Forbes v. State

ELDRIDGE, Judge. This case presents the question of whether one who unintentionally causes a death as a result of the grossly negligent operation of a motor vehicle may be convicted of common law involuntary manslaughter. We shall reaffirm the holding in State v. Gibson, 254 Md. 399 , 254 A.2d 691 (1969), affirming State v. Gibson, 4 Md.App. 236 , 242 A.2d 575 (1968), that common law involuntary manslaughter does not encompass such conduct. The conduct may, however, be the basis for a conviction of statutory manslaughter by automobile, Maryland Code (1957, 1987 Repl.Vol., 1991 Cum.Supp.), Art. 27, § 388. ³³⁷ The pertinent facts of this case are as follows.

After an argument between the defendant, Danney Forbes, and the victim, George Michael, Forbes got into his automobile which was in front of Michael’s house. According to the State’s witnesses, Michael was standing in the street in front of Forbes’s car when Forbes “revved” his engine, “spun his tires” and then drove his car toward Michael. The State’s witnesses testified that Forbes made no attempt to go around Michael but, instead, drove straight at the victim and struck him. A defense witness, however, testified that Michael was standing to the side of Forbes’s automobile, that when Forbes began to drive, Michael stepped forward, that Forbes swerved in an attempt to avoid Michael, but that Michael leaped up on the hood of Forbes’s car.

The witness further stated that Michael rolled across the hood toward the back of the car and then fell off of the car. Michael subsequently died from head injuries received in the collision. Forbes was charged with murder in a single count indictment filed in the Circuit Court for Baltimore County. The charge was in the statutory form which includes common law manslaughter.

See Art. 27, § 616. Forbes was not, however, charged with the statutory offense of manslaughter by automobile under Art. 27, § 388. 1 ³³⁸ Forbes elected to be tried by a jury. As previously indicated, the State’s evidence at the trial supported the State’s position that Forbes intended to strike the victim with his car, whereas the testimony of a defense witness tended to support the defendant’s contention that he did not intentionally hit the victim. During closing argument, defense counsel argued to the jury that there was no intent to kill and “that what occurred was negligence.” Defense counsel then attempted to read to the jury Art. 27, § 388, and to argue that § 388 “exactly addresses the facts of this case and he [the defendant] was not charged” with violating § 388.

The prosecuting attorney objected to the argument, and the circuit court would not permit defense counsel to make the argument to the jury, even though defense counsel pointed out: “Your Hon- or, there is abundant case law that says I am allowed to argue that Mr. Forbes is guilty of a crime the State has not charged.” The circuit court instructed the jury on first degree murder, second degree murder, and common law manslaughter including both voluntary manslaughter and involuntary manslaughter. In addition, the jury was given a verdict sheet listing separately (1) murder in the first degree, (2) murder in the second degree, (3) voluntary manslaughter, and (4) involuntary manslaughter. The jury determined that Forbes was not guilty of murder in the first or second degree and was not guilty of voluntary manslaughter. The jury, however, found him guilty of involuntary manslaughter.

The defendant moved for a judgment of acquittal or, in the alternative, a new trial, arguing, inter alia, that “the jury’s verdict is contrary ³³⁹ to the legislature’s intent in enacting the statutory offense of Manslaughter By Automobile.” The defendant specifically relied upon State v. Gibson, supra. The motion was denied, and Forbes was sentenced to ten years imprisonment. Forbes appealed, and this Court issued a writ of certiorari prior to argument in the Court of Special Appeals. Forbes challenges his conviction on two grounds.

First, he argues that, in light of the enactment of the manslaughter by automobile statute (Art. 27, § 388), common law involuntary manslaughter does not encompass the conduct found by the jury to exist in this case, namely causing a death by driving an automobile in a grossly negligent manner but without any intent to kill. Second, Forbes contends that the circuit court erred in not allowing him to mention Art. 27, § 388, and to argue that if Forbes was guilty of an offense, he was guilty under § 388 which was not charged. Since we agree with Forbes’s first argument, and since a reversal on that ground will preclude a re-trial, we shall not dwell upon the second argument. We note, however, that the defendant’s second argument appears to be correct under the principles set forth in Hawkins v. State, 291 Md. 688, 693-695 , 436 A.2d 900, 902-904 (1981).

Prior to the enactment of Art. 27, § 388, by Ch. 414 of the Acts of 1941, the conduct which the jury found to exist in this case would have constituted an offense covered by the indictment, i.e. common law involuntary manslaughter. See Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928). Nevertheless, as made clear in State v. Gibson, supra, 254 Md. 399 , 254 A.2d 691 , affirming and adopting the opinion in State v. Gibson, supra, 4 Md.App. 236 , 242 A.2d 575 , by the enactment of Art. 27, § 388, the General Assembly repealed that portion of the crime of common law involuntary manslaughter dealing with unintended homicides resulting from the operation of motor vehicles. In State v. Gibson, the defendant was charged in a multicount indictment with homicide resulting from a motor ³⁴⁰ vehicle collision.

The first four counts charged the defendant with common law involuntary manslaughter based on his driving a motor vehicle in violation of the motor vehicle laws and the laws relating to alcoholic beverages. The remaining counts related to other alleged offenses. The defendant moved to dismiss the first four counts, arguing that, in light of Art. 27, § 388, the offense of common law manslaughter did not encompass the defendant’s actions. The Circuit Court for Baltimore County granted the defendant’s motion to dismiss the first four counts.

The State then nol prossed the remaining counts and took an appeal. The Court of Special Appeals in State v. Gibson affirmed the dismissal of the common law involuntary manslaughter counts. The intermediate appellate court, in an opinion by Chief Judge Murphy, held that common law involuntary manslaughter “no longer has any application to those cases where the homicide results unintentionally from the operation of a motor vehicle” and that “such cases can only be prosecuted under [Art. 27,] Section 388.” State v. Gibson, supra, 4 Md.App. at 245 , 242 A.2d at 581 . In reaching the conclusion that unintentionál motor vehicle homicides could not be prosecuted as common law involuntary manslaughter, the Court of Special Appeals pointed out inherent inconsistences in a contrary holding.

For example, if it were concluded that § 388 did not remove unintentional motor vehicle homicides from common law involuntary manslaughter, an individual could be convicted of both crimes. Common law involuntary manslaughter carries a ten year maximum term of imprisonment and is a felony, whereas § 388 then provided for a three year maximum term of imprisonment and is a misdemeanor. Nevertheless, both offenses require the same proof of negligence, i.e., gross negligence. 2 Therefore, prosecutors would never utilize § 388 since the same proof would lead to a conviction under ³⁴¹ the common law involuntary manslaughter offense. This would render § 388 nugatory.

See also Comment, The Other Tragedy of Vehicular Related Deaths in Ohio’s Criminal Statutes, 16 U. Dayton L.Rev. 183, 196-205 (1990). The Court of Special Appeals concluded in Gibson as follows ( 4 Md.App. at 247 , 242 A.2d at 581-582 ): “We conclude, therefore, that in enacting Section 388, the Legislature intended to deal with an entire subject matter—unintended homicides resulting from the operation of a motor vehicle—and that the common law crime of involuntary manslaughter, when based on homicides so occurring, is in conflict with the statute and must yield to it to the extent of the inconsistency. See Lutz v. State, 167 Md. 12 [ 172 A. 354 ]. We observe in this connection that in enacting Section 388, the Legislature expressly provided (Section 2 of Chapter 414 of the Acts of 1941) that ‘all acts inconsistent with the provisions of this Act are repealed to the extent of such inconsistency.’ While the crime of manslaughter is not defined by statute in Maryland, it is, as