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State v. Smythe5/28/1991
This is a State appeal from orders granting a motion to dismiss Counts I and II of an indictment. Those counts charged appellee with manslaughter under HRS § 707-702(1)(a). The State also appeals from the order denying its oral motion for reconsideration.
Appellee drove his van into the back of a car, killing two occupants. For each death he was indicted for manslaughter (HRS § 707-702(1)(a)) (Counts I and II), and negligent homicide in the first degree (HRS § 707-703) (Counts III and IV). He was also indicted for driving under the influence under HRS § 291-4(a)(1) and (2) (Counts V and VI). After the court had based its denial of one of appellee's motions in limine on the ground that negligent homicide was a lesser included offense of manslaughter, appellee offered to plead no contest to the two counts of negligent homicide and the two counts of driving under the influence . Under HRPP 11(b) such pleas can be entered only with the consent of the court. The State opposed the entry of the pleas but the court allowed them, and adjudicated appellee guilty of the crimes charged in those counts. The appellee then moved to dismiss the two counts of manslaughter under HRS § 701-109(1)(a) and the court granted the motion. From the dismissal of those two counts, this appeal is taken.
The State argues that negligent homicide is not a lesser included offense of manslaughter because negligent homicide requires the proof of use of a vehicle in causing the homicide, an element which is not necessarily included in a manslaughter charge. The State's argument is based upon HRS § 701-109(4)(a) and (c) which read:
A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission.
The State argues that HRS § 701-109(4)(a) is not applicable since to prove negligent homicide, the State must prove the use of a vehicle, and this is not the same or less proof than is necessary in the case of manslaughter, since manslaughter can be committed without the use of a vehicle.
With respect to HRS § 701-109(4)(c), the State argues that the offense of negligent homicide differs in that a vehicle must be used, and that thus it does not differ "only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission."
Both sides note however that in the Commentary on the section the revisors stated with respect to the problem of negligent homicide:
For example, negligent homicide would probably not be included in murder under (a), because negligence is different in quality from intention. It would obviously be included under (c), because the result is the same and only the required degree of culpability changes.
As in the case of manslaughter, murder can be proved without proving the use of a vehicle, so that comments to the code reflect that the use of a vehicle in negligent homicide was not intended to exclude it as a
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