State v. Carman ( 2015 )

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STATE v. CARMAN
Cite as 292 Neb. 207
State of Nebraska, appellee, v.
Lyle J. Carman, appellant.
___ N.W.2d ___
Filed December 4, 2015. No. S-15-167.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The
constitutionality and construction of a statute are questions of law,
which an appellate court resolves independently of the conclusion
reached by the lower court.
2. Convictions: Evidence: Appeal and Error. When reviewing a criminal
conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
4. Criminal Law: Statutes: Intent. Penal statutes are considered in the
context of the object sought to be accomplished, the evils and mischiefs
sought to be remedied, and the purpose sought to be served. A court
must then reasonably or liberally construe the statute to achieve the
statute’s purpose, rather than construing it in a manner that defeats the
statutory purpose.
Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Reversed and remanded with directions.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
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Cite as 292 Neb. 207
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ., and Inbody, Judge.
Wright, J.
NATURE OF CASE
Lyle J. Carman appeals his conviction for “unlawful act
manslaughter” under Neb. Rev. Stat. § 28-305 (Reissue 2008).
Carman’s dump truck struck the rear of a car that had stopped
or slowed due to highway construction. The collision forced
the car off the highway, causing it to roll, and the driver was
killed as a result. The unlawful acts for which Carman was
convicted were following too closely and driving too fast for
the conditions present. He claims these acts were traffic infrac-
tions which were insufficient to sustain his conviction. For the
reasons stated below, we reverse, and remand with directions to
vacate Carman’s conviction and sentence.
SCOPE OF REVIEW
[1] The constitutionality and construction of a statute are
questions of law, which an appellate court resolves indepen-
dently of the conclusion reached by the lower court. See State
v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
[2] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Nolan, 283 Neb. 50, 807
N.W.2d 520 (2012).
BACKGROUND
Carman was driving a dump truck on an interstate highway
that was closed to one lane eastbound due to construction, and
traffic was stop and go. Carman stated that he looked down
at his side mirrors and that when he looked up, the victim’s
car had stopped and he was unable to timely stop. Carman’s
truck struck the victim’s car from the rear, causing it to go off
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the Interstate and roll. The driver of the car died as a result of
the collision.
Carman was charged and ultimately convicted of man-
slaughter pursuant to § 28-305, a Class III felony. Section
28-305 codifies what has been referred to as “unlawful act
manslaughter” or “involuntary manslaughter.” Unlawful act
manslaughter is defined as causing the death of another “unin-
tentionally while in the commission of an unlawful act.” See
§ 28-305.
Carman waived his right to a jury trial and proceeded with a
bench trial. The district court found him guilty of the unlawful
acts of “following too close,” under Neb. Rev. Stat. § 60-6,140
(Reissue 2010), and “driving too fa[s]t for [the] conditions,”
under Neb. Rev. Stat. § 60-6,185 (Reissue 2010). Carman was
found not guilty of driving under the influence, reckless driv-
ing, and careless driving.
Before trial, Carman raised the issue of being charged
with felony manslaughter instead of misdemeanor motor vehi-
cle homicide. Motor vehicle homicide occurs when a person
causes the death of another unintentionally while engaged in
the operation of a motor vehicle in violation of Nebraska law
or a city ordinance. See Neb. Rev. Stat. § 28-306 (Cum. Supp.
2014). Carman claimed that he should have been charged with
motor vehicle homicide and that § 28-306 was the proper
statute if the unintentional killing of another occurred during
the operation of a motor vehicle. He claimed that a prosecu-
tor should not be permitted to charge a defendant under the
general unlawful act manslaughter statute if the unintentional
death was caused by a motor vehicle accident.
In his motion for new trial, Carman alleged that the
provisions of § 28-305 were unconstitutional as applied to
his conviction. The motion was overruled without discus-
sion or written order. The district court did not expressly
address whether the use of traffic infractions as a basis for
a felony conviction for manslaughter violated due process,
but rejected Carman’s arguments by overruling his motion.
Carman timely appealed.
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ASSIGNMENTS OF ERROR
Carman argues, summarized and restated, that the district
court erred in concluding the evidence was sufficient to con-
vict him of manslaughter. He claims that § 28-306 precludes a
conviction for unlawful act manslaughter when the underlying
offense is a traffic infraction or other public welfare offense
and that, therefore, the evidence was insufficient to convict
him of manslaughter.
ANALYSIS
The issue is whether Carman’s traffic infractions were suf-
ficient unlawful acts to support a manslaughter conviction
under § 28-305. Carman argues that recent amendments to
§ 28-306, the motor vehicle homicide statute, demonstrate the
Legislature’s intent to preclude convictions for manslaugh-
ter when an unintentional death results from an unlawful act
occurring while operating a motor vehicle. He claims the
predicate unlawful acts, which were traffic infractions, were
insufficient to sustain his conviction.
[3,4] Our analysis is governed by the following principles.
Statutory interpretation presents a question of law, which an
appellate court reviews independently of the lower court’s
determination. See Vokal v. Nebraska Acct. & Disclosure
Comm., 276 Neb. 988, 759 N.W.2d 75 (2009). Penal statutes
are considered in the context of the object sought to be accom-
plished, the evils and mischiefs sought to be remedied, and the
purpose sought to be served. Id. A court must then reasonably
or liberally construe the statute to achieve the statute’s purpose,
rather than construing it in a manner that defeats the statutory
purpose. See Fisher v. Payflex Systems USA, 285 Neb. 808,
829 N.W.2d 703 (2013). An appellate court will try to avoid,
when possible, a statutory construction which would lead to an
absurd result. See State v. McCave, 282 Neb. 500, 805 N.W.2d
290 (2011).
“A person commits manslaughter if he . . . causes the
death of another unintentionally while in the commission of
an unlawful act.” § 28-305. At the time Carman was charged,
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manslaughter was a Class III felony, with a penalty between 1
and 20 years’ imprisonment, up to a $25,000 fine, or both.
“A person who causes the death of another unintentionally
while engaged in the operation of a motor vehicle in viola-
tion of the law of the State of Nebraska or in violation of any
city or village ordinance commits motor vehicle homicide.”
§ 28-306(1) (emphasis supplied). Motor vehicle homicide is
a Class I misdemeanor, but the statute provides for penalty
enhancements if the offender is convicted of driving under the
influence, reckless or willful reckless driving, or driving under
revocation. These predicate offenses enhance motor vehicle
homicide to varying degrees of felonies.
Carman opines that “there has always existed, just below
the surface, an issue as to what criminal intent or mens rea
had to be present in the unlawful act to support a manslaugh-
ter conviction.” Brief for appellant at 21. He claims that a
manslaughter conviction cannot be upheld when the unlawful
act was an infraction or petty offense. He points out that all
prior manslaughter cases involving the use of a motor vehicle
evidenced a showing that the driver was impaired or driv-
ing recklessly.
While both §§ 28-305 and 28-306 require some kind of
unlawful act which proximately causes an unintentional
death of another, neither statute defines the type of unlawful
act required. The district court acquitted Carman of driving
recklessly, pursuant to Neb. Rev. Stat. § 60-6,213 (Reissue
2010), and driving carelessly, pursuant to Neb. Rev. Stat.
§ 60-6,212 (Reissue 2010). But it found him guilty of follow-
ing too closely, in violation of § 60-6,140, and driving too
fast under the conditions, in violation of § 60-6,185, both traf-
fic infractions.
A traffic infraction is a violation of the Nebraska Rules
of the Road. State v. Lee, 265 Neb. 663, 658 N.W.2d 669
(2003). Neither of the infractions for which Carman was con-
victed is punishable by incarceration; the infractions carry
only a fine. But the district court found that these infractions
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were unlawful acts which caused the death of the vic-
tim unintentionally and, therefore, constituted the crime of
manslaughter.
It is apparent to this court that such traffic infractions are
not the type of unlawful acts that were typically considered in
connection with the crime of manslaughter. Nevertheless, the
State asserts that any unlawful act which proximately causes
the death of another is sufficient under § 28-305 and that the
State could validly exercise prosecutorial discretion to charge
the unlawful act as manslaughter. We agree with the State’s
assertion that it had discretion to elect under which statute to
charge Carman. But the election to charge under § 28-305 did
not define what unlawful act the State was required to prove in
order to sustain the manslaughter conviction. The State’s argu-
ment that it had discretion to charge Carman with manslaugh-
ter or motor vehicle homicide does not answer the question.
Prosecutorial discretion does nothing to define what unlawful
act is required for manslaughter.
We have repeatedly held that the same conduct may consti-
tute both involuntary manslaughter and motor vehicle homi-
cide and that the State has prosecutorial discretion to pursue
charges for either offense. But the State’s argument misapplies
prosecutorial discretion as a basis for its position that traffic
infractions that would sustain a conviction for misdemeanor
motor vehicle homicide would also sustain a conviction for
felony manslaughter. This argument ignores a fundamental dif-
ference between those unlawful acts required for manslaughter
and those which would sustain a conviction for misdemeanor
motor vehicle homicide. A public welfare offense which would
sustain misdemeanor motor vehicle homicide does not require
mens rea. In contrast, the predicate unlawful act for man-
slaughter must have a mens rea.
Although §§ 28-305 and 28-306 do not refer to mens rea
or criminal intent in the unlawful act, the distinction between
the two statutes cannot be ignored. Because of the different
context in which the offenses of manslaughter and motor
vehicle homicide arise, §§ 28-305 and 28-306 are clearly
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distinct crimes and must be interpreted differently. Whereas
the offense of unlawful act manslaughter or involuntary man-
slaughter has its origins in common law, motor vehicle homi-
cide does not.
In State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011),
we examined the requirements for misdemeanor motor vehi-
cle homicide in the context of the requirement of criminal
intent. The deceased was killed when a dump truck driven
by the defendant ran a red light and struck the decedent’s
car. The defendant was charged with misdemeanor motor
vehicle homicide and violation of a traffic control device.
We compared the distinct interpretations of public welfare
offense penal statutes with those which were codifications of
common-law offenses. We concluded that misdemeanor motor
vehicle homicide was a public welfare offense which did not
require proof of mens rea.
In discussing the absence of mens rea in penal statutes codi-
fying common-law offenses, we reiterated the rule for statu-
tory interpretation of criminal statutes. “‘“[T]he existence of a
criminal intent is regarded as essential even though the terms
of the statute do not require it, unless it clearly appears that the
legislature intended to make the act criminal without regard to
the intent with which it was done.”’” Id. at 470, 804 N.W.2d
at 170 (quoting State v. Pettit, 233 Neb. 436, 445 N.W.2d 890
(1989), overruled on other grounds, State v. Jones, 245 Neb.
821, 515 N.W.2d 654 (1994)). In applying this rule to misde-
meanor motor vehicle homicide, we held that misdemeanor
motor vehicle homicide was a public welfare offense without
common-law origins and that, therefore, the absence of the
mens rea element in the statute indicated that the Legislature
intended to dispense with the element.
Our reasoning in Perina was based on the U.S. Supreme
Court’s analysis in Morissette v. United States, 342 U.S.
246, 72 S. Ct. 240, 96 L. Ed. 288 (1952), and its progeny.
In Morissette, the defendant was convicted of violating 18
U.S.C. § 641 (2012), which provided, then as now, that who-
ever steals or knowingly converts U.S. government property
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may be punished by a fine or imprisonment. In a rural area,
the defend­ant found spent bomb casings and sold them. He
explained that he had no intention of stealing anything and
thought the casings had been abandoned. He was convicted,
because the trial court concluded that the statute required no
element of mens rea and that any necessary intent could be
presumed from the defendant’s act.
In reversing the lower courts’ decisions, the U.S. Supreme
Court discussed the principle that some crimes, which became
known as public welfare offenses, can involve no mental ele-
ment or criminal intent, but consist only of forbidden acts or
omissions. Such offenses did not arise from the common law,
but, rather, from changing societal circumstances and did not
require any element of intent. Such offenses were not in the
nature of positive aggressions or invasions, with which the
common law so often dealt, but were in the nature of neglect
where the law requires care, or inaction where it imposes a
duty. One accused of such offenses usually is in a position to
prevent it with no more care than society might reasonably
expect and no more exertion than it might reasonably exact
from one who assumed his responsibilities. Thus, the type of
legislation whereby penalties serve as effective means of regu-
lation dispenses with the conventional requirement for criminal
intent. The Court found that 18 U.S.C. § 641 was essentially
a theft offense codified from the common law and, therefore,
required proof of criminal intent or mens rea.
The U.S. Supreme Court revisited Morissette decades later
in Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128
L. Ed. 2d 608 (1994). In Staples, the Court reiterated that a
statute’s silence on the mens rea of an offense did not suggest
legislative intent to dispense with the element. “On the con-
trary, we must construe the statute in light of the background
rules of the common law . . . in which the requirement of some
mens rea for a crime is firmly embedded.” Staples v. United
States, 511 U.S. at 605. Furthermore, in noting that offenses
requiring no mens rea are disfavored, the Court concluded that
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a general characteristic of public welfare offenses is that they
do not carry heavy penalties, stating:
In rehearsing the characteristics of the public welfare
offense, we, too, have included in our consideration the
punishments imposed and have noted that “penalties com-
monly are relatively small, and conviction does no grave
damage to an offender’s reputation.” . . .
Our characterization of the public welfare offense in
Morissette hardly seems apt, however, for a crime that
is a felony . . . . After all, “felony” is, as we noted in
distinguishing certain common-law crimes from public
welfare offenses, “‘as bad a word as you can give to
man or thing.’” . . . In this view, absent a clear statement
from Congress that mens rea is not required, we should
not apply the public welfare offense rationale to interpret
any statute defining a felony offense as dispensing with
mens rea.
Staples v. United States, 511 U.S. at 617-18 (quoting Morissette
v. United States, supra).
In State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011),
we adopted the Court’s rules of statutory interpretation regard-
ing the absence of mens rea in penal statutes. Moreover, we
adopted the Court’s characterization of public welfare offenses
as generally carrying relatively small penalties. We stated:
[I]f the statute “omits mention of intent and where it
seems to involve what is basically a matter of policy,
where the standard imposed is, under the circumstances,
reasonable and adherence thereto properly expected of a
person, where the penalty is relatively small, where con-
viction does not gravely besmirch, where the statutory
crime is not taken over from the common law, and where
congressional purpose is supporting, the statute can be
construed as one not requiring criminal intent.”
State v. Perina, 282 Neb. at 470, 804 N.W.2d at 170 (quot-
ing Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960)).
Thus, we concluded that although motor vehicle homicide
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bears some relationship to manslaughter, it was more directly
related to the traffic offenses upon which it was based. See
State v. Perina, supra. Traffic violations were expressly iden-
tified in Morissette v. United States, 342 U.S. 246, 72 S. Ct.
240, 96 L. Ed. 288 (1952), as an example of public welfare
offenses not taken from the common law, and, therefore, not
requiring mens rea.
Applying our reasoning in Perina to the case at bar, we
conclude that public welfare offenses such as traffic infrac-
tions which do not contain the element of criminal intent can-
not support convictions for manslaughter. Section 28-305 is a
codification of a common-law offense of manslaughter, and
the existence of criminal intent is regarded as essential even
though the terms of the statute do not expressly require it.
There is no indication that the Legislature intended to dispense
with the State’s requirement to show mens rea in the predicate
unlawful act for involuntary manslaughter.
Unlike misdemeanor motor vehicle homicide, a charge of
manslaughter cannot be supported when the predicate unlaw-
ful act is a public welfare offense which contains no mens rea.
In order to sustain a conviction for involuntary manslaughter
or unlawful act manslaughter under § 28-305, the State must
prove beyond a reasonable doubt that the defendant acted with
the requisite mens rea in committing the unlawful act.
Other courts have reached similar conclusions in the con-
text of their own involuntary manslaughter statutes. Florida
appellate courts have held that the commission of traffic
infractions is not sufficient, without more, to support a con-
viction for culpable negligence manslaughter, which depends
on the extreme character of the conduct itself, not on its
mere illegality. See Logan v. State, 592 So. 2d 295 (Fla. App.
1991). See, also, Behn v. State, 621 So. 2d 534 (Fla. App.
1993) (holding that operation of motor vehicle with deficient
brakes, even when coupled with traffic infraction, does not
rise to level of criminality required to support conviction of
manslaughter).
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Similarly, Virginia appellate courts have held that the
operation of a motor vehicle in violation of a safety statute,
amounting to mere negligence proximately causing accidental
death, is not sufficient to support the conviction of involun-
tary manslaughter. See, Jenkins v. Commonwealth, 220 Va.
104, 255 S.E.2d 504 (1979) (defendant driving southbound
down middle of unmarked road with lights on low beam saw
pedestrian in northbound lane ahead and applied brakes but
hit victim); King v. Commonwealth, 217 Va. 601, 231 S.E.2d
312 (1977) (inadvertent failure to turn on white headlights,
rather than amber running lights, in violation of statute);
Lewis v. Commonwealth, 211 Va. 684, 179 S.E.2d 506 (1971)
(failing to keep proper lookout, but no evidence of speed-
ing, drinking, or recklessness); Tubman v. Commonwealth, 3
Va. App. 267, 348 S.E.2d 871 (1986) (failing to keep proper
lookout and to yield right of way to motorcycle approaching
on public highway which motorist was entering from pri-
vate road).
North Carolina appellate courts have held that whereas
a defendant may be convicted under the state’s “Death by
Vehicle” statute, see N.C. Gen. Stat. § 20-141.4(a2) (2007),
if the death proximately results from the violation of a traf-
fic statute or ordinance, such violations by themselves are not
sufficient to convict a person of the common-law offense of
involuntary manslaughter. See, State v. Lackey, 71 N.C. App.
581, 323 S.E.2d 32 (1984); State v. Freeman, 31 N.C. App. 93,
228 S.E.2d 516 (1976) (superseded by statute as stated in State
v. Davis, 198 N.C. App. 443, 680 S.E.2d 239 (2009)).
The State claims that to convict for involuntary man-
slaughter, it must establish only that a defendant acted neg-
ligently in committing the predicate unlawful act. This pro-
posed interpretation of § 28-305 would make involuntary
manslaughter a de facto strict liability crime. And this is
demonstrated by the State’s attempt to use Carman’s traffic
infractions—both public welfare offenses—as the underlying
unlawful acts.
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Even if we accept this argument, Carman’s conviction still
cannot be upheld. The State must prove each element of the
criminal offense beyond a reasonable doubt. State v. Parks,
253 Neb. 939, 573 N.W.2d 453 (1998). Following a bench
trial, Carman was found not guilty of driving “carelessly or
without due caution so as to endanger a person or property.”
See § 60-6,212. The district court found Carman guilty of fol-
lowing too closely, pursuant to § 60-6,140, and driving too fast
for the conditions, pursuant to § 60-6,185. We have held that
violation of a statute is not negligence as a matter of law, but
is only evidence of negligence to be considered with all other
evidence in the case. Orduna v. Total Constr. Servs., 271 Neb.
557, 713 N.W.2d 471 (2006). If negligence were the mens rea
required to convict for manslaughter, the district court was
required to find beyond a reasonable doubt that Carman acted
negligently. It did not do so.
Our analysis points us toward the conclusion that momentary
inattentiveness and minor traffic violations do not involve the
culpability or mens rea required to convict one of felony man-
slaughter. This rationale was espoused more than 70 years ear-
lier when it was observed that the term “manslaughter” imports
a degree of brutality which jurors generally do not care to cast
upon a merely negligent driver, and society is often unwilling
to condemn as a felon one who is guilty only of some act of
negligence, even though that act has resulted in the death of
another. See Frank A. Karaba, Note, Negligent Homicide or
Manslaughter: A Dilemma, 41 J. Crim. L. & Criminology 183
(1950). Moreover, “[t]o inflict substantial punishment upon one
who is morally entirely innocent, who caused injury through
reasonable mistake or pure accident, would so outrage the
feelings of the community as to nullify its own enforcement.”
Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.
Rev. 55, 56 (1933).
In State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011),
we cited to the Oregon Supreme Court’s explanation of its
negligent homicide statute. The Oregon court found that the
statute was essentially a police regulation. It concluded that
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“the [Oregon] legislature did not intend that any form of
moral culpability should be an element of the offense,”
because “[t]he crime created by the act is not one that
casts great stigma upon those convicted, nor is the pen-
alty prescribed by the act so great that its imposition upon
those who had no evil purposes tends to shock the sense
of natural justice.”
Id. at 474, 804 N.W.2d at 172 (quoting State of Oregon v.
Wojahn, 204 Or. 84, 282 P.2d 675 (1955)).
In enacting the motor vehicle homicide statute, § 28-306,
the Legislature provided that only certain acts would be treated
as felonies and that all other violations of the law which
result in the unintended death of another while engaged in the
operation of a motor vehicle were Class I misdemeanors. The
Legislature described what specific acts under § 28-306 would
result in a felony conviction. But this does not mean that the
State was relieved of its burden to establish criminal intent if it
elected to charge Carman under § 28-305.
Carman’s conviction for public welfare offenses which
required no mens rea was insufficient to support his conviction
for unlawful manslaughter. Unless the Legislature expressly
dispenses with the element of criminal intent, or mens rea,
from the offense of manslaughter, our rules in construing
criminal statutes require the State to prove such intent. See
State v. Perina, supra. This conclusion does not require us to
define precisely what criminal intent is required for involuntary
manslaughter. However, sources examining the subject almost
invariably agree that more than ordinary negligence in the civil
sense is required to support such convictions.
Decades ago, the Kansas Supreme Court carefully reviewed
the common-law background of manslaughter and concluded
that “it came to be thoroughly understood that the system
of thought known as the common law did not sanction con-
viction of a man of manslaughter resulting from negligent
conduct, unless his conduct was accompanied by a wrong
mental attitude having the qualities of recklessness.” State
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v. Custer, 129 Kan. 381, 387, 282 P. 1071, 1075 (1929). The
court explained:
We are familiar in civil cases with the kind of conduct
which will authorize punitive damages, and will prevent
interposition of the defense of contributory negligence.
It is supposed to involve fault, just as guilt of crime
subjecting the offender to punishment was supposed to
involve a certain “wickedness.” It is regarded as display-
ing greater culpability than negligence. The higher degree
of culpability was essential to common-law manslaughter
resulting from negligence.
Id. at 394, 282 P. at 1078.
Adopting the Kansas court’s reasoning, the South Dakota
Supreme Court similarly held that ordinary negligence was
insufficient to sustain a conviction for manslaughter at com-
mon law. In construing South Dakota’s manslaughter statute,
the court held:
[T]his statute which we are now considering was enacted
originally with the purpose and intent of codifying the
common law on the subject, and . . . the common law
required that negligence to be sufficient to support a
criminal action must be something more than mere inad-
vertence. There must be some action from which the
jury might reasonably infer the mens rea. The statute has
described this action as “culpable.”
State v. Bates, 65 S.D. 105, 108, 271 N.W. 765, 766 (1937).
The court described culpable negligence as an intentional act
or omission which the defendant “consciously realized that his
conduct would in all probability (as distinguished from pos-
sibly) produce the precise result which it did produce.” Id. at
109, 271 N.W. at 767.
Similarly, in reviewing the mens rea required to convict for
involuntary manslaughter, the Michigan Supreme Court held:
[U]nder the common law, one is not criminally respon-
sible for death from negligence unless the negligence
is so great that the law can impute a criminal intent. If
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death ensues from negligence which shows a culpable
indifference to the safety of others, the negligence is said
to be gross or wanton or wil[l]ful, and is equivalent to
criminal intent, a necessary element of every common-
law crime. One whose acts cause death under such
circumstances is guilty of involuntary manslaughter or
common-law negligent homicide.
People v. Campbell, 237 Mich. 424, 428, 212 N.W. 97, 99
(1927).
The New Mexico Supreme Court held that careless driv-
ing was insufficient to show criminal negligence required to
convict under the state’s manslaughter statute, which was a
codification of the common-law offense. The court stated:
“‘Mere negligence is not sufficient. It may be sufficient to
compel the driver to respond in damages. However, when it
comes to responding to an accusation of involuntary man-
slaughter, with the possibility of a penitentiary sentence,
a different rule is called into play.’” State v. Yarborough,
122 N.M. 596, 930 P.2d 131, 135 (1996) (quoting State v.
Sisneros, 42 N.M. 500, 82 P.2d 274 (1938)). The court noted
a clear majority of jurisdictions require that the predicate
offense for involuntary manslaughter involve criminal negli-
gence or recklessness.
One commentator noted: “Tests of criminal culpability nec-
essary to sustain [manslaughter] convictions are many and
varied. But it is generally agreed that slight negligence or
even ‘ordinary’ or ‘civil’ negligence is not sufficient to sustain
manslaughter convictions.” Frank A. Karaba, Note, Negligent
Homicide or Manslaughter: A Dilemma, 41 J. Crim. L. &
Criminology 183, 183-84. The courts look for a degree of care-
lessness which might be labeled “‘willful’ or ‘wanton’ or
‘gross or culpable.’” Id. at 184.
Another commentator observed that courts around the coun-
try generally use one or more of six terms to describe the
level of negligence required to convict a defendant of involun-
tary manslaughter by unlawful act: (1) criminal, (2) culpable,
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(3) gross, (4) willful, (5) wanton, or (6) reckless. James J.
Robinson, Manslaughter by Motorists, 22 Minn. L. Rev. 755
(1938). He noted that these terms were generally used and
treated synonymously by most courts, but asserted that the
most effective term to describe the mens rea for manslaughter
is “reckless,” or heedless regard for consequences. Id.
For more than a century, our case law has used nearly all
of these six terms. This court has not been consistent in its
language and decisions as to what criminal intent or mens rea
is required for an unlawful act to support a conviction for man-
slaughter. In Schultz v. State, 89 Neb. 34, 46, 130 N.W. 972,
977 (1911), when considering what is required to convict for
manslaughter, we held:
“One may be criminally responsible for the negligent
operation of an automobile. A person is guilty of crimi-
nal negligence . . . when the breach of duty is so flagrant
as to warrant an implication that the resulting injury was
intended; that is, when his negligent conduct is incom-
patible with a proper regard for human life. Negligence is
the gist of the offense, and, in the absence of recklessness
or of want of due caution, there is no criminal liability.
Actual intent is not an essential element of the offense.
It is enough if there is shown a negligent and reckless
indifference of the lives and safety of others.”
(Emphasis supplied.) Thus, we used both the legal terms “neg-
ligent” and “reckless,” but we clearly described a culpability
higher than ordinary negligence for civil damages.
Shortly after Schultz, in upholding a manslaughter con-
viction based on child neglect, we considered whether the
defendant was “culpably negligent” or “criminally negligent.”
See Stehr v. State, 92 Neb. 755, 759, 761, 139 N.W. 676, 678
(1913). Although we did not define what made an act culpably
or criminally negligent, we noted, “It is not a slight failure in
duty that would render him criminally negligent, but a great
failure of duty undoubtedly would.” Id. at 759, 139 N.W. at
678. We later held:
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We believe the rule to be that, though the act, made
unlawful by statute, is an act merely malum prohibitum
and is ordinarily insufficient, still, when such an act is
accompanied by negligence or further wrong, so as to be,
in its nature, dangerous, or so as to manifest a reckless
disregard for the safety of others, then it . . . may consti-
tute involuntary manslaughter.
Thiede v. State, 106 Neb. 48, 53, 182 N.W. 570, 572 (1921)
(emphasis supplied).
Years later, we affirmed a manslaughter conviction upon
finding that a jury instruction containing reference to driving
an automobile in an unlawful, reckless, careless, and negli-
gent manner, instead of charging in regard to driving on the
wrong side of the road, did not constitute reversible error. See
Crawford v. State, 116 Neb. 125, 216 N.W. 294 (1927). In
that case, the defendant was found to have been driving while
intoxicated and driving on the wrong side of the road.
In Cowan v. State, 140 Neb. 837, 2 N.W.2d 111 (1942), we
affirmed a manslaughter conviction of a defendant who was
found to have been driving while intoxicated at a high rate of
speed. We stated:
Our conclusion is that the evidence is sufficient to sustain
the finding of the jury that plaintiff in error was guilty of
such gross negligence as to indicate a wanton disregard
of human life. Such negligence is criminal in its character,
and where it results in a death will sustain a conviction
for manslaughter.
Id. at 843, 2 N.W.2d at 114-15 (emphasis supplied).
To support its argument that § 28-305 is unconcerned with
the nature of the unlawful act, the State relies on a series of
cases which largely omit the requirement that an act be crimi-
nally, culpably, or grossly negligent or that the defendant’s
conduct is willful, wanton, or reckless. In Benton v. State, 124
Neb. 485, 247 N.W. 21 (1933), the defendant was convicted
of manslaughter after he was found to have negligently driven
an automobile, while intoxicated, into the rear of a car on
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the highway, resulting in the death of a passenger of that car.
We stated: “When one drives an automobile in violation of
law pertaining to the operation of such vehicles on the public
highway and in so doing, as a result of the violation of law,
causes death to another is guilty of manslaughter. This rule
applies to one driving while intoxicated.” Id. at 488, 247 N.W.
at 23.
In Schluter v. State, 153 Neb. 317, 44 N.W.2d 588 (1950),
we upheld the defendant’s conviction for manslaughter after
causing the death of another while intoxicated, operating his
vehicle at a reckless speed, and driving on the wrong side of
the highway. In Hoffman v. State, 162 Neb. 806, 77 N.W.2d
592 (1956), the defendant’s vehicle collided with the rear end
of a truck, and a passenger in the defendant’s vehicle was
killed. The defendant was intoxicated at the time of the colli-
sion. We stated that although the jury found the defendant was
grossly negligent, the State was not required to show gross
negligence to convict him.
But the State’s reliance on these cases is misplaced. Each
involved more than mere traffic infractions, which have no
mens rea. They almost invariably involved driving while
intoxicated, driving recklessly, or both. These actions would
establish that the unlawful act was done voluntarily and
intentionally and was not the result of mistake, accident, or
momentary inattention. And we are unaware of any Nebraska
cases that involved a conviction for manslaughter where the
predicate unlawful acts were mere traffic infractions without
any showing of driving while intoxicated or some other reck-
less act.
State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998), is
the exception, but it is distinguishable from the case at bar.
In that case, the defendant entered a plea of no contest to the
information charging him with manslaughter under § 28-305
for killing the victim while operating a motor vehicle in an
unlawful manner. Following an unsuccessful direct appeal and
denial of his postconviction action, the case reached this court
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on his petition for further review. The defendant claimed that
although he pled no contest to manslaughter under § 28-305, a
Class III felony, his attorney should have argued for a sentence
in accordance with § 28-306. He claimed ineffective assistance
of counsel because of his attorney’s failure to argue for a sen-
tence in the range prescribed by § 28-306. We denied relief,
because he pled to and was convicted of manslaughter under
§ 28-305 and could not be sentenced for motor vehicle homi-
cide under § 28-306.
Furthermore, with the exception of Burnett, at the time of
the above-mentioned cases, the statute for motor vehicle homi-
cide did not exist. It was considered an amelioration of the
penalty provision of the manslaughter statute. See Birdsley v.
State, 161 Neb. 581, 74 N.W.2d 377 (1956). Neb. Rev. Stat.
§ 39-669.20 (Reissue 1984) provided:
Any person, convicted of manslaughter or mayhem
resulting from his operation of a motor vehicle, or of
motor vehicle homicide, shall be (1) fined in a sum not
exceeding five hundred dollars, (2) imprisoned in the
county jail not to exceed six months, or (3) both so fined
and imprisoned.
Persons convicted of manslaughter while operating motor vehi-
cles in violation of the law were subject to this ameliorated
penalty. In 1978, manslaughter and motor vehicle homicide
were made into two separate and distinct offenses under differ-
ent statutes and with different penalties. See 1977 Neb. Laws,
L.B. 38, §§ 20 and 21 (operative July 1, 1978).
Our holding in State v. Roth, 222 Neb. 119, 382 N.W.2d
348 (1986), disapproved on other grounds, State v. Wright, 261
Neb. 277, 622 N.W.2d 676 (2001), and State v. Wright, supra,
that the State has prosecutorial discretion to charge a person
for either manslaughter or motor vehicle homicide as the result
of an unintentional death arising from an unlawful act during
the operation of a motor vehicle remains unaffected by our
decision in the case at bar. We noted that “‘[i]t is not uncom-
mon for an act to constitute a violation of more than one crime
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. . . .’” State v. Wright, 261 Neb. at 288, 622 N.W.2d at 683
(quoting State v. Roth, supra). Where a single act violates more
than one statute, a prosecutor is free to prosecute under any
statute he chooses, so long as the selection is not deliberately
based upon an unjustifiable standard such as race, religion, or
other arbitrary classification. State v. Roth, supra.
But in exercising its discretion to charge under one offense
or another, the State must prove each element of that offense
beyond a reasonable doubt. See State v. Parks, 253 Neb. 939,
573 N.W.2d 453 (1998). When the State charged Carman
with manslaughter, it was required to show mens rea. It failed
to do so. The traffic infractions upon which Carman’s man-
slaughter charge were predicated were public welfare offenses.
Therefore, they did not establish the required element of
mens rea.
Because the State did not prove that Carman acted with the
mens rea required to convict him under § 28-305, we need not
review the constitutional challenges to his conviction.
CONCLUSION
For the reasons stated above, we reverse the judgment of the
district court and remand the cause with directions to vacate
Carman’s conviction and sentence under § 28-305.
R eversed and remanded with directions.
Stacy, J., not participating.