State v. Twitchell , 8 Utah 2d 314 ( 1959 )

WORTHEN, Justice.

Defendant appeals from a conviction by a jury of the crime of automobile homicide in violation of 76-30-7.4, U.C.A. 1953 (1957 Pocket Supplement) which was passed by the 1957 Legislature as Chapter 165, Laws of Utah, 1957.

The act, including the title, is as follows:

“An Act Relating To The Penal Code; Providing For The Offense Of Causing Death Through The Operation Of A Motor Vehicle While Intoxicated And Providing Punishment In The State Penitentiary For A Period Of From One To Ten Years.

“Be it enacted by the Legislature of the State of Utah:

“Section 76-30-7.4, Utah Code Annotated 1953, is enacted to read:

“Any person, while under the influence of intoxicating liquor or narcotic drugs, or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle, who causes the death of another by operating or driving any automobile, motorcycle or other vehicle in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment in the state penitentiary for a period of not less than one year nor more than ten years. A death under this section, is one which occurs as a proximate result of the accident within a year and a day, after the day of the accident.”

Defendant contends that the statute in question is unconstitutional in that it violates the constitutional provisions against special legislation ;¹ that it violates the constitutional provision against deprivation of liberty without due process of law;² and that it violates a further constitutional provision ³ because it contains more '-than one subject and the subject is not clearly expressed in the title of the act.

Defendant claims that the act in question unlawfully discriminates against those who by mere chance while driving an automobile under the influence of drugs or intoxicants happen to fatally injure another. He states that the act does not make driving under the influence a felony, but only places the felony penalties on those who are unluckier than the other drivers under the influence. He contends that this classification by the legislature, this singling out of drunken and drugged drivers who kill is unconstitutional. He also contends that the legislature has substituted the status of being under the influence of drugs or liquor for criminal intent formerly required before one could be convicted of a felony. He also contends that under the new statute the prosecutor has a choice of whether to charge automobile homicide, a felony, or involuntary manslaughter, a misdemeanor, on identical facts. The definition of involuntary manslaughter was not amended expressly by the passage of the automobile homicide act and he contends that the two statutes existing side by side allow the prosecutor to make discriminations against individuals and deprive citizens of equal protection of the laws.

There is slight difference between the statute in question and a statute prohibiting the use of a loaded gun resulting in the death of a human being, yet the individual who happens to kill another, absent any criminal intent, cannot contend that the classification is unrealistic.

If “A” shoots at “B” intending to kill him but misses “B” and hits “C,” he cannot excuse his act by showing that he did not intend to hit or kill “C.”

So far as the question of the present statute being unlawfully discriminatory is concerned, this court has held that all that is required is that the statute apply equally to all members in the class and that as long as there is a valid reason for a classification by the legislature, their determination of the class will not be disturbed.⁴ Neither, so far as we are aware, is there any constitutional prohibition against legislative substitution of an admittedly unlawful status for the required criminal intent in a felony prosecution. For example, criminal intent is not necessary to support a conviction of unlawful cohabitation.⁵ Nor are we impressed by the argument that the statute applies only to those who happen to kill another person on the highways, although we recognize that whether a person injured in an accident lives or dies is largely a matter of chance into which many factors enter; this same argument could be made in regard to the other types of homicide prohibited by law, and it is only those unfortunate enough to have the victim die who can be tried for homicide in any degree.

Appellant’s most potent argument is addressed to the proposition that the prosecutor should not be given a choice of whether to proceed under a felony statute or under a misdemeanor statute under the same set of facts. We agree that this may tend to deny to defendant and others in his class equal protection of the laws, if the same identical facts may be used in prosecutions under two completely integrated statutes, one a misdemeanor and the other a felony. Automobile homicide encompasses a new crime, one not previously a part of Utah law, and as such the facts that go to make this crime are excluded from the old crime wherein they previously fell. The two statutes insofar as they relate to death by automobile by an operator under the influence are irreconcilable, and we hold that the last pronouncement of the legislature, the automobile homicide law, is controlling on prosecutions under the facts therein prescribed.

Involuntary manslaughter is defined ⁶ as : “The unlawful killing of a human being without malice * * * in the commission of an unlawful act not amounting to a felony * * However, if the legislature sees fit to single out the unlawful act of driving while intoxicated as being in a special classification, we think it is within their legislative prerogative to do so.

. In our opinion the result is the same as if the legislature had amended the involuntary manslaughter statute by adding after the word felony the following:

“Provided, however, that if the unlawful killing of such human being results from driving an automobile while under the influence of intoxicating liquor or narcotic drugs he shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment in the state penitentiary for a period of not less than one year nor more than 10 years.”

Appellant’s contention that the act contains more than one subject not clearly expressed in its title is addressed to the fact that the act prohibits not only causing- death while driving under the influence of intoxicating liquor but also causing death while driving under the influence of narcotic drugs or under other drugs to a degree which renders the driver incapable of safe operation of his vehicle; whereas the title prohibits only “causing death through the operation of a motor vehicle while intoxicated.” However, the title does not have to be an index to the act. All that is required is that the subject matter of the act be reasonably related to the title and that all parts of the act be reasonably related to each other. It appears from both the title and the act itself that the act places penalties upon the causing of death through operation of a motor vehicle while the operator is not in possession of normal faculties and reflexes.

Defendant’s last argument is addressed to the admission in evidence of the results of a blood test which he contends was taken from him without his consent. As to whether or not defendant was capable of consenting and did consent to the blood test, the record is conflicting. The state produced a signed consent allegedly signed by defendant, although defendant stated that he could not remember signing the document. In addition he contends that if he did sign it he did so under the influence of drugs administered during the course of his treatment following the accident. However, we are of the opinion that there was sufficient evidence of consent for the court to allow the exhibit into evidence and to permit the jury to consider it.

Conviction affirmed.

CROCKETT, C. J., concurs. WADE and McDONOUGH, JJ., concur in the result.

1 . Article VI, Sec. 26.

2 . Article I, Sec. 7.

3 . Article VI, Sec. 23.

4 . State v. Kallas, 97 Utah 492, 94 P.2d 414.

5 . State v. Barlow, 107 Utah 292, 153 P.2d 647.

6 . Section 76-30-5, U.C.A.1953.