State v. Myers , 171 W. Va. 277 ( 1982 )

NEELY, Justice:

This is an appeal from a jury verdict that found the appellant, Clarence E. Myers, guilty of two counts of involuntary manslaughter arising from an automobile collision. The Circuit Court of Randolph County sentenced the appellant to two one-year jail sentences to run consecutively.

During a rainstorm on the evening of 15 August 1980, the appellant was driving his blue Charger south on Route 250 at speeds of 70 to 80 miles per hour in both the fifty-five and thirty-five miles per hour zones. Having just passed a southbound vehicle, the appellant was still in the northbound lane when he collided with an approaching vehicle. As a result of the collision two people in the northbound vehicle died.

The appellant was indicted on two counts of involuntary manslaughter at the September 1980 term of the Randolph County Circuit Court. The two counts were tried together in one trial. The jury found him guilty on both counts, and the trial court sentenced the appellant to one year in the Randolph County Jail for each charge. The court specified that the sentences were to be served consecutively.

The appellant contends that the trial court erred in directing that his sentences be served consecutively.¹ For authority he cites Myers v. Murensky, 162 W.Va. 5, 245 S.E.2d 920 (1978), in which we ruled that our negligent homicide statute, W. Va. Code, 17C-5-1(a) [1976], creates only one criminal offense regardless of the number of deaths caused by the single act of negligent driving. The appellant argues that this construction was made applicable to our involuntary manslaughter statute, W.Va.Code, 61-2-5 [1923], in State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979), in which we held that the State may use either the negligent homicide statute or involuntary manslaughter to charge an offense arising out of an automobile accident resulting in death.² However, upon considering the matter in the present context, we conclude that we incorrectly interpreted the legislative intent in our negligent homicide statute and that the legislature intended the punishment to reflect the gravity of the crime’s consequences. Therefore we overrule Murensky to the extent that it prohibits consecutive punishments for acts that result in more than one death.

In so holding we are following the majority view that multiple deaths resulting from a single negligent operation of a motor vehicle may be charged and punished as separate offenses. See Murensky, 162 W.Va. at 6, 245 S.E.2d at 921. These jurisdictions recognize that the crime charged is one against people as opposed to property. When a crime is committed against people rather than property, the general rule is that there are as many offenses as there are individuals affected. See e.g., Vigil v. State, 563 P.2d 1344 (Wyo. 1977). Cases in a majority of jurisdictions also reason that consecutive punishments are justifiable because the gravamen of the offense is the damage it does, not the recklessness it implies. See, e.g., State v. Whitely, 382 S.W.2d 665 (Mo.1964).

This second argument is especially applicable when the charges are brought under our involuntary manslaughter statute which is found in Article 2, Chapter 61 of the W.Va.Code which is entitled “Crimes Against the Person.” However, we think it is also applicable to the negligent homicide statute which is found in Chapter 17C of our statutes dealing with motor vehicles. To paraphrase the Supreme Court of Wisconsin when it discussed homicides resulting from drunk driving in State v. Rabe, 96 Wis.2d 48, 76, 291 N.W.2d 809, 822 (1980), one who drives recklessly “may well expect to contribute to ‘awesome carnage’ and ... when multiple deaths result, may expect multiple consequences.”

We agree with the Supreme Court of Wisconsin- that the proper analysis is not that a reckless driver is victimized when he causes more than one death. Rather the proper analysis is that a reckless driver who causes only one death is fortunate given the likelihood that more deaths could have resulted.

Our holding today is given further support by Justice Miller’s reasoning in State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440, 446 (1980), where he wrote:

There can be little doubt that one function of a criminal justice system is to enable those individuals who have been victimized by the criminal acts of another to find some individual vindication of the harm done to each. Certainly, the degree of culpability, and as a consequence the degree of punishment, must bear some proportion not only to the magnitude of the crime but also to the number of victims involved. These are fundamental considerations that society expects from a criminal justice system.

As Justice Miller noted, it is consistent with the goals of our criminal justice system that both society as a whole and the relatives of the victims individually be able to attain some sense of vindication by punishing the appellant separately for each outrageous consequence of his negligent actions. The only question is whether such punishment violates the double jeopardy clause.

We have ruled that double jeopardy applies in three basic situations:

“The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.” Syl. pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977); See United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975).

Our recent cases on double jeopardy have tended to focus on the first two situations, with particular attention to the problem of the propriety of multiple trials where two or more offenses are part and parcel of the same transaction. E.g. Watson v. Ferguson, supra; State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125, cert. denied, 449 U.S. 1036, 101 S.Ct. 613, 66 L.Ed.2d 498 (1980). The third situation described by our Court in Conner, namely, the protection against multiple punishments, is supported by reasoning separate and distinct from that used to prohibit multiple trials. Multiple trials are barred in order to protect individuals from prosecuto-rial badgering and harassment. The double jeopardy bar against multiple punishments is to prohibit judges from imposing more penalty than the legislature has sanctioned. See State ex rel. Watson v. Ferguson, 166 W.Va. at 346-347, n. 14, 274 S.E.2d at 445, n. 14.

The double jeopardy prohibition against multiple punishments is usually encountered in two types of cases. The first is where the defendant is charged with committing both a lesser included offense and the greater offense. In these cases the courts will examine legislative intent to determine whether multiple punishments are mandated. See, e.g., Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977). If they are mandated, the multiple punishments pass double jeopardy scrutiny. The second type of case involves instances where there has been an ongoing criminal scheme such as embezzlement and there is a question of whether such activity constitutes one crime or several separate crimes. E.g., State v. Riley, 169 W.Va. 354, 287 S.E.2d 502 (1982) (check forging). In such cases courts focus on the evidence to determine whether there have been separate crimes meriting separate punishments. Id.

The case before us today is unlike either of these two types of eases. The appellant was charged with two counts of the same offense which distinguishes it from the first type. It is different from the second type because there is no question that the charges arose as a result of a single act. However, when faced with a case like this, courts in other jurisdictions use the analysis of both of the above types of double jeopardy cases. They examine the legislative intent to permit multiple punishments as indicated by the first type of case, and they examine whether the facts constitute separate offenses as done in the second type. E.g., State v. Rabe, supra. Having already concluded that the legislature, by placing the involuntary manslaughter statute in the article of the Code dealing with crimes against the person, intended multiple punishments to be warranted in the instance of multiple deaths, we turn to an examination of whether the evidence demonstrates that there were separate offenses.

We note that evidence that proves one charge of involuntary manslaughter in this ease is not sufficient to prove the second. In any case of homicide there must be proof of the identity of the deceased and the causation of death. In such a case as this, a defendant’s proof that one of the victims died of a heart attack prior to the collision would be a complete defense to the charge of involuntary manslaughter. This difference in proof between the two charges, permits multiple punishment in such a case. What we have described is essentially the “same evidence” test, see Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), applied to the double jeopardy bar against multiple punishments for the same offense. Therefore, in consonance with our holding in State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125, cert. denied, 449 U.S. 1036, 101 S.Ct. 613, 66 L.Ed.2d 498 (1980), and State ex rel. Watson v. Ferguson, supra, we hold today that where there is legislative intent to permit multiple punishments arising from the same act, multiple punishments are permissible as long as each charge meriting punishment requires at least one piece of evidence that is not needed to prove other charges. Applying this rule to the case before us, we hold that when charged under either the negligent homicide statute W.Va. Code, 17C-5-1 [1981], or the involuntary manslaughter statute, W. Va. Code, 61-2-5 [1923], for multiple deaths resulting from a single act, a defendant may receive as many consecutive sentences as there were deaths.

In affirming the consecutive sentences in the case before us, we note that there is no ex post facto problem because the Muren-sky prohibition against such sentences had never been applied to our involuntary manslaughter statute. State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979), held only that the State could draft charges under either the negligent homicide statute or the involuntary manslaughter statute in a situation involving an automobile accident that resulted in death. Nowhere in that opinion was there a specific finding that the limitations of consecutive sentencing under the negligent homicide statute also applied to the involuntary manslaughter statute. Today’s interpretation of our involuntary manslaughter statute is entirely in consonance with the overwhelming weight of authority elsewhere, see Muren-sky, supra, and presents no departure from what has always been considered the law of this State.

Accordingly for the reasons stated above the judgment of the Circuit Court of Randolph County is affirmed.

Affirmed.

1 . The appellant also assigned as error the court's decision to admit the victim's death certificates after the close of the State’s case, the court's refusal to instruct the jury that the accident was caused by circumstances beyond the appellant’s control, and the prosecutor’s characterization of the appellant's driving during closing argument. Having examined the record as to the merits of these three assignments, we find them to be frivolous and hence not fairly raised.

2 . The Legislature has recently amended W.Va. Code, 17C-5-2 [1981] to provide that anyone driving under the influence of liquor or drugs who “does any act forbidden by law or fails to perform any duty imposed by law” shall be guilty of a criminal offense if that act or omission proximately causes the death of a person. If the act or failure is committed in reckless disregard of the safety of others and the influence of alcohol or drugs is a contributing cause to the death, then the driver is guilty of a felony punishable by confinement in the penitentiary for not less than one nor more than three years and a fine of not less than one thousand dollars. W.Va.Code, 17C-5-2(a) [1981], Otherwise the act or neglect is a misdemeanor punishable by confinement in the county jail for not less than ninety days nor more than one year and a fine of not less than five hundred nor more than one thousand dollars. W. Va.Code, 17C-5-2(b) [1981],