delivered the opinion of the Court.
Plaintiff in error, hereinafter referred to as defendant, was convicted of causing a death while driving an automobile under the influence of intoxicаting liquor in contravention of the provisions of C.R.S. ’53, 40-2-10. The trial court sentenced the defendant to a term in the state penitentiary and he seeks reviеw on writ of error.
The statute above cited in pertinent part reads as follows:
“Any person while under the influence of intoxicating liquor * * *, who causes the death of another by operating or driving any automobile * * * in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a felony * * * ”
*98 The informаtion in the instant case contained a single count, and charged that at the time and place mentioned the defendant “ * * * then and there while undеr the influence of intoxicating liquor, did unlawfully and feloniously cause the death of one Larry Silva by operating and driving a motor vehicle in a recklеss, negligent and careless manner, or with a reckless and wanton disregard of human life and safety; * * * ”
The trial court gave fourteen instructions to the jury. The only instruction given which sets forth the essential ingredients of the crime was instruction number six which reads as follows:
“THE STATUTE OF THE STATE OF COLORADO PROVIDES:
Any person, while under the influence of intoxicating liquоr or of any exhilarating or stupefying drug, who causes the death of another by operating or driving any automobile, motorcycle or other motоr vehicle in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a fеlony.”
It will be readily seen that this instruction is in the words of the statute, and clearly indicates that the accusation made is in the alternative. It is alleged that the defendant either caused the death while driving an automobile “in a reckless, negligent and careless manner” or while driving with a “wanton or reckless disregard of human life or safety.”
Such allegation is vague and uncertain, and fails to inform the accused with certainty whether the alleged negligenсe, or carelessness upon which the prosecution relies is simple negligence, or of conduct amounting to a wanton or reckless disregard of human life or safety. The use of the disjunctive “or” in the statute cannot be ignored, nor can it be construed to mean “and.” The authorities are numerous in the support of the proposition that to validate an information based upon a statute under which the several means by which *99 a сrime may be committed are set forth in the disjunctive, the charge should be alleged in the conjunctive.
In
Wilson v. People,
In
Kallnbach v. People,
In the case of
Rinehart v. People,
Notwithstanding the above cited cases, in
Goodell v. People,
“The information in this case charges, as it should, that defendant caused a death while driving under the influence of intoxicating liquor and “with a reckless and wanton disregard of human life and safety.” Thus it will be seen that tо support a conviction of felony under the statute involved the negligence of a defendant, if he was in fact negligent, must be more than simple nеgligence. It must be criminal negligence amounting to wantoness and recklessness. On this point the court refused to give an instruction tendered by the defendant which told the jury that the degree of negligence must be higher in a criminal case than simple negligence. The court instead gave the following instructiоn:
“The Court instructs the jury that ‘negligence’ is defined as a failure to do what an ordinarily careful and prudent person would have done under the circumstаnces of the case, or the doing of something that an ordinarily careful person would not have done under the circumstances of the case. In other words, there is want of that care and prudence which an ordinarily careful and prudent person would exercise under all circumstances of the case.
“Negligence is never presumed, but must be proven by the evidence beyond a reasonable doubt, the same as any other fact.”
“It will be seen that this instruction falls far short of advising the jury of the elements necessary to establish criminal negligence as required in a prosecution under the statute involved.”
The information in the Goodell case (supra) alleged that the defendant while under the influence of intoxicating liquor caused the death of one Parker “by operating and driving a motor vehicle in a reckless, negligent and careless manner, and with a reckless and wanton disregard of human life and safety.” The accusation having been made in the conjunctive, it was essential in *101 order to uphold a convictiоn in that case that the higher degree of negligence should be established. As applied to the specific allegation of the information, the statement contained in the Goodell opinion “thus it will be seen that to support a conviction of felony under the statute involved the negligenсe of a defendant, if he was in fact negligent, must be more than simple negligence” was a correct statement.
It does not follow, however, from the Goodell decision that a valid information under this statute cannot be predicated upon intoxication of a driver coupled with simple negligence.
In Goodell v. People (supra), we said: “The failure of the court to give an instruction on proximate cause was erroneous.”
In the instant case, no instruсtion was given on proximate cause; no instruction was given upon any degree of negligence, and no instruction was given to define the term “wanton or reckless disregard of human life or safety.” Failure of the trial court to instruct upon these elements of the alleged offense was error.
Thе judgment is accordingly reversed and the cause remanded for such further action as may be deemed proper consistent with the views herein expressed.