Thomas v. State4/18/1977
r conviction; and their so-called negligent homicide statute contains the identical standard which appears in ours. In that case the court held, in face of a contention by the State that these statutes contained different elements and that therefore the latter did not repeal or supersede the earlier statute, that because the statutes provided different punishments for identical acts they were repugnant and inconsistent. We adopt that holding and find most persuasive the authorities therein cited at 473 P.2d 288, being State v. Biddle, 6 Terry 244, 45 Del. 244, 71 A.2d 273; State v. Collins, 55 Wn.2d 469, 348 P.2d 214; State v. Morf, 80 Ariz. 220, 222, 295 P.2d 842; State v. Davidson, 78 Idaho 553, 309 P.2d 211; and State v. London, 156 Maine 123, 162 A.2d 150; and we find the rule therein cited and as gleaned from those authorities completely applicable to our situation.
Since Atchley, the North Dakota Supreme Court has examined this proposition in State v. Hagge, No.Dak., 224 N.W.2d 560, and held that although under their law a conviction for involuntary manslaughter may be based upon ordinary negligence, the later negligent homicide statute, with the same standard as ours and which provided for a lesser penalty, was inconsistent and repugnant to the manslaughter statute and superseded it. This was done in reliance upon the rule that "Where a later statute imposes a different punishment, either more or less severe, for the same or substantially the same offense, the later statute is ordinarily held to repeal the earlier one," 224 N.W.2d at 565. Also, see 1A Sutherland Statutory Construction, § 23.26, p. 270 (4th Ed.), and 73 Am.Jur.2d Statutes, § 418, p. 522.
Because § 31-232(a) proscribes substantially the same behavior as does the questioned portion of § 6-58, and because the penalty provided in § 31-232(a) is substantially less, we must hold that these two statutes are repugnant and conflicting insofar as the latter portion of the involuntary manslaughter statute is concerned and that therefore § 31-232(a) does repeal by implication the last phrase in § 6-58 insofar as it is applied to deaths occasioned by negligent operation of a motor vehicle.
Although the foregoing necessitates a reversal of this case, it is necessary to consider certain asserted errors in connection with the instructions in this case so that they will not arise in a retrial hereof.
Appellant's first contention is that it was error to give Instruction 8. To support his claim of error, appellant asserts that this submitted a new offense to the jury, namely that the accident occurred while driving under the influence. We find no basis for this contention because the instruction as given deals only with the presumption which arises from the chemical analysis of the defendant's blood and does not set out that such activity is criminal. Appellant makes sole reliance upon Cutshall v. State, 191 Miss. 764, 4 So.2d 289. There is little comfort to appellant in that case because of the factual distinction. Defendant therein was charged with manslaughter based upon culpable negligence, and the instruction given, upon which the reversal was based, would have required the jury to find him guilty of culpable negligence if he had been under the influence of intoxicating liquor. This case definitely recognizes that intoxication can be a relevant evidential factor in determining culpable negligence. Evidence that a defendant has been drinking is generally admissible on the issue of negligence and can be considered by the jury in determining the negligence of the defendant, State v. Chekmizoff, 82 Ariz. 176, 309 P.2d 796, 798; Hunt v. State, Fla., 87 So.2d 584, 585; Clay v. State, 211 Md. 577, 12
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