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State v. Yarborough9/13/1995
luntary manslaughter and homicide by vehicle are the same. The test, once again articulated in Blevins and reiterated in Ibn Omar-Muhammad, for determining whether two offenses are the same or separate, is:
"Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[,] is whether each provision requires proof of an additional fact which the other does not."
Blevins, 40 N.M. at 369, 60 P.2d at 210 (quoting Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932)); (quoting Blevins, 40 N.M. at 369, 60 P.2d at 210) (quoting Blockburger, 284 U.S. at 304)). We have determined that the mental state for involuntary manslaughter is criminal negligence, irrespective of the underlying statutory basis for the conviction. Criminal negligence includes reckless, wanton, or willful disregard of the consequences. See . Similarly, "the mental state required for vehicular homicide is that of conscious wrongdoing. Conscious wrongdoing has been defined as the purposeful doing of an act that the law declares to be a crime." (citation omitted). Given that the mental states for both crimes are the same, we conclude that the involuntary manslaughter statute does "include the same matter" as the homicide by vehicle statute, and the two offenses are the same. The general/specific rule is therefore applicable, and Defendant should have been charged under the homicide by vehicle statute. Therefore, we hold that the legislature did not intend to permit similar prosecutions under the older, more general statute of involuntary manslaughter. See .
29. Because we conclude that the homicide by vehicle statute preempts the involuntary manslaughter statute in unintentional vehicular homicide cases, Defendant here cannot be retried for involuntary manslaughter using the criminal negligence standard. Defendant cannot be retried for homicide by vehicle and great bodily harm by vehicle since the jury has acquitted him of those charges.
Conclusion
30. In Conclusion, we hold that a showing of criminal negligence is required for conviction of homicide by vehicle or involuntary manslaughter. Consequently, there is no such crime as involuntary manslaughter by careless driving. Further, unintentional vehicular killings can no longer be prosecuted under involuntary manslaughter, but must be charged under the more specific statute of homicide by vehicle. Accordingly, we reverse Defendant's conviction.
31. IT IS SO ORDERED.
BENNY E. FLORES, Judge
WE CONCUR:
RUDY S. APODACA, Chief Judge
THOMAS A. DONNELLY, Judge
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