State v. Sodergren

Wyoming, Petitioner, STATE SODERGREN, Barry Respondent.

No. 83-110.

Supreme of Wyoming. Court

June

Harry (argued), E. Leimback and Susan Overeem, Casper, respondent; K. for Ger- Laramie, (argued), ald M. Gallivan amicus curiae. ROONEY, C.J., THOMAS,

Before and ROSE, CARDINE, BROWN JJ. ROONEY, Chief Justice.

This matter is before us on a Writ of presented Certiorari. issue Peti- tioner is: dismissing “Did the trial court err in jurisdiction information for lack of main- taining respondent could not be prosecuted involuntary manslaughter involving a vehicular homicide not al- cohol?” Respondent adds as an issue: “Does a writ of certiorari lie to review dismissing the district court decision charges based on subject a lack of mat- jurisdiction?” ter questions We answer both in the affirma- tive, perimeters but set some with refer- one, remanding ence to the second the case proceedings. for additional Barry Sodergren (Respondent) was charged involuntary with two counts of manslaughter August for the 1982 ve- Evelyn hicular deaths of Mia L. Olsen and Olsen. After bound over to the dis- court, Respondent trict filed a motion to dismiss, alleged based on an subject lack of jurisdiction matter in the district court. granted The district court the motion and case, explaining dismissed the in a decision letter that the vehicular homicide statute (§ 31-5-1117, W.S.1977, infra) and the in- manslaughter (§ voluntary 6-4- 107, W.S.1977, infra) prescribe substantial- ly the same conduct with penal- different (one being felony ties and the other a misdemeanor); they repugnant inconsistent; specific and that a later general statute controls over a statute. McClintock, Therefore, Atty.Gen., reasoned, A.G. Allen C. Respon- the court (argued), Renneisen, prosecuted Johnson dent John W. must be under the vehicu- Gen., Attys. Sr. Asst. and Michael L. lar Hub- homicide statute and not under bard, Gen., statute, Atty. petitioner. Asst. thus district try through did not have of motor vehi-

court cle.” case.1 Denying Ap- “carnage highways”

This entered its Order on the can lead Exceptions speculation plication prop- to File Bill of on June as whether or not 8, 1983, Granting and its Order Certiorari er and in- reasonable classification was on June voked when a distinction made relative involuntary

to homicide on the basis i.e., death, instrument used to cause the MANSLAUGHTER CHARGE distinguished club, motor from a vehicle aspects We must address two of this etc., knife, penal- poison, gun, with a lesser (1) relationship issue: between ty attaching to the use of instru- one of the manslaughter statute and vehicular ments.2 (2) statute, homicide and the constitutionali- 31-5-1115, W.S.1977, provid- In ty of the homicide statute. vehicular ed: “(a) any person When the death of en- (1) year proximate sues within one aas relationship The confusion over the be- injury driving of received of by result gone the two has on for tween statutes any disregard vehicle reckless Cantrell, many years. others, person safety operating of so (1947), a 186 P.2d 539 vehicular death negligent guilty such shall be vehicle of alcohol, negli- involving said that we homicide. re- gent impliedly homicide did not “(b) person negligent Any of convicted manslaughter peal involuntary statute. punished by imprison- homicide shall be However, starting in in a line of cases (1) year not more than or ment for one State, Wyo., 562 P.2d 1287 from Thomas v. thousand fine of not more than one State, (1977), through Bartlett Wyo., ($1,000.00), fine or dollars both to Lopez (1977), P.2d 1235 and then imprisonment.

State, finally P.2d 157 “(c) li- The director shall revoke page held 160: * * * “ permit any to-drive nonresi- cense or homicides, vehicular that all any person operating privilege dent of voluntary short of murder and man- negligent convicted of homicide.” exclusively slaughter, prosecutable § 6-4-107, statute, § 31-5-1115, manslaughter a violation W.S.1977. W.S.1977, provided: of this to We overrule all decisions ” * * * contrary. unlawfully any human “Whoever kills malice, im- expressed or being without Highway 7A Am.Jur.2d Automobiles plied, voluntarily, sudden upon a either § 340, states, p. with reference Traffic involuntarily, heat or passion, homicide statutes: to vehicular act, “ or of some unlawful commission They product compara- are the neglect care- by any culpable or criminal prompted by the tively legislation recent lessness, manslaughter, and guilty is highways frequency tragedies on imprisoned penitentiary shall be difficulty obtaining convic- and the (20) twenty years.” than more general stat- tions of motorists under homicides, being juries suggestion to As a result of our on loath utes area, it legislature clarify its in this ‘manslaughter’ intent attach onus responded person amendments causing the death those been held that motor vehicle and the involun- Both the vehicular homicide 1. 2. deadly dangerous tary here or constitute a instrument Caldwell, substantially crimi- weapon, e.g., amended new were S.C. July on into effect nal code went S.E.2d 259 infra. See statutes, “(b) Whoever, except when the violation causing both them read as fol- culpable crimi- neglect of law involves or lows: carelessness, unlawfully nal and uninten- 6-4-107, (Cum.Supp. Section W.S.1977 tionally, disregard but with a conscious 1979): others, death causes the unlawfully kills “Whoever human in the person engaged of another while malice, expressed or im- without law violation of state or ordinance voluntarily, upon a plied, either sudden applying of a or use involuntarily, passion, but in heat of traffic, regulation vehicle or to the act, of some unlawful the commission relating except those laws ordinances provided in W.S. except as (a) forth in conduct set subsection by any culpable neglect or criminal care- section, guilty of homicide vehi- lessness, manslaughter, guilty proximate cle when the violation imprisoned penitentiary shall be cause of death and conviction there- (20) years.” twenty not more than of, fined not than two shall be more ($2,000.00) impris- or thousand dollars 31-5-1117(a), (b), (Cum- W.S.1977 Section county jail oned for not more than the Supp.1979): (1) year, one 31-5- both.” Section “(a) Whoever, except when violation 1117(a), (b), (Cum.Supp.1982). W.S.1977 neglect culpable law or crimi- involves Petitioner, Wyoming, argues the State of carelessness, unlawfully and nal uninten- that were 1979 and amendments tionally, disregard conscious but with a passed as change to the law it existed after others, safety causes the death Lopez, supra, (i.e., change holding to engaged person in the of another while deaths, all murder that vehicular short of state law ordinance violation voluntary and to be were or use of a applying charged not as vehicular homicide and is regulation vehicle or to the traffic involuntary manslaughter). Petitioner ar guilty by of homicide vehicle when the gues presumed an that it is that when proximate is cause of death. violation existing stat amendment is enacted to “(b) Any person guilty homicide found existing in the change ute that state some not more than vehicle shall be fined of the law was intended ($2,000.00) or im- two thousand dollars make such amendment should endeavor to county jail prisoned not more State, effective, P.2d Brown v. Wyo., 590 (1) year, one or both.” than (1979); that it is not reasonable aggravated legislature In 1982 the added law to legislature that would enact a § DeHerrera already law, 31-5-1117 that vehicular homicide to so declare what Herrera, (1977); Barry at the time Soder- it read follows pre involuntary man- gren charged was with and that amendment statutes change existing sumes an intention to slaughter: give law and the courts should endeavor “(a) Whoever, driving while vehicle amendment, some effect to Stolldorf v. intoxicating under the influence of either Stolldorf, Wyo., 384 P.2d substance, liquor or a controlled both, degree to a combination of Respondent argues that the amendments safely incapable driving him passed bring renders into line were vehicle, per- law, of another causes the death if this not the case was aggravated intent, homi- guilty shall be to accom- son then the failed vehicle, result, plish any conviction there no dis- cide other thereof, punished imprison- cernible between the standards shall be distinction disregard of oth- more penitentiary ment “reckless disregard the safe- ers” “conscious twenty (20) years. than Section W.S.1977. § 6-58, questioned portion of ty of others”4 which were the substantive and be- homi changes 31-232(a) between 1977 vehicular penalty provided cause one hand and the 1979 cide statute on the less, substantially we must hold homicide statutes on the and 1982vehicular repugnant two statutes are these other. conflicting portion insofar as the latter involuntary manslaughter statute is earlier, This court had held in State § 31-232(a) concerned and that therefore Thomas, supra, opera that there was no repeal implication phrase does the last distinction between the standards of tive applied 6-58 insofar as it “culpable neglect or criminal carelessn by negligent operation disregard and “reckless of the safe deaths occasioned ess”5 ty Thomas, of others.” In of a motor vehicle.” 562 P.2d at 1291. was: aside,6 Legislative ques- intent one of the § 31-232(a) “Did [vehicular homicide] tions in this case thus must be whether the impliedly and earlier related enactments reasoning of this court in Thomas and re- [manslaugh- repeal part 6-58 applicable lated cases is under the statutes states, ter], by any culpable ‘or Respondent in effect at the time carelessness,’ neglect or criminal insofar Or, words, charged. in other do the two resulting from the as it affects deaths question provide pun- statutes in different operation of a motor vehicle?” they ishments for identical acts and are reaching holding repugnant therefore and inconsistent? that the conduct which is made crimi- said so, And, if which controls? § challenged portion 6-58 nal favored, “Repeals by implication are not careless- [manslaughter] has as an element 543; Cantrell, supra, v. 186 P.2d at State gross implying an indiffer- ness which is apply this court has not hesitated to consequences: ence to State, proper Longacre this in a ‘ * * * “ “gross negli- the term and 832, 834; City 448 P.2d Blount v. something gence” means more than 294, 296; Laramie, Wyo., 510 P.2d negligence. It means wanton- mere Snow, Wyo. Tucker v. State ex rel. disregard ness and the conse- If 251 P. 465. the statutes ensue, and indif- quences which together they if are cannot stand rights that is ference to the of others relating repugnant virtue of (Em- equivalent intent. to a criminal are directed at a dis- subject same phasis supplied.) [Citations.]’ object, with the same tinct offense * * * discussing gross negli- “Also when Cantrell, stand, earlier cannot gence it was said: Territory, 3 supra. In Haines v. ‘ * “ * * In eases the courts of civil 8, 11, recognized 13 P. negligence state define it as such specific statute controls rule that a later disregard hu- as evinces a reckless general statute.” Thomas v. over injury.’ (Emphasis bodily man life State, supra, 562 P.2d at 1290. 1290. supplied.)” 562 P.2d at State, supra, later said Bartlett v. 31-232(a) We proscribes

“Because substan- at 1241: does the 569 P.2d tially the same behavior as author, analyz- Case Notes (Cum.Supp.1979 6.One law review 4. Section W.S.1977 State, legislative supra, Cum.Supp.1982). ing refers to Thomas v. intent as follows: neglect" "culpable and "criminal The terms " * * * Determining specific legislative in- proscribe synonymous be- are carelessness" particular law is somewhat akin tent behind a ordinary more than havior which is monster; searching for the Loch Ness sub- culpable negligence is criminal or but which lurking merged, statute, surface of the beneath the State, Wyo., character. Brown might then the intent be there—but Thomas, (1983); supra; State v. ” * * * Notes, probably again, not. Case McComb, Wyo. P. 41 A.L.R. 717 (1978). Land & Water L.Rev. “ * n n State, supra, Thomas v. logic As judge the district court our task is to determine if the statutes holdings. accordance with our former together, they can if repug- stand are There is no discernible difference between relating nant virtue of the same disregard” standard of “reckless subject and are directed at a distinct (which was held equivalent to be the object. offense with the same “culpable carelessness”) neglect or criminal Cantrell, at 542. We [186 P.2d] disregard” and “conscious which is used in approach full with a realization that re- “unlawfully the context of and unintention peals by implication are not favored. ally” doing proscribed by that which is * * ”* State, supra. Thomas v. Therefore, vehicular homicide statute. if only aspect issue, were of this standards the statutes at issue in uphold would ruling. district court’s following: Respondent this case charged, complaint, in the criminal “ * * * killfing] with two counts of a hu II n '* n express man without malice However, the aspect second of this implied, by culpable neglect or criminal issue constitutionality involves the of the carelessness, W.S.1977, in violation of vehicular homicide view of the * * court, 6-4-107 V’ The district in its ambiguity and internal inconsistency of 16, 1982, Decision Letter of November (b) 31-5-1117(b) subsection of it. Section phrases as: pertinent read in part: “* * * [Wjhether charge can be “Whoever, except when the violation of brought Statute, Manslaughter under the culpable law involves neglect or criminal § 6-4-107, involving W.S. in a case not carelessness but with a conscious driving under the influence or whether disregard safety of others *.” prosecutions must be restricted to “culpable neglect As or criminal careless- penalty the misdemeanor 31-5- equivalent ness” is to “a conscious disre- 1117(b), which would remove the offense gard others,” it is difficult from the this Court. comprehend you how can have one “ex- cept” legisla- when other exists. The judge goes say: The district court on to ture has created an element of the crime argues higher “The State that a level of and then cancelled out that element. The culpability required under man- presumed cannot be to intend slaughter statute, where the standard is remaining the elements in the act to consti- involving culpable neglect or criminal crime, i.e., tute a death caused an unin- carelessness, opposed as to the vehicular tentional violation of a state law or ordi- statute, requires homicide a con- applying operation nance or use of a disregard safety scious of others. traffic, regulation vehicle or to the such meaningful There is no distinction be- improper parking, failure to have license Rideout, In tween the two. 450 plate place, simple negli- act of P.2d the Court found that there was gence relative to a state law or ordinance operative distinction between ‘careless concerning operation or use of a vehi- disregard of others’ and the obviously cle. The statute is unclear on its negligence necessary sup- definition of susceptible face. It is of more than one port manslaughter conviction. In the meaning. State ex rel. ambiguous. Thomas the Court found that there Albany County Weedand Pest District v. meaningful was no distinction between County Board Commissioners Alba- disregard’ ‘culpable neglect ‘reckless ny County, Wyo., (1979). 592 P.2d 1154 Similarly, or criminal carelessness.’ there is no reason to believe that When ambiguous, a statute is distinguished by offense general principles the use of the court resorts to of statu ” language disregard.’ tory ‘conscious construction in an effort to ascertain

527 legislative intent. Depart- necessary state of mind for a violation of Barber, ment Education v. Wyo., 649 the statute would be thwarted. Sanches, (1982); P.2d 681 and Sanches v. Since the statute is ambiguous and (1981). Wyo., so, 626 P.2d 61 doing stands, inconsistent as it inappli and thus give word, must every effect to clause and situation, given cable to a and since it can and, possible, if sentence construe the stat- given not be coherent meaning without part ute so that no inoperative will be thwarting intent, legislative obvious Equalization State Board of superfluous. there is no declaring alternative to the en Inc., Cheyenne Newspapers, v. Wyo., 611 § subsection, tire 31-5-1117(b), as it exist (1980); P.2d 805 Albany State ex rel. deaths, ed at the time of the to have been County Weed and Pest District v. Board inoperative. unconstitutional and County Commissioners Albany County, supra; Although City Haddenham v. we do not ordinarily in Laramie, quire Wyo., (1982). 648 into the Leg- constitutionality P.2d 551 of a statute motion, on islative our own primary intent is the we do consideration so where a case ascertaining completely cannot be meaning and effectively of a statute. dis Sanches, posed Sanches v. of without Longacre v. supra; inquiry decision. State, Wyo., Gorrell v. City Casper, Wyo., (1968). 448 P.2d 832 Statutes (1962); Markey Connelly, Wyo., given meaning are not to would (1962); and Eastwood Wyo P.2d 964 nullifying effect of their ming Highway Department, Wyo. 247, they if capable interpreta other State, tion, Hayes (1956). Wyo., P.2d 818 Such 599 P.2d 558 is this case. (1979). But statutes are not to inter Requirement degree of a reasonable preted produce In re absurd results. certainty legislation, especially in Romer, (1968); Wyo., 436 P.2d 956 Wool law, is a well established element ley Commission, Highway Wyo., State, process. due Sanchez v. Thomas, (1963); 387 P.2d 667 and Huber v. (1977); and State v. Gallegos, 567 P.2d 270 (1933). Wyo., 384 P.2d 967 Applying principles these 31-5- Respondent Inasmuch could 1117(b) itas was in effect at the time of the properly prosecuted not be under 31—5— deaths, conflicting the two clauses cannot 1117(b), dismissing the court erred in given both be effect inasmuch as such is prosecution subject juris for lack of matter very Also, cause ambiguity. as al- prosecution diction on the basis that noted, ready both clauses cannot be disre- proper only under 5—1117(b). 31— garded without an absurd result and one prosecution statute under which could obviously legislature. not intended manslaughter be had was the statute under If the first clause superflu- were declared Respondent charged. ous, i.e., “except if when the violation of culpable neglect law involves or criminal CERTIORARI carelessness” were declared to be null and void, legislature the obvious intent of propriety to of a writ of cer- have the vehicular homicide statute be vio- tiorari in matters such as this was decided City lated when such is Mengel, Laramie v. involved would be Heiner, thwarted.7 If the second and in clause were de- P.2d 340 i.e., superfluous, clared if (Wyo.1984). with a “conscious P.2d 478 The fallacies there disregard safety my specially concurring opinion others” were set out in void, regard declared to be null and dissenting opin the obvious to Justice Rose’s legislature equally applicable intent of the to ion are dissenting to his 31-5-1117(b), “Culpable neglect (Cum.Supp.1982). or § criminal carelessness” is W.S.1977 statute, language of the vehicular homicide if, (20) twenty yéars, while case not more than in this case. The issue in this opinion driving in violation of question and is a motor vehicle involves a constitutional However, 31-5-233, great import. unlawfully we do serve he causes the public W.S. driving the bar that will exercise our person notice on of another while a death only in un- grant discretion certiorari is the vehicle the violation motor upon circumstances and rare occa- usual proximate cause of the death. sions. “(c) The division of motor vehicles shall permit license to drive and revoke the or changed the statutes privilege of operating the nonresident a new the enactment of here involved person aggravated any convicted It has us that it is criminal code. advised homicide changes in the homicide vehicle or of considering appropriate 6-2-106, recognition a new enactment Section W.S.1977 code in vehicle.” “shaking magnitude (June Replacement). of its will need some down.” § "Recklessly” as 6-2-105 is used de- (June 6-l-104(a)(ix), W.S.1977 changes pertinent fined

The recent in the two Replacement) them to as follows: cause read: “ “(a) ‘Recklessly’ person guilty A is means done with a con- unlawfully disregard human if he kills of a substantial un- scious malice, ei- expressed implied, person’s without or justifiable risk that the conduct ther: result in the harm he is accused of will

“(i) causing.” Voluntarily, upon heat of a sudden passion; or negligence” as used 6-2-105 “Criminal “(ii) Involuntarily, but: 1—104(a)(iii), defined W.S.1977 is 6— “(A) In the some unlaw- (June Replacement) commission of as follows: “ except provided in W.S. 6-2- ful act negligence’ great means ‘Criminal 106; or standard excessive deviation from that “(B) Recklessly. reasonable, prudent person care which a “(b) Manslaughter felony punishable same or similar would exercise under the penitentiary by imprisonment a substantial and circumstances avoid (20) twenty years.” more than Sec- unjustifiable risk of harm.” (June 1983 Re- tion W.S.1977 31-5-233, W.S.1977, referred to Section placement). § 6-2-106, it a crime to drive a makes (b) “(a) Except in subsection the influence of motor vehicle while under section, unlawfully person who of this intoxicants or controlled substances. negligence causes the and with noted distinction As be- person operating of another while death “culpable neglect or criminal care- tween guilty vehicle a vehicle homicide lessness,” disregard “reckless safe- and, thereof, shall be conviction others,” disregard for ty of “conscious more than thousand dollars fined not two others,” negligence,” “gross “dis- county ($2,000.00) imprisoned ensue,” consequences regard of (1) year, more jail for not than one “wantonness,” rights “indifference to Evidence of a violation of both. criminal in- equivalent others that law or ordinance state ajpplying disregard tent,” “evincing a reckless operation or use of a vehicle or bodily injury,” or is de human life minimus traffic, except for evidence regulation of purpose defining a criminal act. for the 31-5-233, is admis- a of W.S. of violation sub- any prosecution under this sible no distinction There seems be between present “recklessly” section. man- used negli- “criminal slaughter statute “(b) guilty aggravated person A used in vehicular punished gence” as homicide by vehicle and homicide shall present The statute imprisonment penitentiary statute. a or operation result- or use of vehicle consideration of death precludes the driving regulation Excepted the influence as the from ing from under traffic.” act, 31-5-1117(b), W.S.1977, of an unlawful does in- commission are those resulting from “reck- not do so for death stances “when the violation of law involves enacted Both statutes were less” action. culpable neglect or criminal carelessness.” at the same time. legislative some homicides A intent that flowing operation from the of a motor vehi- lan- Finally, is directed to the attention prosecuted under the man- cle could be (b) of guage in the current subsection slaughter from these statute is discernible § 6-2-106, supra, which indicates that one exceptions. reciprocatory thereunder if the prosecuted could not pedestrian of a resulting is of a death Maine, concededly Supreme Court of provides passenger in a motor vehicle. examining statutory a different frame- by one “while is committed that the crime work, proscribing that a statute concluded causing death of a driving a motor vehicle” “depraved required homicide indifference” driving a motor vehicle.” “person while objective an evaluation of the defendant’s legislative eyes person. to ascertain conduct in the of a reasonable be able We current stat- requir- relative to these two other crimes intent court contrasted so, required now to do ing We are not Maine statute utes. reckless action which the helpful in may be obtain- disregard” but our comments part defined as a “conscious legisla- expression of ing unquestioned The court stated that “conscious risk. per- problem intent on the mind, tive disregard” subjective state of is a long relative to these statutes. sisted for so objective inquiry re- and that while the ex- legislature to make such urgeWe quired no of the defendant’s sub- evidence pression. mind, the other offenses jective state of Goodall, Me., 407 A.2d 268 did. and remanded. Reversed Justice, THOMAS, concurring. specially legis- persuaded I am that returned agree that this case must be in the contem- I intended that result lature Barry Soder- district court so to the poraneous adoption to the of amendments manslaughter. am gren can be tried and the man- statute vehicular homicide way to appropriate leg- not satisfied that and that slaughter statute is to declare achieve that result adjusted the 1982 intent was not islative § 31-5-1117(b), W.S.1977, is unconstitution- negligent homicide stat- amendment to ambiguous and in- than al. Rather Thus, match the which would ute. conduct inconsistent, can be ternally the statute defining Jury Instruction Wyoming Pattern manslaughter stat- together read careless- “culpable neglect” and “criminal W.S.1977, ute, end that to the flagrant char- ness,” gross or that is of “a honor our may stand. This would both acter, show wantonness such as would inquire into the consti- usual reluctance recklessness, demonstrate and would own motion. tutionality of a statute on our life or the disregard of human reckless give effect to time it would At the same others, to con- an indifference legislature. intention of the intent” equivalent to criminal sequences jury. evaluated objectively would be legis- me that the very clear to It seems of “con- Conversely subjective evaluation the reach of 6-4- excepted from lature safety of others” disregard scious W.S.1977, pro- acts “as those unlawful or ordinance violating a state law while The unlawful 31-5-1117.” in W.S. vided of a motor vehicle relating are those acts in order to convict of required would be phrase, “but encompassed verdict would negligent homicide. That safety of disregard of the conscious awith * upon evidence of the to be based others, engaged in the violation while of mind. subjective state applying defendant’s law or ordinance state 530 intent, legislative ad- dismissing and does offer some judge this case The district Rideout, Wyo., v. taking 450 Even State vantage

relied to the defendant. (1969), that because Balsley v. 452 and concluded holding P.2d into our account case that “careless in that ruled State, Wyo., 668 P.2d 1324 this court it seems was not disregard the of others” of prosecution manslaugh- to me in a that negli- distinguishable from the definition ter if evidence the commission the disclosed necessary support manslaughter gence involving operation of an act the unlawful not now the offenses are distin- conviction vehicle, of a and there was evidence motor language “con- guished by the use the subjective the mind of the de- state of the disregard.” Recognizing hold- scious con- fendant which would demonstrate involving the man- ings of our earlier cases disregard, defendant scious the would negligent homi- slaughter the an on of- to claim instruction the entitled statute, those cases con- we were in cide negligent In an fense of homicide. repeal. Be- sidering concept implied the matter then would be left to instance the contemporaneous action the cause of jury to determine which accept legislature I would not those had the defendant violated as matter instant case binding precedents my judgment this fact. would be statutory a different which assumes satisfactory approach. legislature. The scheme articulated agree I that case should be reversed unconstitutionality is different question of district court for trial remanded implied repeal, and as from the statute, I manslaughter under opinion indicate majority would foregoing so under the rationale would do implied from a conclusion of re- foreclosed negligent declaring rather homi- than peal. provision cide unconstitutional. operation my It is view when the culpable neglect involving a motor vehicle causes a death the or criminal carelessness Justice, ROSE, dissenting from ma- prose intended that the case be joining in Justice CAR- jority opinion statute,

cuted under dissenting opinion.1 DINE'S though might the evidence disclose an even bar, would dissent from In the case I law or ordi incidental violation a state he holds as authors what the Chief Justice applying to the or use of a nance opinion. I hold majority But would regulation traffic. The vehicle or to the Selig, v. with him when State he wrote legislature adopted the method used (1981): Wyo., P.2d 788 635 phrase disregard” in “conscious order exceptions “A is the exclusive bill of pitfalls which the earlier deci to avoid prosecution to seek review for the means present. The sions of this court seem to ruling during the adverse made proof under the two statutes elements Heberling, P.2d trial. 553 same, exactly the and conse would not be Benales, (1976); Wyo., 365 1043 proscribe substantially quently they do not Ginther, 53 (1961); 811 State, Alas P.2d the same conduct. See Bell v. rel. (1938); State ex Wyo. 17, P.2d 77 803 (1979); and State Modi ka, Cornwell, P. Gibson v. ca, (1977). 567 P.2d Hawaii statutory pro- now a Recognizing viability both statutes is requirements statutory ceeding, and approach acknowledging the better certiorari, written, opinions majority dissenting opinion reason of the 1. Since this 83-83, Heiner, my position the case at bar is no No. decided Heiner and State May therefore, herewith, and, state, therefore, published. longer been I I will the law of dissenting support position look merits the instant matter with some of the same and with joining took Heiner in his and I with Justice Cardine dissent reasons. additional will vote with the other members of hereafter petition each for a the merits of court on though opinions Even I hold these writ of certiorari. entertain writs of court has no

531 Ginther, State v. must be met. to the State of they unless Cornwell, ex rel. Gibson v. presented through here the statutory bill- supra.” of-exceptions procedure.2 And I would hold with Raper Chief Justice Cornwell, ex In rel. Gibson v. (now retired) when he wrote in State v. Wyo. (1906), P. Chief Justice Heberling, (1976): 553 P.2d 1043 Potter, speaking court, for a unanimous exceptions “A bill of only way by is the wrote: may challenge which the State and have “ n n * only It is upon compliance any ruling reviewed adverse of the dis- provisions with the statute in trict prosecutions. court exceptions] that [bill Benales, Wyo.1961, State v. jurisdiction court obtains to review Ginther, 811; State v. Wyo. any ruling the District Court ad then, 77 P.2d 803. Even verse to the state prosecu in criminal 7-291, W.S.1957 W.S. [now tions.” added.) (Emphasis 85 P. at 979. 1977]: “ judgment ‘The of the court bar, Originally, in the case at the Attor- case in bill was taken shall ney petitioned General excep- for a bill of in any be reversed nor manner §§ upon through tions reliance 7-12-102 affected, but the decision of the su- 7-12-105, W.S.1977, Wyoming’s bill-of-ex- preme court shall determine the law Thereafter, ceptions statutes. and for rea- govern any may similar ease which sons which remain undisclosed —at least to pending at the be time the decision is and, petition me—he withdrew in its rendered, may or which afterwards stead, petition filed a for a writ of ” certiora- arise the state.’ request employ- ri —a which calls for the is, therefore, my judgment ap- in this appellate remedy respect ment of an peal improvi- that the writ of certiorari was exceptions to which a bill of furnishes dently granted. say for reason jurisdiction this court with and for which my opinion, previ- that it is firm Ias have implement- there is no other constitutional Heiner, in ously expressed ing authority anywhere in the contained 83-83, 15, 1984, May P.2d 478 No. decided Wyoming. criminal statutes the State that this court lacks into crimi- Stoner, proceedings Mau v. rulings nal consider trial-court 83 P. 218 proceedings infra, in criminal which are adverse discussed we held that filed, bill-of-exceptions provide: judge appoint 2. The such bill to be such shall competent attorney argue some the case Exceptions by pros- 7-12-102 "§ [W.S.1977]. against prosecuting attorney, attorney ecuting attorney; generally. shall receive for his service a fee not exceed- prosecuting attorney may excep- "The take ($100.00), ing one hundred dollars to be fixed any opinion tions to or decision of the court court, paid such and to be out of the cause; during prosecution of the and the treasury county of the in which the bill was containing exceptions upon bill taken.” shall, presented, truth, if it be conformable to the Same; "§ 7-12-104 when bill [W.S.1977]. court, signed and sealed be filed and decision rendered. record, part which shall be made a supreme opinion be of "If court shall respects governed by be in all estab- rules questions presented should be cases, decid- exceptions lished as to bills of in civil upon, they excep- ed shall allow the bill of except provided." as herein Same; tions to be filed and render a decision there- proceedings “§ 7-12-103 [W.S.1977]. on.” exceptions. on Same; prosecuting "§ 7-12-105 effect of de- attorney may present [W.S.1977]. "The supreme cision of court. exceptions supreme bill of judgment “The apply thereof, permission court in the case in to file it clerk with the which the bill was taken shall not be reversed the decision of such court affected, therein; points presented prior nor in manner but the decision thereto supreme give judge he court shall determine the shall reasonable notice to the law govern may presided who taken, at the in which the bill was similar case which trial rendered, applica- pending purpose to make such at the time the decision is his tion, supreme and if the court shall allow or which afterwards in the state.” arise charges subject mat- contemplated on a lack of for this based appellate authority ” implement- jurisdiction?’ ter 5, 2 must be Art. court under regu- rules legislatively enacted and by ed cer- propriety granting Concerning the of §5, 2 by Art. Art. as conceived and lations tiorari, say: majority the unequivocally the Mau 18.3 holds in propriety “The of writ of certiorari the the intention of proposition it was City this such as was decided matters ap- legislature rights and methods of Mengel, Wyo., 671 P.2d Laramie of 340 be left to the and peal would Heiner, and legislation implementing that —absent —a Court, No. (Wyoming Supreme P.2d 478 * * * right possessed appeal. of litigant is of 15, 1984). 83-83, May decided the exercise of this This would include in this case a constitu- issue involves authority certiorari court’s constitutional great public and is question tional of of the Su- is an instrument since certiorari However, import. on we do serve notice jurisdiction under appellate preme Court’s the that we will exercise our discre- bar §5, 3, supra n.2. Art. grant only tion certiorari in unusual upon circumstances and rare occasions.” 28, 1983, by authority of a and On June court, majority of the the Chief Justice— (a) part I with of the take issue the statutory au- again implementing without above-quoted says: conclusion which exclusory spite charac- thority and “The of a certiorari propriety writ of statutes, bill-of-exceptions teristics City as this matters such was decided jurisdiction signed and thus without — Mengel, and in Laramie v. of * * in the case at bar granting certiorari order *,” v. Heiner appended dissenting state- to which bar, because, petitioner in the case ment: (as Wyoming City the State of and not deny “I would the Petition Writ City Mengel, was the case in Laramie v. grant have voted to Certiorari and would therefore, (1983)),and, Exceptions Petition for Bill of exceptions is State’s the bill of Attorney first submitted Gen- (b) implica- appeal, avenue and with eral and later withdrawn.” possessed tion court is that this “ * * * opinion, the author majority In the grant certiorari discretion writes: those as unusual circumstances [such appeal facts presented by of this matter us on Writ of

“This is before Certiorari,” Wyoming],” the State of court cannot exercise “discre- because the identified fol- and one of issues is as jurisdiction. tion” it has no where lows: “ supra, did City Mengel, a writ lie to review Laramie ‘Does of certiorari assert, hold, majority that this dismissing the as the district court decision certiorari, necessary Wyoming corpus, as and other writs §§ and 18 of 3. Article provide: complete ap- proper and exercise its Constitution revisory jurisdiction. pellate Each of the generally; appellate Supreme 2. court "§ judges power jurisdiction. have writs of habe- shall to issue general appel- supreme any part upon peti- corpus "The shall have as the state state, jurisdiction, person late co-extensive of a held in actual tion or on behalf causes, civil and and shall have both custody, make returnable such writs superintending general control all infe- over court, supreme or before before himself courts, regulations rior such rules under judge district of the state." before prescribed by may be law.” as Appeals "§ from district courts to su- 18. Same; jurisdiction. original "§ “The preme court. original juris- supreme have court shall appeals may be error and allowed "Writs of quo and mandamus as to diction warranto of the district courts to the from the decisions officers, corpus. The in habeas all state supreme regulations may as court under such power supreme court to issue shall also added.) (Emphasis prescribed law." review, mandamus, prohibition, habe- writs of perceived tion court. It is not could writs of court would or entertain would have petitioner to decide certiorari where is the City it is here. In the arising exceptions as Laramie case, City petitioned for a attorney bill prosecuting in a crimi- exceptions we en- State —and exceptions nal without a bill —not petition though tertained were for containing same, taken and filed Where, however, certiorari. the State prescribed by the statute.” (Emphasis through certiorari, seeks relief this court added.) appellate has no since the Therefore, previously under unassailed a trial reviewing State’s method of authority court, and well-reasoned of this ruling court’s which is adverse to the State the Wyoming where State of seeks certio- way in prosecution a criminal is of the appeal,4 rari in a criminal it must be denied procedure, bill-of-exceptions supra n. 2. jurisdiction. for lack of though Even there Ginther, Wyo. 17, v. We held in 53 statutory implementing was no authoriza 803, (1938): 807 granting in City tion for Lara certiorari of accordingly “Our view the law Mengel, supra,5 mie v. granted we the writ of prosecution in a case criminal precedent under the contained in City of given by Cadle, in no this state statute Sheridan 293, 157 v. Wyo. 24 P. 892 rulings ex- method review adverse (1916).6 City In case, the Sheridan the of of of cept through the medium indicated in petitioner was the City and therefore was the cited sections bill above precluded at not seeking appel- least from [the of four exceptions proceeding], limita- with the exclusory late relief reason of the as- imposed.” (Emphasis tions there add- pects the bill-of-exceptions proceeding. of ed.) Calling up City Cadle, Sheridan v. of Ginther, upon supra, In reliance held to we said, in City supra, authority, as our we of Heberling, State v. the same effect Mengel, v. Laramie that the bill-of- Wyo., (1976) 553 P.2d 1043 and also provisions exceptions of the statute “ * ** Benales, P.2d 811 365 were applicable not an in- stance which the accused is not Cornwell, v. In State ex rel. Gibson su- charged against with an offense laws 979, pra, 85 P. at Chief said: Justice Potter Wyoming State of and this statu- “ * * * ¾ n it is obvious, think, exceptions] tory proceeding was we of [bill n * the bill n jurisdic- is the basis respect prosecu- to a not available with of jurisdiction "necessary proper no Certiorari is a writ in which such tribunal had 4. complete appellate jur- jurisdiction. exercise of its acted in excess of 10 Am.Jur. 5, 3, 5, 527, isdiction.” Constitu- Article see in 174 A.L.R. annotation 194. tion. go beyond Whether or not we should cases of that kind in face of the above men- was, necessity suggest, 5. over- for which I question." is another 278 P.2d at 273. tioned justices looked all of this I also call court. subject This statement is same criticism 271, Wyo. Afton, attention v. Town to Call of City Mengel that causes Laramie to be of which 278 prosecution, was not a opinion questionable i.e., properly while the — opinion ques- but which another of identifies rari, common-law utilization certio- tionable statement is to be found where ignores necessity certiorari-imple- court said: " menting statutory authority contemplated by * City in effect in We held Sheridan 2§§ Art. and 18 and mandated Mau v. Cadle, Wyo. a 157 P. that writ of Stoner, supra. might in which certiorari issue in some cases jurisdiction or acts an inferior tribunal has also, questionable is a 6.Which decision since jurisdiction. ex in excess See also State rel. certiorari was considered there without the im- Dahlem, Loomis v. P. 708. plementing statutory required by Art. ordinarily would not to And such writ seem statutory implementation §§ improper appeal in cases in which no Stoner, requirement articulated Mau v. judi- proceedings been from before supra, discussed infra. tribunal, quasi judicial in cases cial as at least provides of W.R.C.P. This rule court municipal court violation tion in a Citing City Sheridan filing a notice of extend the time for ordinance.” Cadle, 671 P.2d at In Bos- supra. upon neglect. appeal showing ler, timely mailed notice was Mengel, Laramie we then City of expiration received until after the went assume that had certiorari on to permitted appeal time and therefore following jurisdiction relied as we right ap- appellant possessed of a opinion City Sheri- language from the through no peal which he had lost fault of dan v. Cadle: circumstances, his own. In these a writ being a civil there seems “This not testing should issue rather than the trial giving city right provision be no discretionary court’s denial of motion to think, this court. We there- appeal to filing extend the time for the notice might fore, be issued to the writ appeal grounds on ne- excusable determine glect. ap- entertain the district peal complained of the order would, that, therefore, emphasize P. was made.” 157 at 895-896. bar, majority’s ease it is with the as- sumption possessed suggest that this court of I a moment that this do not for jurisdiction ap of in its to issue writs certiorari may never exercise certiorari spite exclusive present remedy by pellate authority under the condi Constitution, statutes, supra bill-of-exceptions statutes and case the n. tion of the approved We the authority certiorari-imple- of this state. and the fact that no other of Afton, menting v. Town Call concept place, in in following statutes are that I take (1954): opinion, 278 P.2d 270 majority issue with the and I do “ * * * question not address the which asks C.J.S., wheth- p. In 14 Certiorari assuming jurisdiction er or writ general to be ‘It seems is said: not — —the is, lawfully employed.7 a otherwise It proper party rule in a case entitled that therefore, jurisdictional context of appeal pursue some other reme- charge dy, right majority our difference that I through has lost the inad- who vertence, accident, mistake, taking may liberty have with with our unwarranted certiorari, provided Mengel City Laramie remedy by holding a there is in when of probable a showing majority opinion says: merits and free- in the case at bar also dom from fault.’ See 10 Am.Jur. propriety “The of a writ of certiorari in 531, 532, P.2d at 7.” 278 275. City matters was decided in such as this in Mengel Laramie v. State proposition, with this I would Consistent * * v. Heiner *." that, hold in the circumstances described in that jurisdiction where is conceded having problem This court is with writs right appeal statutorily authoriz- prosecutions right in of certiorari criminal ed, could and should —in the fur- this court majority now and is that the the reason upon justice therance of its discretion- —call the members —for whatever reason —have ary authority to consider utilization statutory exceptions decided bill of certiorari. inadequate appellate furnishes an remedy in in Morad, any given prosecution which would refer to Bosler Wyo., I position an adverse to the State’s (1976) decision presenting an exam- P.2d 567 course, is, by ple might announced. conceded in which writ situation reversing all concerned the defendant in well instead that whose have been utilized prosecution denying is raised district court’s order a motion will be 73(a), holding in response for an time under Rule affected this court’s extention of tion, position my applies. preserve my I See here took in common-law writ also State, concurring opinion City dissenting Men- opinion Wright in Laramie v. that, gel, supra, parame- to the effect where the specified ters Constitu- of the writ are not certiorari, while Wyoming to a writ of this is not so sition that is one of the states presented respond where we to issues to us holds to this rule the common law. excep- within the of the bill of framework In Ginther we said: tions. court to This has led the wander off generally “It seems held under the com- into the horse latitudes8 its effort country mon law as administered impress appellate its decisions bring the State not a writ of particular prosecution in whose defendant appeal excep- error or take an or have ruling. its adverse State has received right tions case criminal unless the majority pursued this course even expressly granted thereto has been though the court since lacks *.” 77 P.2d at 803. exclu- bill-of-exceptions procedure is Annot., reported rule is 91 A.L. circumstances, sive remedy these 1095, 1096, “Right R.2d prosecution Cornwell, supra, and ex rel. Gibson v. case,” writ of certiorari where it necessary the further that other reason is said: implementing the court’s constitu- general “As a prosecution rule the can- authority place tional are not in certiorari appeal bring proceedings error §§ required by 2 and 18 Art. judgment from a in favor of the defend- Stoner, v.Mau articulated dis- a criminal case in the absence ant cussed infra. statute clearly conferring right.’’ concept The bedrock this court has (Emphasis added.) ignored contemplating in the course Am.Jur.2d, To the same Appeal effect see proper its utilization of constitutional cer- § 268, pp. and Error 762-763. says tiorari tenet is the given provisions applicable I find provi- constitutional that — Constitution, statutes and case law —a sions, 3, supra say n. in this state to right court, appeal though to this even Wyoming Supreme possesses Court authorized, constitutionally may giv- not be “power” to issue writs of certiorari “in the en effect unless the constitutional authori- jurisdiction,” appellate exercise of its and, ty implemented by is statute when so however, in except and those circumstances implemented, right is exclusive and process appellate legisla- where the civil is particularity. must be followed with tively place, “power” lives in a vacu- require- um since there no constitutional long ago This court noted that the com- of such and ment for the issuance writs no right mon-law rule is that the State has statutory implementing other “rules” appeal to rulings adverse criminal unless “regulations”9 adopted. and/or have been right expressly given. 24 C.J.S. Criminal holds Law 1659 the common-law Wyoming Supreme Court has histori- rule to be: cally good reason —refused to —and “Under law generally the common ap- even consider the merits of the State’s understood and administered the Unit- peals prof- where the a criminal States, govern- ed the state federal comply appeal fered does not with the bill- error, right ment has no to a writ of-exceptions on procedure, the oft-re- of in a crimi- appeal, exceptions an or to peated ground that there is no common-law expressly nal case unless isit (State Benales, v. right appeal supra; conferred * * * ” * (emphasis add- Ginther, supra; Stoner, State v. Mau v. ed), and, supra), bill-of-exceptions statutes, §§ Benales, v. citing through supra 7-12-102 State Wyoming’s supra, n. Ginther, supra, propo- exception law, for the an to the common calms, by high pressure, light 8. Defined Third New International terized Webster’s baf- Dictionary fling as: winds.” regions neigh- in the of two belts ”[E]ither borhood of 30° N. and 30° S. latitude charac- 18, supra n. 9. Sec Art. 2 and §§ court, on he went juris- Writing of this court’s for a unanimous provide source to observe: Wyoming’s the State of diction to review rulings, abridge trial-court authority adverse criminal State “The has Benales, supra; right appeal v. su- at its dis- Heberling, v. State or extend the Ginther, supra; cases ex rel. in what pra; cretion can determine appeals Cornwell, supra. and under what circumstances Gibson taken, regulate the may be as well as Wyoming early As when Consti- Am.Jur.2d, (Appeal appeal. 4 manner of §§ 2, 18 and the Art. 3 and bill-of- tution Error), 6, pp. 536-537.” place, exceptions were It the court’s task in was Mau Stoner Stoner, supra, 83 P. at court said Mau right appeal to decide whether requires the Constitution that unless Wyoming Supreme by a Court was denied (“requirement”) appeal “as a matter of a trial statute which court’s legislature that has the right,” it is the decision would be “final” where it was appellate implementing as con- contended that the Constitution of state §§5, templated by Art. and 18 of the guaranteed appellant access to this court. We said: Constitution. We said: * «* * js wep that, settled Legislature “Since has declared that a direct constitutional re- absence of judgment of the district court shall appeal quirement, right does not * * *, important final it becomes expressly exist unless stat- conferred whether, determine under the Constitu- right judgment to have a of an ute. The state, right appeal tion of this reviewed writ of er- inferior tribunal guaranteed in all P. cases.” 83 at 218. appeal ror or is not a natural or inherent opinion The author of the Mau wrote merely right. pertains to the mode of §5, Constitution, that Art. of our judicial procedure remedy. or the Unless appellate jurisdiction defines the of this guaranteed right it is as a matter of Constitution, Legislature “ * * * attempting without to define the power pass only regulating laws not appeal manner of or the class of cases proceeding, limiting the mode of taken,” appeals may be 83 P. at right be exer- cases which remedy by appeal un- cised. The supreme and the court then held that the law, English known to the common hence by court’s is limited the follow- may England it said that in both be § 5, language: 2 ing Art. the whole matter of the United States “ n * n regulated appellate regulations review is almost en- under such rules and may prescribed by tirely by (Emphasis statute law.” add- as be law.” ed.) The court said: “ * * * expression again concept this We think the ‘under This court embraced where, Schrader, regulations may such rules and as be in 1975 in Geraud prescribed by 872, 875, denied, law’ refers to and limits all cert. 531 Wind section, powers by the Association, conferred River Indian Educ. Inc. v. words, prescribes other how the 904, 205, exercise Ward, 423 U.S. 96 S.Ct. 46 powers may regulated of these be (1975), Raper, writing L.Ed.2d 134 Justice P. limited.” 83 at 219. court, quoted for the the above rule from Mau v. Stoner and observed: It was one of the court’s conclusions in “ * * * appeal right privi- of an is a Mau that it was the intention of the fram- right.” subject that

lege rather than a ers of our Constitution supra, City Mengel, Laramie v. holds that with this court. discretionary grant or denial of certiorari is appeals provision to this court would be left to the there was no statutory for the legislature, saying: the court In appeal. dismissing appeal, we said: “ * * * provi- quite It is clear from the generally “It seems held under the com- sions of 18 and 20 the fram- Sections that law as country mon administered ers of the fundamental law intended to may bring that a writ power subject ap- leave the over the excep- or have or take appeal error an peals Legislature, to the to be exercised tions in a criminal unless the public in such and the policy manner right thereto expressly grant- has been * * * ” might people best re- interests of by ed added), (emphasis ” v. Wil- quire.’ Quoting from McClain 77 P.2d at 803. liams, 73 N.W. 43 L.R.A. S.D. noting and while that the courts of some P. at 220. permit states review limited circum- emphasizing right appeal, In stances —either case rule or statute —we though constitutionally even authorized as held that we would adhere the common tool, appellate must nevertheless be Wyoming. law (i.e., “prescribed by legisla- law” Ginther We noted in ture), the Mau court referred to an earlier statutory exception to this common-law Boulter, In re 39 P. decision appears rule which bill-of-exceptions our where court said: according to which the State’s at- “ * * * no direct constitutional [W]e torney “any take opinion or decision provision allowing appeals as a matter the court” to this court review. We cases, right except hold, then on to cite approv- went with appellate jurisdic- is clothed with that, al cases which appel- hold where an causes, tion in well as in criminal as civil right granted late and is based general and is superinten- vested with a statutes, specific such statutes are to be courts, dence and over all control inferior strictly construed not to be en- regulations under such rules and as are larged by construction. is said in 24 prescribed (Const.Wyo., law art. Law, Criminal wherein the C.J.S. p 87g § 2) *.” 39 right appeal in criminal states’ cases the court’s conclusion Mau It was discussed, that the rule common-law is as that, regu- since there had been no rules or Ginther, supra. this court identified it in promulgated lations un- encyclopedia goes on to then say §§5, Art. respondent der 2 and had n “ * * that, being it is held generally right appeal. law, derogation they of the common appellate granting rights] [statutes of Exceptions Exception Bill Is An construed, strictly and that the should Common-LawRule thereby conferred should not Ginther, the defendant enlarged by construction. [Cita cow, charged theft of a with tions.]” receiving knowing the animal to have Weathers, v. 92, State In 13 Okl.Cr. 162 stolen, property but no value of been the (1917), P. cited in Ginther prop- 239 the alleged. was had defend- was Trial and the criminal-appeals that osition guilty, whereupon found in ant a motion derogation are in of the common law must judgment of sus- arrest made and strictly construed, appealed be tained. The State and we held the Oklahoma Su- -jurisdiction preme that this court had no since Court said: Inc., recently expressed derogation-of-com- ney Enterprises, Wyo., We v. 11. the Hunter 426 P.2d mon-law rule said in speak when we 442 equivocal must clear and un- Stovall, terms, State v. (1982): 547-548 presumption for the is that change is no intended unless the statute is " * * * designed change A to com- statute the explicit." strictly mon law Maha- must be construed. 538

“ * * * exceptions] that this In many jurisdictions the state [bill of all, review jurisdiction court to right right and its obtains appeal has no of granted, appeal, right the is is adverse to where any ruling the district court of ” statutes, upon specific which stat- based prosecutions. to the state in enlarged utes are not to be construc- added.) (Emphasis 85 979. P. at tion.” 162 at 240. P. Gibson, Attorney rel. State ex In Arnold, v. 144 Ind. 42 State See also argued exception that an to General Ginther, where, N.E. 1095 cited ruling to of the court should sufficient referring similar to that to a statute preserve for this the issue court’s consider- Weathers, supra, v. it State considered contention, rejected ation. This court was said: saying: statutes, urged, deny “These it is “ * * * obvious, think, it But is we right appeal to in other the State is the like bill a case enumerated; instances than those jurisdiction basis this court. this, doubt, correct, as no have perceived It is not we would proposi shown cases cited to decide authority question aris- Bartlett, 570; Ind. State v. State tion. ing upon exceptions prosecuting 409; Hamilton, State v. Hallo 62 Ind. attorney in a criminal without a well, v. Evansville & 377; State Ind. same, exceptions containing bill Co., Ry. T.H. 107 Ind. N.E. 619.” prescribed by taken and as filed then held Ginther: This added.) statute.” (Emphasis P. at accordingly view law “Our 979. prosecution in a criminal case this, Having the bill said court struck given by in this state is since was not sealed what rulings method review adverse ex- § 7-12-102, W.S.1977, cept through medium is now indicated our cited sections bill Cum.Supp. above [the four exceptions proceeding], with the limita- (Emphasis imposed.” tions there add- CONCLUSION ed.) 77 P.2d at summary, call attention to these Heberling, see To the same effect propositions: following Benales, supra, supra. and Wyo- The Constitution Exceptions Bill of ming authorizes this court to issue writs of Exclusive Source This appellate certiorari in the exercise of its Court’s Jurisdiction 5, 3, authority power, supra, Art. but this regulations such rules restricted possessed it is of a Since common-law prescribed by “may law.” Art. right appeal, right has no the State §§ 2 and 18. It is the that has ruling appeal a adverse district court’s given been and define limit judgment prosecution in a criminal without Stoner, Mau appellate process, su- strictly adhering bill-of-exceptions pra. of certiorari writ aid statute, provisions of 7-12-102 appellate jurisdiction, this court’s Art. through n. 2. supra This be- § 3, supra, prosecution, in criminal so, court, statu- ing except by excep- bills of tions, tory authority must exist has no to review to invoke the Annot., State ex rel. rulings court’s judgments. authority, certiorari Cornwell, 794-795, since, P. Gibson 977. As A.L.R. in criminal mat- noted, Gibson, ters, previously has been Chief right has no State common-law of court, Potter, writing for the Justice said: appeal from adverse trial-court decisions. “* * * Benales, supra; Ginther, State v. only upon compliance State v. provisions with the supra; Annot., 1095, 1096; 91 4 A.L.R.2d of § 268, Am.Jur.2d, Appeal pp. culpable neglect and Error or criminal carelessness or § 762-763; disregard safety conscious C.J.S. Criminal Law 1659. of the of others. Respondent charged with involun- In Wyoming, has carved § tary manslaughter 6-4-107, under W.S. out to exception the common-law rule of provided: nonappealability of the State’s adverse unlawfully “Whoever kills human rulings through passage of the being involuntarily, but in the com- bill-of-exceptions statutes. Since these act, mission of some except unlawful derogation statutes are of common in W.S. by any or law, they strictly must be construed neglect culpable carelessness, or criminal enlarged by their cannot be con- is guilty manslaughter, of and shall be Ginther, supra; v. State struction. imprisoned in penitentiary not more Weathers, supra; Arnold, v. State v. su- (20) years.” than twenty pra; 1659; Criminal C.J.S. Law Stovall, Wyo., see Respondent P.2d he only contended that could (1982) charged 547-548 for reaffirmation of the rule with homicide pursu- vehicle pertaining necessity 31-5-1117(b), W.S.1977, to the for strict con- ant to pro- derogation vided: struction of statutes

common law. “(b) Whoever, except when violation of culpable neglect law involves or crimi- that, This court has held based carelessness, unlawfully nal and uninten- propositions, prosecution these above tionally, disregard but with a conscious “no of method review of others, causes the death except rulings through adverse bill-of- [the person engaged of another while Ginther, exceptions procedure],” violation or state law ordinance supra, and, finally, we have said it is applying or use of a only upon compliance bill-of-excep with the traffic, to the regulation vehicle or provisions “juris tions that this court has except relating laws or ordinances those any ruling diction to review District (a) set forth in conduct subsection Court pros adverse the state in criminal section, guilty of homicide vehi- ecutions.” State ex rel. Gibson Corn proximate cle when the violation is the well, supra. and, upon cause death conviction given, For the reasons would hold that thereof, be fined not more than two shall majority grievous commit error ($2,000.00) impris- thousand dollars granting ap- the writ certiorari county jail oned in more than peal prose- because —this a criminal (1) year, one both.” has, through certiorari, cution —this court respondent’s granted The mo- trial court no ruling judg- review a or a dismiss, holding tion to that he could ment of the district court adverse to the charged homicide vehicle under Wyoming. State of W.S.1977, 31-5-1117(b), supra, citing in granted. improvidently writ was previous support decision our of its hold- State, Wyo., Thomas ings in State, Lopez (1977) CARDINE, Justice, dissenting, with opinion majority ac- ROSE, Justice, joins. whom knowledges correctness district I dissent. ruling court’s when it states: Respondent, operating while a motor ve- logic judge “The the district court is in hicle, resulting was involved an accident with our former holdings. accordance persons. in the death two There was no There is discernible difference be- intoxication, charge drinking although tween the standard of ‘reckless disre- gard’ (which equiva- there was evidence of the violation of traf- was held be the might ‘culpable neglect fic the level lent laws which rise to or criminal care- the statutes, attempt effectuate lessness’) disregard’ the to to and ‘conscious legislature. purpose of intent and of ‘unlawful- is used in the context State, (1979). P.2d 386 Nimmo v. doing unintentionally’ that which ly and Thus, exception found I construe the would proscribed the vehicular homicide § 31-5-1117(b), supra, the viola- “when Therefore, only if this were the statute. culpable neglect or tion of law involves uphold issue, aspect this we would only applicable to be carelessness” ruling.” court’s district use or involving to of law not violations end here. The me the case should For I hold operation of a motor vehicle. would af- of the court should be decision district constitutional, to giving effect the statute were raised for firmed. No other issues legislature clear intent our determination. opera- from or where death results the use however, proceeds majority, from The disre- tion a motor vehicle with conscious constitutionality of here to consider the others, penalty gard for the raised, § 31-5-1117(b). an issue not This is upon year jail one and a conviction is briefed, contended for argued, nor nor nor $2,000 provided by fine as the statute. appeal. parties by any of the We following general This satisfies the result ordinarily long not held that we will have rules of construction: constitutionality inquire into the of a stat statutes, “In the construction of motion, we our own nor will declare ute on assumption start with courts it unless is abso a statute unconstitutional legislature intended to enact an effective State, ex rel. necessary. lutely Keefe Hence, general princi- it is law *. 280, 182 McInerney, should, reasonably ple if that the courts (1947). inquire will our own Nor we statute, possible interpret or to do so completely where the can be motion case construed, provision being as to so effectively disposed of without such give operation and effect as it efficient Connelly, Wyo., 367 Markey decision. should, pos- interpretation if whole. An case has been decid- P.2d 964 This avoided, sible, under the statute be the law ed accordance with defeated, provision being construed prior in our decisions. has been stated nullified, expressed, de- or as otherwise disposed completely effectively. emasculated, stroyed, repealed, explained justification existing under our There is away, insignificant, meaning- rendered * * * ” undertaking rules for a determination of less, inoperative, nugatory. constitutionality of this statute. (Footnotes omitted.) 73 Stat- Am.Jur.2d utes however, majority, chosen motion, case, upon their own determine suggest respondent means result constitutionality the statute. I find for cannot be tried disagreement myself also with the deter- homicide with the resultant for vehicular 5—1117(b),supra, upon conviction, respondent, mination that is un- can effect that 31— year legisla- imprisoned clear from the for not more than one constitutional. It is $2,000. Perhaps history of more than tive these enactments that and fined not long penalty for conviction of vehicular ago determined that it severe think it homicide is not as as some separately treat homicide vehicle would not legislature; That is for the differently manslaughter. should be. It en- from determine, said for this court to for times several successive acted different that: separate providing penal- different statutes “negligent prescribe penalty homicide” and “homi- power

ties “The from imposed cide vehicle” where death resulted of a crime commission legislature, vehicle. These with the of a motor rests with the entirely power special grant special proper This is not a were courts. authority; part enacting legisla- or limited it is within to maintain duty, construing sovereign power This state ture. court has a omitted.) (Footnote liberty social order and to take life and 73 Am.Jur.2d Stat- rights necessary. and the of both when utes 295. stated, Supreme As the Court has what- would gross injustice It be a that this regarding ever views be entertained defendant, upon 31-5-1117(b) being severity punishment, whether one unconstitutional, found be tried man- efficacy futility, believes its its slaughter legislature obviously when the questions legisla- peculiarly these intended that not occur where death results (Footnotes omitted.) policy.” tive 21 from a a violation of statute or ordinance Am.Jur.2d Criminal Law 589. operating while a motor vehicle. legis- by There was an obvious intent resulting treat

lature to death from the

operation of a motor vehicle in violation separately differently

traffic laws resulting

from death from other causes gun

such as the use of a or knife. The legisla-

different treatment accorded weight given ture should considerable Roy ENGBERG, Appellant Lee determining the status these statutes. (Defendant), years age Drivers are licensed at sixteen special permit a drive can receive Wyoming, Appellee The STATE of age. everyone Almost drives before that (Plaintiff). wants drive an automobile. necessity traveling often considered a 83-29. No. in everyday living. to work and Supreme * Wyoming. “ * * Court [Njegligent homicide statutes adopted were after June 1984. proved acts had ineffective as a means Rehearing Aug. Denied 1984. repressing negligence vehi- motor Certiorari Denied Dec. causing cle which deaths See 105 S.Ct. 577. public thoroughfares. Possibly legislation, if success the new it in any, achieved truth resulted from the

fact that in common man- understanding

slaughter killings acts deal with brutal type individual, a debased whereas generally reputable

the motorist is citi-

zen, the wrong committed him brought someone to his death counterpart driving its finds * * ”*

many Wojahn, others.

204 Or. treatment

The different accorded penal stat- reasonable. These therefore,

utes, should * “ * * construed with such strictness as safeguard rights of the defendant. patent ambigui-

If the statute contains

ty and admits of two reasonable constructions,

contradictory operates party in favor un- accused * * ” provisions preferred.

der its is to be

Case Details

Case Name: State v. Sodergren

Court Name: Wyoming Supreme Court

Date Published: Jun 26, 1984

Citation: 686 P.2d 521

Docket Number: 83-110

Court Abbreviation: Wyo.