. 90 N.M. 108 no degrees.... Medina, 1977); State v. 87 N.M. case, In instant Wood’s dissent Judge the P.2d 486 (Ct.App.1975). says: case, greater In the instant offense is 85 N.M. Compare Trujillo, State vehicle, homicide of a human P.2d being operation in the unlawful of a motor operation by way vehicle. Unlawful exists shows difference comparison a driving, driving of reckless the influ- form the instruction. In requested jury intoxicating liquor, speeding, Trujillo, sought “driving ence of driv- while defendant ing wrong intoxicating liquor” side of road and under the influence All of these elements of offense. In the instant lesser included are case, these methods of included sought an instruction on defendant These greater offense. unlawful unlawfully oper- by vehicle while “homicide tions have no not element ating motor vehicle.” If the “Homicide greater offense. Judge degrees, vehicles” statute has no opinion dissenting Wоod’s in the instant that charged State defendant did: case read: should
operate a motor vehicle in a reckless man- dissent, Trujillo, supra. I Tru- State doing ner ... and so did while unlawful- jillo should overruled ly Edgar (Emphasis kill D. Moates .... added.) reads Judge Wood Section 66-8-101 to offense, paraphrased criminal read as one this Under the defendant could charge, as follows: in a operate his motor vehiclе reckless man- killing of ner. But if was not this is the it conduct Homicide victim, unlawfully being defendant the unlawful killed human driving would be reckless and not either guilty by way motor vehicle result while under the influ- same intoxicating drugs. Any unlawfully liquor would occur if defendant ence of Cf„ Trujillo, 1973). (Ct.App. person who violates this law is of a guilty of a motor vehicle” to be a misdemeanor is an absurd result because the penalty is light. Assming
Vehicular
this to be true for thе mo-
killings other than as speci-
ment,
results,
fied are
we have two
governed by
our
absurd
both of
homi-
created,
laws.
legislature,
not
by judicial
but
construction. We should not
By
interpretation,
a misdemeanor is
seek two absurd
We
results.
should seek
eliminated from the offense of “Homicide
one rational result.
by vehicles.”
Pendley,
593 P.2d
comparable homicide law is in-
755 (Ct.App.1979), Judge Wood said it is for
voluntary manslaughter.
Sectipn 30-2-
legislature
penal-
to establish criminal
3(B), N.M.S.A.1978. It
in pertinent
reads
ties,
courts;
not the
that we look to the
part:
language of the statute to determine what
Involuntary manslaughter
consists of
crime has been defined and what criminal
manslaughter
committed
the commis-
established;
penalty has been
if the
sion of an unlawful act
amounting
legislature is informed of existing law and
felony ....
another,
enacts
legislаtive
shows a
intent
Defendant could have
prosecuted
law;
change
existing
that when the
under this statute and received the same meaning of the statutory language
plain,
*5
any
without
legal problem. State
there is no room for construction.
v. Deming,
175,
66 N.M.
344
(1959).
P.2d 481
later,
A year
Judge Wood relies on Ex
construed,
As now
every criminal offense
DeVore,
246,136
Parte
18
(1913).
N.M.
P. 47
stated under “Homicide by vehicles” can be
applicable
DeVore is
meaning
whenever the
prosecuted under involuntary manslaugh-
of a word in a statute is
to
necessary
reach
ter. These statutes are of
subject
the same
a healthy result.
is not applicable to
matter
and penalty.
Involuntary man-
determine whether a misdemeanor leads to
slaughter is much more broad than “Homi-
an absurd result.
Pendley
rules are
by
cide
vehicles.” But neither statute is
healthy, we should not avoid them. The
controlling and defendant could be prose-
Pendley rules
applicable
are
in the instant
cuted under either statute. Was this the
case.
legislature?
intention of the
It was not so
legislature
If the
is satisfied with the
referenced in the “Homicide by vehicles”
misdemeanor
it
is not the duty
statute.
of
put
legislative
Court to
on a
robe and
What, then, is the purpose
having
of
two
duty
eliminаte it. This
rests with
legis-
statutes, one of which is included in the
lature.
It is
duty
reasonably
our
con-
other? “The purpose
‘pari
of the
materia’
strue
protect per-
“Homicide
vehicles” to
rule is to ascertain and carry into effect the
sons
with a
charged
violation thereof.
legislatures’
intention. Dupont et al. v.
Arkansas,
In
al.,
negligent homicide motor
Mills et
(Del.) 42,
9 W.W.Harr.
196 A.
168,
degree
vehicle is a lesser
119
of the offense of
Chavez,
A.L.R. 174.”
v.
State
77
75-1001,
involuntary manslaughter,
6B
354 WOOD, Judge (dissenting). Chief interpretation favors an policy
Public the “Homicide vehicles” statute view, my adopted majоrity The The supports a lesser included offense. wording 66- the literal language, that word “The “homicide” means N.M.S.A.1978, legislative his- 8-101, and the Dictionary, Law human creature.” Black’s argument that defendant’s tory, support Ed.1968); 40 Homi- 4th p. (Rev. 867 C.J.S. vehicle has of homicide the offense (1944). consequence term “homicide” of de- 1 included offenses. The kill- act, all vehicular pro- it position neutral. While describes the fendant’s are unless legal ings misdemeanors judgment on its moral or nounces no the influence results from quality. or reckless drug, liquor, intoxicating may may felonious. Homicide be Andrus, People Mich. 50 N.W.2d v. 331 my disagree with view majority meaning, ordinary In its rejected should (1) argument defendant’s are kill essential. There intention to is not absurd; (2) legisla- because the result & Acci- homicides. United Life accidental defendant's con- contrary to tivе intent was Prostic, 182 A. dent Ins. Co. Md. tention; 66-8-101, supra, applies (3) § specified manner killings to vehicular intent, mental of con- Criminal state (4) 66-8-101(B), supra; and in § necessary is a element wrongdoing, scious 66-8- specified other than the crime our governed by 101(B), are supra, not, in and violation of a traffic code I dissent. Accordingly, homicide laws. itself, support a conviction. sufficient estab crimes power to define Jоrdan, P.2d 984 83 N.M. legislative func penalties lish criminal Dutchover, (Ct.App.1972); State 658, 593 Pendley, tions. State v. other P.2d 264 Moss, (Ct.App.1979); *6 may words, driver a motor vehicle the of N.M. 487 P.2d yet, a “con- unlawfully person, kill absent has been defined determining what crime not of homi- guilty wrongdoing” scious has been estab penalty and what criminal of guilty driver is a by vehicle. The lished, language the of the stat we to look distinguish “un- misdemeanor. To between Where, how Pendley, supra. ute. State v. wrongdo- operation” lawful and “conscious language of ever, strict adherence to the a ing” of motor vehicle injustice, absurd “would lead to the statute contradictions, of The duty involves variable shades conduct. the devolves ity or ascertaining the true and factor in a collision is the of ordinary upon common Court rule, And it is a well settled meaning.... misde- a violаtion of the traffic code—a statute, the of a in the construction meanor. over prevail the will or of law spirit reason jury a presented the to When evidence letter, mean the literal especially its where a doubt as to the “con- creates reasonable ” DeVore, 18 Ex Parte ing is absurd .... driver, jury a the wrongdoing” scious 246, 136 (1913). interpreta P. 47 “An N.M. degree the to the right should have reduce adopted will never tion a statute to viola- of the offense an unlawful traffic application thereof which will render the tion. driver the vehicle is entitled to Montoya v. McMa absurd unreasonable.” legislature intended protection. The nus, 362 P.2d the result. It was so declared in distinctive appli the permit rules is to reason for these the statute. used in sense to the terms cation common mo- dangerous instrumentality, As a an in order to avoid absurdi legislation tor takes life ought human diseriminatori- not to be Legislature which the ty wrongdoer the traf- Ex De- ly the conscious have intended. Parte presumed to Herrera, Vore, fic a heavier supra. violator. former deserves State v. See than the latter. penalty 66-8-7, Legis- killing. supra, would be absurd to hold that the out a would lature intended all in the unlawful penalty underlying be the fоr the offense vehicle, of a motor where except and, 66-8-7, theory, under defendant’s there were violations 66-8-102 and is the where that offense supra, penalty 66-8-113, N.M.S.A.1978, to be treated as in If the killing. results misdemeanors. a view include Such would driving resulted from wrong those unlawful where motor operations road, for that side of the weapon (a) vehicle is used as to run down 66-8-7, would be less than supra, under § and (b) kill a pedestrian; to repeatedly penalties specified for “under the influ- drive (c) over a person lying on the ground; driving driving ence” reckless viola- repeatedly opponent’s strike vehicle in 66-8-113, tion of supra. and a “fight” Killings between two cars. pen- Both of these offenses have minimum such situations involve first and de- second 66-8-7, alties, not. The supra, Leg- does gree murder voluntary manslaughter. and islature could not have intended that a ve- The Legislature could not have intended killing would have the same hicular or a that killings in such situations would have a consequence than the under- maximum punishment of a fine $100 lying killing. offense involved in Com- N.M.S.A.1978; days jail. See § Herrera, supra. pare Herrera, compare supra. A must be lesser included offense “neces- case, however, facts in this do not Wingate, sarily included”. State invоlve a op- situation where the unlawful 66-8-114, supra, defines “careless vehicle, eration of the but for § driving” supra, includes supra, would be felonious. Defendant’s re- “driving carelessly” in its definition of reck- quested theory instructions stated a of a which, driving. evidence less There was if offense, definition, lesser included which by believed, supported finding would have must have necessarily been within driving opposed careless reckless driv- the charge of homicide reck- Thus, ing. there lesser offense in- was a less driving. v. Wingate, See State cluded within the of reckless offense driv- 397, 534 (Ct.App.1975). Although P.2d 776 ing, support was evidence neither requested nor the instructions Wingate, supra. lesser offense. State v. specific briefs identify “unlawful charged had been defendant
tion”,
several are
speeding,
evidence —
he would have
entitled to an
driving,
road,
wrong
on
side of
care-
on
as a lesser
instruction
less
Sections
however,
charge,
included offense. The
*7
66-8-114,
N.M.S.A.1978. These are
charge
reckless
driving;
was not
category
amounting
of an unlawful act not
which,
66-8-101,
ato
but for
felony
su-
pra,
involuntary manslaughter
would be
a lesser
offense of homi-
Is there
included
killing
where there
is a
the commission of
so,
driving?
If
30-2-3(B),
these unlawful acts. Section
and,
been
be a felony
has not
declared to
N.M.S.A.1978.
thus,
is a misdemeanor under §
supra.
maximum
for such a
penalty
It would
to
Legis-
be absurd
hold that the
killing by careless
would be no
driving
more
lature
intended all vehicular
un-
killings
penalty
than the maximum
for careless
lawful
amounting
felony,
acts not
to a
ex-
without a
It would be ab-
driving
killing.
cept where
there
violations of
66-
§§
hold
Legislature
surd to
intended that a
8-102
supra,
and
to be treated as
by careless
wоuld be treated
killing
driving
examples
penal-
misdemeanors. Two
Legislature
as a misdemeanor. The
could
ty consequences
1.
are:
the vehicular
killing by careless
not have intended that a
driving
wrong
resulted from
on the
road,
penalty
would have such
conse-
side of the
for the
result,
To
I
greater
quence.
would not be
than the
avoid
absurd
would
wrong
Legislature
side of
with-
had no intent that
the road
hold that
be lesser
offenses
included
included
to unless 8-101(B), within
tion § 66— (which
supra. unlawful acts felonies) included
do not amount
within vehicle statute the homicide
are those acts which are violations 66-8-102
§§ Deming,
Paraphrasing State (1959): To 77 A.L.R.2d otherwise, all vehicular
hold except where 66-8-
are misdemeanors violated, when supra, concerned with the country
the whole fatalities, would be highway
number result, incongruous say at a most
arrive least. 66-8-101, supra, applies
Inasmuch 66-8-
only to violations of supra, no more supra, § specific applicable
than a statute to situa would, statute, but for the
tions prosecuted involuntary
manslaughter statute. This shown Rice, cases,
following
sequence:
State v.
(1954);
Tracy, 64 N.M.
over, P.2d 264 (Ct.App.
1973).
I would affirm the conviction.