State v. MilliganState v. Milligan
The issue in this case is whether the existence of the death by auto statute,
Initially defendant was charged in a complaint with causing death by auto in violation of
The subsection of the Code of Criminal Justice under which defendant was indicted provides
a. Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.
b. Criminal homicide constitutes manslaughter when:
(1) It is committed recklessly; or
(2) A homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation.
c. Aggravated manslaughter is a crime of the first degree. Manslaughter is a crime of the second degree. [
N.J.S.A. 2C:11-4 ].
The language pertinent to our problem is: “criminal homicide constitutes manslaughter when ... (1) it is committed recklessly.” As a second-degree offense, a conviction for reckless manslaughter carries a presumption of imprisonment,
The Law Division judge held that defendant could only be prosecuted under the death by auto section of the Code which at the time of the offense charged provided
a. Criminal homicide constitutes death by auto when it is caused by driving a vehicle recklessly.
b. Death by auto is a crime of the fourth degree and notwithstanding the provisions of 2C:43-2, the court may not suspend the imposition of sentence on any defendant convicted under this section who was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit-producing drug and any sentence imposed under this section shall include either a fixed minimum term of 120 days imprisonment during which the defendant shall be ineligible for parole or a requirement that the defendant perform a community-related service for a minimum of 120 days. c. For good cause shown the court may, in accepting a plea of guilty under this section, order that such plea not be evidential in any civil proceeding. [
N.J.S.A. 2C:11-5 ].
As a fourth-degree offense at the time defendant was charged, death by auto carried a presumption of a noncustodial sentence (if alcohol or drugs were not involved),
The term “recklessly,” used in both the manslaughter section and death by auto section, is defined in the “General Principles of Liability” section of the Code as follows.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the act or his conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation. “Recklessness“, “with recklessness” or equivalent terms have the same meaning. [
N.J.S.A. 2C:2-2(b)(3) ].
Thus, the elements of manslaughter and death by auto are really identical where the instrumentality is a motor vehicle. In reaching the conclusion that an indictment may be returned for death by automobile alone, the Law Division judge acknowledged that the existence of a specific statute does not preclude
It is apparent that the Legislature has followed a consistent course of conduct since first enacting a death by auto statute. The Legislature has consistently and even in the face of a specific recommendation from the Criminal Law Revision Commission, enacted and maintained a specific “death by auto” provision. This consistency, together with the requisite standard of acting recklessly as a basis for conduct evaluation, clearly evidences that when a person recklessly operates a vehicle, a prosecution under 2C:11-5 is mandated as opposed to one under the general manslaughter statute, 2C:11-4. Except for punishment possibilities, there is no legal logic for the State‘s position in view of the legislative history. In fact, the Legislature has recently again reviewed the death by auto statute regarding a change in penalty provisions. [2C:11-5, death by auto, formerly a fourth degree crime has recently been increased to a third-degree offense. 2C:11-4, manslaughter, is a second-degree offense], and did not change the culpability requirement nor merge or repeal it is additional legislative history that the Legislature intended this statute to be a specific offense, not a general one under the manslaughter statute. [Matter in brackets in original].
Judge Martin also correctly observed that if the evidence shows “conduct with a culpability level beyond that of recklessness, the State may proceed to charge the offenses of aggravated manslaughter [
On this appeal the State argues that the language and legislative history of the manslaughter and death by auto statutes show no repugnancy or incompatibility between them. More particularly the State argues that the Legislature‘s purpose in enacting the first death by auto statute in 1935 was to make it easier to obtain convictions, because grand juries were reluctant to indict for manslaughter, not to replace manslaughter as an indictable crime where reckless use of an automobile resulted in a death. Since the language of the original 1935 death by auto statute was codified at
Of the reported cases dealing with
In the recently-decided State v. Potts defendant was allegedly intoxicated when he drove his vehicle through a stop sign that he knew about and collided with another vehicle, killing both his passenger and the driver of the other vehicle. Potts was indicted on two counts of aggravated manslaughter under
In reaching this conclusion the judge noted that an indictment for aggravated manslaughter under
It is an absurdity to conclude that the Legislature intended to limit criminal homicide prosecutions to N.J.S.A. 2C:11-5 simply because the instrumentality causing the death was a vehicle instead of another device which in the manner it is used is known to be capable of producing death or serious bodily injury. N.J.S.A. 2C:11-1(c). [State v. Potts, 200 N.J. Super. at 493].
The judge found it significant that in State v. Parker, 198 N.J. Super. 272, 279 (App.Div. 1984), this court held that a driver who recklessly causes an accident resulting in serious bodily injury to another may be charged with aggravated assault under
If a driver who recklessly causes an accident resulting in serious bodily injury to another person may be charged with a criminal offense under N.J.S.A. 2C:12-1(b)(1), a second degree offense, as well as charged with a motor vehicle violation, does it not logically follow that a driver who recklessly causes an accident resulting in another‘s death may similarly be charged with a criminal offense carrying a penalty at least equal to the penalty imposed for causing serious bodily injury? [State v. Potts, 200 N.J. Super. at 493].
The judge in State v. Potts therefore concluded that where the reckless and drunken use of a vehicle results in homicide the State may charge either manslaughter,
The controlling principles on this subject were set forth by the Supreme Court in State v. Gledhill, supra. In Gledhill the question was whether a defendant who uttered a false or forged credit card with intent to defraud may be prosecuted under the general forgery statute, then
In our view, the word “inconsistent” as used in N.J.S.A. 2A:111-50 calls for application of the same test as is applicable to a determination whether a later statute impliedly repeals an earlier one — is the subsequent statute “plainly repugnant to the former and * * * designed to be a complete substitute for the former,” Goff v. Hunt, 6 N.J. 600, 606 (1951), so that it is impossible to give the two concurrent operative effect? Two statutes are not inconsistent merely because they overlap in prohibiting the same act. Both laws “should be given effect if reasonably possible. * * * The legislative intention to repeal must be manifest; the language must admit of no other reasonable interpretation.” State v. States, supra, 44 N.J. [285] at 291].
Applying that test we are satisfied that the provisions of the forgery statute are not inconsistent with the provisions of the credit card statute section, N.J.S.A. 2A:111-43.
Specific examples of the application of this principal include State v. Cox, 150 N.J. Super. 599, 606-608 (Law Div. 1977), aff‘d 160 N.J. Super. 28 (App.Div. 1978), which involved the general fraud statute and a specific statute dealing with electric meter tampering; State v. Drake, 79 N.J. Super. 458, 462 (App.Div. 1963), which involved the general statute prohibiting obtaining money by false representations and a specific statute proscribing false statements in connection with obtaining unemployment benefits; and State v. Johnson, 67 N.J. Super. 414, 419-422 (App.Div. 1961), which involved kidnapping and abduction. In each of those cases the courts found no inconsistency in the overlapping statutes and held that prosecutors could proceed under either.
The principles enunciated in State v. Gledhill, however, do not undercut the precedential value of State v. Bott, supra. There the Supreme Court reversed a trial court‘s denial of defendant‘s motion to dismiss an indictment under the general receiving stolen property statute and held that an indictment for receiving a stolen motor vehicle could only lie under the specific statute dealing with such conduct. After reviewing the legislative history of the two statutes, the Court stated
In view of all the circumstances discussed, we believe the Legislature consciously and deliberately established the offense of receiving a stolen motor vehicle knowing it to be stolen, as a separate and distinct crime from N.J.S. 2A:139-1. The omnibus language of N.J.S. 2A:139-1, which on its face would seem to be
broad enough to encompass receiving stolen automobiles, dates back at least to 1796, thus long antedating such vehicles. With the advent of automobiles in substantial numbers by 1921, and their unusual appeal as an object of theft, the Legislature by the clearest kind of implication withdrew the associated offense of knowingly receiving stolen vehicles from the almost unlimited scope of the ancient statute, and undertook to deal with it independently and punitively in a manner designed to deter its particular public evil. See State v. Hotel Bar Foods, 18 N.J. 115, 128-129 (1955); Goff v. Hunt, 6 N.J. 600, 607 (1951). The maximum punishment that can be imposed for violation of the omnibus receiving statute is seven years imprisonment or a $2,000 fine or both. The maximum prescribed for violation of N.J.S. 2A:139-3 is ten years imprisonment or a $5,000 fine or both. Thus the legislative will could be frustrated by indicting an accused under N.J.S. 2A:139-1. Such an indictment would prevent imposition of the longer sentence provided under N.J.S. 2A:139-3. Accordingly, we hold the view that the charge of knowingly receiving a stolen motor vehicle must be prosecuted under the specific statute, N.J.S. 2A:139-3, and that an indictment under N.J.S. 2A:139-1 is technically objectionable. [53 N.J. at 402].
From this we see that the Court thought important not only the fact that the Legislature treated stolen motor vehicles separately but that a primary consideration in the Court‘s mind was possible frustration of the legislative will by prosecuting such offenses under a statute which carried lesser penalties. The distinction drawn by the State in the present case may appear to be well taken because death by auto carries a less severe penalty than manslaughter, but upon closer examination of
In our view both the legislative history of the death by auto statute and the probable results of prosecuting such a crime as manslaughter under
As pointed out by the trial judge in this case, before 1935 persons causing death by careless driving were charged with manslaughter. Note, “N.J. Reckless Driving Statute — Wantonness“, 6 Rut.L.Rev. 466 (1952). An example of this may be found in State v. Blaine, 104 N.J.L. 325, 327-328 (E. & A. 1928), where the former Court of Errors and Appeals stated
In this second class of cases the rule is a broad one, as it regards as criminal negligence any act or omission done or left undone, as the case may be, in reckless disregard of the life or safety of another.... Such negligence is often described as “gross” negligence, the word “gross” in this collocation implying
an indifference to consequences.... Such negligence may be, and often is, the result of intoxication, but may well exist without it. [Id. at 327-328].
In 1935 the Legislature enacted New Jersey‘s first death by auto statute, as “A Supplement to an act entitled `An act for the punishment of crimes’ (Revision of 1898), approved June fourteenth, one thousand eight hundred and ninety-eight.” L. 1935, c. 282. In a 1964 opinion Judge Goldmann described the legislative history of this provision as follows
An examination of the legislation which led to R.S. 2:138-9, now N.J.S. 2A:113-9 is not inappropriate. The statute was the result of Senate Bill No. 77 of the 1935 Legislature whose purpose, set out in the Statement accompanying the bill, was to change the designation of the crime of manslaughter to “involuntary homicide” in vehicle cases, and to make the penalty lighter than for manslaughter, “in order to overcome the reluctant on the part of juries to indict and convict in cases of death by vehicle.” The act was intended to make it easier to obtain convictions in such cases and to act as a deterrent to reckless operators of vehicles. The legislation was proposed by the Commissioner of Motor Vehicles. See the 28th Annual Report of the Commissioner to the Legislature for the year 1933 (State Library 1974.901 M71). As originally introduced, the bill provided that any person who, by operation of any vehicle “in a culpably negligent manner, but not willfully or wantonly, occasions the death of another person” is guilty of the crime of involuntary homicide and, upon conviction, shall be punishable by a prison term not exceeding three years or by a fine of not more than $1,000, or both.
After a period of study, the bill was supplanted by a Committee Substitute which read, simply, that “Any person who shall cause the death of another by recklessly driving any vehicle shall be guilty of a misdemeanor.” (Italics ours) The change from driving in a “culpably negligent manner” to “recklessly driving” indicates the trend of the legislative thinking.
The Second Official Copy Reprint of the Committee Substitute added a proviso that it shall be unlawful to use or offer in evidence, in any civil action brought to recover damages arising out of the fatal accident, the record of any judgment of conviction obtained under the proposed act. The Third Official Copy Reprint of the Committee Substitute replaced the phrase “by recklessly driving” with the language “by driving any vehicle carelessly and heedlessly in willful or wanton disregard of the rights or safety of others.” This became the language of L. 1935, c. 282, and was carried over into the Revision of 1937 as R.S. 2:138-9, predecessor of the present statute.
The history of Senate 77 shows that the present language stems from the Legislature‘s concern with reckless driving resulting in death, transmuted by the Committee Substitute into driving “carelessly and heedlessly in willful or wanton disregard of the rights or safety of others.”
[State v. Donley, supra, 85 N.J. Super. at 133-135; emphasis in original].
We note that the description of the elements of the crime both before and after the passage of the death by auto statute in 1935 are remarkably similar. Compare the statement of the Court of Errors and Appeals in State v. Blaine, supra, 104 N.J.L. at 328, that gross negligence in a manslaughter prosecution implies “an indifference to consequences,” with Justice Brennan‘s statement in 1953 that
The offense condemned by R.S. 2:138-9 may be committed by the driver of a motor vehicle who causes the death of another when there inheres in his driving the high probability of causing harm because of conditions known to him which actually impair, or potentially have the capacity to impair, his faculties for vigilence and care.... [C]onduct which otherwise would be merely negligent becomes, by reason of reckless disregard of the safety of others, a willful or wanton wrong. [In re Lewis, supra, 11 N.J. at 221-222].
In the codification of the statutes, R.S. 2:138-9 was carried over in its entirety into
While we appreciate the practical value of the special provision for vehicular homicides, we think it to be unnecessary as the Code is drawn. The separation from manslaughter is accomplished by treating criminally negligent homicide as a distinct offense of lower grade. If the evidence does not make out a case of criminal negligence, we see no reason for creating liability for homicide, as distinguished from any traffic offense that is involved. [Id., Vol. II: Commentary at p. 167].
The Legislature, however, did not accept the recommendation of the Commission, and instead of adopting a provision covering criminal negligence, reenacted
Since the term “recklessly,” added to the death by auto statute in 1981, is the same term used in the manslaughter statute,
Finally, as to the State‘s suggestion that defendant‘s conduct was more aggravated and culpable than “recklessness” in the present case, we observe that the standard of conduct proscribed in both the death by auto statute and the manslaughter statute is identical; that is, “recklessly.” The true difference in culpability lies in the distinction between recklessness, as used in the manslaughter and death by auto statutes, on the one hand, and recklessness “under circumstances manifesting extreme indifference to human life,” as set forth in
We envision that the Legislature intended that the degree of risk in reckless manslaughter be merely possibility of death. In aggravated manslaughter, however, the additional element that death be caused “under circumstances manifesting extreme indifference to human life” elevates the risk level from a mere possibility to a probability.
See also State v. Parker, 198 N.J. Super. at 280-281. We further note that the prosecutor charged the grand jury on the law of aggravated manslaughter but that the grand jury chose
We affirm the dismissal of the indictment brought under
Notes
“Section 2C:11-5. NEGLIGENT HOMICIDE.
a. Criminal homicide constitutes negligent homicide when it is committed negligently under circumstances manifesting extreme indifference to the value of human life.
b. Negligent homicide is a crime of the third degree.”