*1 Respondent, Dakota, STATE North TJADEN, Appellant.
Lester
No. Dakota.
Supreme of North Court 7, 1955.
March
Hyland, Conmy, Bismarck, & Foster for appellant. Christianson, Gen., Atty. T.E. T. H. H. Thoresen, Atty. G.en., Asst. Norman B. Atty.,
Jenson, Bismarck, State’s re- spondent. pushed
GRIMSONj
ditch into the
Judge.
across the
field.
stop
bus came
on the
west shoulder
3, 1952, three
evening of October
theOn
feet, according
of the highway
some
Mandan, members
people from
carloads
testimony,
point
to defendant’s
south of the
Army,
meet-
attended
Salvation
right
collision.
one-half of
Minot,
After
Dakota.
ing at
North
front of the bus and the
front door
P.M.,
10:30
they
about
meeting
left Minot
badly
damaged.
Bismarck
proceeded
towards
south
mile
When about a
Highway No. 83.
U. S.
Phillips
headlights
Mr.
had seen the
one of the
a half north
Bismarck
*4
the bus and had endeavored to warn those
cars,
Phillips, became low
L.
driven
John
At
they only
in the cars but
had
look
time to
his was the
that
time
gasoline.
on
through the
window
bus
back
as the
the west side of
He
to
middle car.
drove
crushed
After
the
Mr.
them.
collision
car,
road,
driven
signaled
advance
the
the
Phillips
found
some members of his
return,
Tollerud,
di-
to
and
Dave
Lt.
party
injured.
He ran
the bus
him,
by Eu-
driven
the car behind
rected
help
driver asking
go
him to
into
for
town
Ellsworth,
up behind his car
gene
to drive
and an
Amongst
injured
ambulance.
the
the road. The
the west side
state’s
on
of
one,
in the Ellsworth car was
Edward
parked
cars were
witnesses claimed these
Geier. Soon an ambulance came and took
pavement.
or three feet west
two
hospital
him
where he
treated
was
carefully noted their
Lt. Dave Tollerud
and was
seriously injured.
found to be
arranged
position.
It
then
that Lt.
was
surgical
A
operation
performed
was
on
Tollerud,
go into Bismarck for
should
him. He died on October
1952 of
meantime some
the
gasoline.
the
of
pulmonary embolism.
changed
remaining cars
people in the two
got
seats or
out and walked around.
Thereafter
the
Da
State of North
then was
o’clock A.M. of
time
about one
brought
against
kota
proceedings
defend
4th.
October
ant,
Tjaden, charging
Lester
him with
Tjaden
evening
That same
Lester
was manslaughter
in the first
while en-r
passenger
driving
evening
bus from
misdemeanor,
gaged in the
of a
commission
Highway No.
to Bismarck on
83. As
Minot
to wit:
driving.
reckless
The defendant
approached
coming
Bismarck
over a was found guilty
coming
little rise he saw a car
from the
degree,
and sentenced
to serve
lights
tail
south and later noticed the
of a year
county jail..
A
motion for
patrolman
car ahead of
him.
testi- new trial
made and
de
denied.
a half mile
fied that
rise was
north
appealed
fendant
the judgment
from
place
The defendant
collision.
denying
the order
the motion
new
for a
'
it was a block or block and
said
a half.
Many assignments
trial.
of error were
lights
car
He claims
north bound
made both
on the motion
a new trial
so he
not see the tail lights
blinded him
did
appeal,
and on
and in the briefs these er
anymore but
driving
that he
on
rors are
classified
defendant under
says
payment.
He
west side
headings
six
as follows:
passed
just as he
the north bound car he
saw
Ellsworth car
front of
quash
1. Denial of the motion to
standing
He
it was
three or
him.
claims
the information.
pavement.
on
He
feet
re-
four
2. Admission of evidence.
speed
his
from 50 miles down to 45
duced
testimony
per hour
his
according
miles
* * *
of counsel
3. Misconduct
applied
Immediately
his brakes.
Prejudicial
argument.
right front
occurred. The
corner
collision
insufficiency of the evidence
bus
with the
4. The
-the
collided
left
rear
Geier
killed
the Ellsworth car which was
to show that
demolished.
Phillips
side-swiped
car was
accused.
misdemeanor, wit,
sion of
driv-
in the instructions
Error
5..'
ing.,
particulars
Then
court.
the amended bill
added that the defendant “while so
culpable negli-
to define
6. Failure
careless,
in a
heedless,
manner
and reckless
insufficiency of the evi-
gence and the
upon
properly
did not
observe other vehicles
prove culpable negligence.
dence to
his
highway
said
and failed to have
proper
motor vehicle under
and reasonable
will,
therefore,
only these
consider
We
control,
thereby
did run into and collide
subjects
assignments
All other
appeal.
on
with
highway
another
vehicle
said
abandoned. Olson v.
of error are deemed
injuries
bodily
did
cause
then and there
Co.,
Armour
N.D.
N.W.
&
one,
Geier,
Edward
then
there an occu-
N.D., 66
Josephson,
Clark v.'
N.W.2d
vehicle,
pant
injur-
of another
from which
and cases cited.
ies said Edward Geier died.”
opening of the trial the at-
Prior to the
torney
made a motion to
in an
necessary
for the defendant
It is not
to state
quash
ground
information the
information
details
the acts which
*5
facts to constitute
did not state sufficient
constitute the crime
when the
charged
substantially
public
a
and did
essential elements of the
forth
offense
crime are set
requirements
sufficiently
person
of the code
a
conform to
to enable
common
the
particulars understanding
in that it
not state sufficient
to know what
is meant or
did
give
Egan,
to
the
and defendant notice
intended. State v.
court
S.D.
charged.
sufficiency
the N.W. 642.
test
the
an
offense
to be
At
One
the
intended
request
protect
for a bill of
information is whether it
the
time
a
will
same
he filed
subsequent
particulars.
particulars
against
prosecution
was
accused
a
A bill of
fur-
opening
for the
the
of the trial
same offense.
nished. Then at
quash was renewed on the
the motion to
certainty,
“Under modern rules as to
claim
grounds
the
made
same
and
indictment,
information,
the
com-
not sufficient. After
particulars was
bill of
plaint
specifically
sufficient if it
states
furnished an amended
argument
the state
the elements of the offense with suffi-
quash
particulars.
to
The motion
bill of
particularity
apprise
cient
to
accused of
denied. This was
again
and
was
renewed
charged
the
to
him to
crime
and
enable
judg-
urged in motion
arrest of
again
prepare
permit
his defense and
con-
denied.
ment which was also
acquittal
pleaded
viction or
to be
in bar
prosecution
of a subsequent
for the
provides
29-1110,
NDRC
Sec.
same
offense.”
Indictments
C.J.S.
be valid and’sufficient
the information shall
Informations,
p.
See
979.
§
which the de-
charges
offense for
if it
the
Automobiles,
Berry,
also
Sec. 5.347
“by
prosecuted
using the
is being
fendant
p. 512;
Bolsinger,
State v.
221 Minn.
by statute and
given'
name
to the offense
491.
N.W.2d
particulars
give
to
sufficient
intended
notice of
offense
the defendant
The information
the instant case
The name of the defendant
charged.”
to be
meets
tests and the
mo
these
denial of the
29-1114, NDRC 1943.
must be stated. Sec.
quash
proper.
tion to
was
to
are
be construed
phrases
Words
acceptance,
according
usual
or ac-
to their
makes
assignments
Defendant
nine
signification.
legal
to
cording
their
Sec.
of error
the admission of evidence.
iNDRC
All
assigned
on
on the over
errors.
ruling
objections
name of the
stating
questions propounded
to
After
defendant
attorneys
he committed
crime of man-
for
state. The first
degree by
questions
the first
two
reference
slaughter
tó the situation
out
set
almost in
existing
the information
after the collision. The third
the statute
man-
language
question
was
as to the condition
of the
perpetrated
visibility
the commis- weather and the
at
slaughter
the time of the
by:
reporter.
to
the de
objected
The counsel for
Then the
collision.
objections
interruptions
wit-
fendant made no
questions on the examination
some
stopping during the
and out
argument. Afterwards
ness,
Phillips, as to his reasons
presence
of the
after
of the
the defendant
traveled
distance the bus
as to the
objec-
exception
portions
took
of the
are
to certain
some
Then there
collision.
argument and
for a
was done
moved
mistrial.
question as to what
tions to the
That
an
alleged
Most motion
denied.
as
condition.
injured and their
with the
Portions
called
argument
error.
of the
questions
to the condi-
had reference
differ
from
court’s attention
somewhat
immediately after the collision
existing
tions
portions
really
argued
set
in the brief
out
to matters that were
and were as
assignment
this court. One
forth in
part
Then
is a
set
gestae.
res
there
pf
both was the
com
counsel in
questions
series
asked
doctor as
statement
that,
on
menting
the death of
injuries
Mr.
Mr. Geier
whether the
were the cause of
only way
person
that a
“The
dies is for the
testified to his
Geier’s death.
doctor
stop.
heart to
He doesn’t die
other
and treatment of the deceased.
examination
way.
stops
person
the heart
opinion
dies
give
He was called to
his
based
When
something
and of course
allowing
caused that heart
thereon. There was no error
stop.” Then
opinion.
goes
on and talked about
questioning
him
his
give
quot
embolism and
patrolman,
bleeding.
internal
immediately
who arrived
portion
particularly objected
ed
is what
plat in-
after the accident and had made a
testimony
attorney.
as the
After
dicating
skid
highway,
some
marks
of.the
all,
objected
what counsel stated
improper
was a matter of
to as
re-direct exam-
*6
knowledge
common
and such
clearly
ination.
examination is
matters can
Such
within
prejudicial.
not be said to be
A question
discretion
trial court.
patrolman
as to whether the occu-
objection"
Another
made before the trial
pants
comfortably
could
sit
automo-
argued
court and
is that
here
counsel for the
bile,
on
standing
high-
the shoulder of the
appeal
sympathy.
state made an
for
way,
top
two feet west of the black
objected
portion
to was made in the rebuttal
objected
improper hypothetical ques-
to as
argument after defendant’s counsel had
tion. There was evidence on which that
jury;
his address
made
The assistant
question
patrolman
be
could
based.
attorney general said defendant’s counsel
many years
experience
had had
mercy
had “mentioned the mild
of Christ-
qualified
expert.
as an
mas.” He then called attention to one
family lacking that kind of a Christmas be-
rulings
questions
on all these
negligence
cause of
of the defendant
carefully
by
reviewed
on
the court
continued;
say
I
sym-
“So
as far as
the motion
for new trial. The
knew
pathy
just
is
I think it is
concerned
as much
the situation existing
ques
at the time the
ap-
on
end as on
the other.” Thus it
tions were asked. He had the advantage of pears
mercy”
that the “Christmas
was first
knowing all of the circumstances
in
by
into
brought
argument
defendant’s
happening
cidents
during the trial. The
attorney general’s
assistant
counsel.
line of demarcation between evidence that
bring out that
mercy”
remarks
“Christmas
is
prejudicial
harmless and that which is
equally
applied
to both sides.
very
often a
shadowy one, and may depend
objects to a refer-
Defendant’s counsel
on
happens
what
during the trial. Under
by the
attorney general
ence made
assistant
the circumstances shown in the
record
happenings
highways.
on
to the fatal
our
appear
does not
any
there were
prejudicial
however,
connection,
In that
state’s counsel
errors in the admission
testimony.
simply
not
said “This
must
enter into a de-
portions
The defendant claims that
this
of the liberation
kind.” The losses on the
argument for the state were prejudicial.
are
highways matter
common knowledge
The argument was taken down in
temarks of counsel
shorthand and the
amount
Co., 92
Express
Storage
into Motor
Van &
not to take
the jury
warning
233,
415,
A.
sion of driving. same or similar circumstances.” was reckless in this case alleged fol- jury as charged the that the court On , phrase The use of that in the criminal lows : in number of statute has been construed a guilty of reck- person shall be “Any that generally cases and it has been held he drives vehicle driving if less something in order to constitute a crime highway: expressed phrase more than what is heedlessly in Carelessly and (1) ordinarily must be stated. as understood rights disregard of the wilful or wanton generally It is held that there must be a others; safety of or required higher negligence than is degree of cir- caution and due (2) in a ac- negligent Without to establish default civil ; or cumspection showing It must include some element tion. safety a reckless for the of others. speed in a manner to (3); At a negli- generally The term used is “criminal any likely endanger per- endanger or implied gence” which cannot be from the property another. son or the phrase use of the “without due caution and People circumspection” Hurley, alone. v. driving reckless note that will “You 208, 978; Cal.App.2d 56 P.2d State v. 13 one of these may be committed 154, Bolsinger, 221 Minn. 21 N.W.2d ways.” three State, 205, Phillips 204 v. Ark. 161 S.W.2d charge could According to find Seiler, 747; People Cal.App. 195, v. 207 manslaughter in the guilty 396;. State, 895, Ga.App. P. Croker that he if it' found degree first v. Armstrong, S.E. 92. Neesen vehicle, upon highway “without due ,N.W. 378, 56, Cyc. Iowa 8 Blashfield circumspection.” Defendant caution Automobile, 790, p. 927. Sec. phrase “without due cau contends statute, history 39-0803, of our Sec. circumspection” ordinarily as con tion originally shows that there was nothing more than ordi 'NDRC strued .amounts (cid:127) ways provide three as such intent which do'es no nary negligence driving could be committed. This degree negligence sufficient amount to a High- as was first enacted Sec. 3 driving. of reckless In section to find Chapter 162, Regulations, Chemosky, Tex.Cr.App., way Traffic S.L. parte 217 S.W. Ex 1927, p. It 'was never amended or 247. is held: words1‘with 2d .“The codification circumspection,’ until standing changed due caution out re-arranged punctua- alone, nothing more or the codifiers import less than Then language somewhat. We state be- ordinary referred to as tion is sometimes what side, low, originally that section as failure to exercise side negligence, which .a n person and as codified care that a of ordi enacted NDRC 1943 3, Chap. S.L.1927 Sec. Sec. *9 drives, “Any person guilty shall be any of vehicle “Any person who reck- driving upon if he a carelessly heedlessly drives vehicle a less
upon highway n highway: (cid:127) disregard wanton of the or in wilful others, safety of or Carelessly heedlessly without due rights or “1. in will- circumspection disregard and at a ful or wanton rights of the or caution others; endanger safety manner so'as to in of speed or n “2. due any person or Without caution and likely endanger circum- be to' or* spection; or of reckless driv- guilty be property, shall speed pun- At a or in a shall be “3. manner to en- conviction ing, and likely to danger endanger or per- provided any Section 63 of this as in ished 162,-S.L.1927, p. son.” Sec. 39-0803 NDRC Chap. 247. 1943. Act.”
281 .39-0803, “carelessly NDRC and heedlessly to Sec. in wilful or note wan- The revisor’s ton Revision 1943, report rights safety of the Code of the or in the others,” assembly- by legislative driving 28th “without due caution Commission to * * * circumspection speed revised at or in a reads: “This section the manner clarity changing so as endanger likely without or be in form for endanger any person property.” meaning.” Driv- ing only, “without due caution and circum- By two sections comparing these spection” was not intended set out a in the change made is only clear separate way of committing reckless driv- lan- re-arrangement of the punctuation and ing. original 3, of Section intent of the The intent of guage section. Chapter 162, S.U1937, still controls Sec. meaning change the Commission Code 39-0803, NDRC 1943. comparison by the is borne out statute well as the revisor’s note. as are, therefore, We constrained to hold the instruction court that repeatedly This has court held ways three enumerated in changes punctuation phraseology in 39-0803, Sec. NDRC constitute 1943 would original codification affect the mean do not driving was erroneous. ing Kositzky ex law. In State rel. v. Prater, 1240, 1248, 334, 48 N.D. N.W. 189 However, under circumstances 337, says: this court prejudicial. of this case such error was not jury did guilty “The not find the general presumption defendant obtains and, manslaughter degree the first the codifiers did not intend to therefore,- guilty change did not hold him of reck formerly law as it existed. driving State, Braun less on which the erroneous instruc v. 236, 40 Tex.Cr.R. 49 jury 620, 622; given. tion was found S.W. Instead the U. Ryder, S. v. 110 manslaughter 740, guilty 196, U.S. 4 defendant 201, S.Ct. 28 308. L.Ed. degree. Reckless is not in Changes made in second the revision stat- degree
utes
second
conviction on
alteration of
cluded
the phraseology
will not
Defendant
be
regarded
manslaughter;-
be
could not
as altering
law
prejudiced
unless
an erroneous instruction on
there is a clear intent
do.
toso
manslaughter
jury
did
(Citing
when
first
cases.)
ascertaining the in-
guilty
National Bank
tention of
him
thereof.
language
not find
used in á
re-
code
919;
vision,
154, 159,
Lemke, 3
54 N.W.
v.
may
reference
N.D.
be had to the
z
335,
Miller,
340, 184
prior
Worlit
N.D.
v.
the-purpose
statute for
of ascer-
taining
legislative
N.W. 806.
intent. Becklin
Becklin,
v.
supra
307,
Minn.
[99
final
The defendant’s
claim is that -the
243];
N.W.
Stevens Bridge Co.,
v.
“culpable negligence”
failed to definé
court
Me.
282 Automobiles, 5.364, p. 560, Berry, 5 Sec. culpable of this definition gave the court p. 539. negligence: “ has refer- negligence’ ‘Culpable Measured these definitions willful, wanton, blameable, ence to court, quoted, is instruction of the above diligence and of care criminal lack sufficient. surrounding circum- under of all defi- In connection with the attack on the to known conditions and stances culpable argued it is negligence nition of and charged therewith person be the evidence behalf of the defendant that and wanton indifference implies an culpable negli- is insufficient to establish a reck- and consecuences disregard of gence part. on his safety and lives less of indifference supplied.) (Emphasis others.” of our has a statute identical with Oklahoma 1943, 12-2719, defining man- Sec. NDRC culpable negligence defining The courts degree. In Nail v. slaughter in the second the essentials held generally have 272, 100, State, 242 P. the court 33 Okl.Cr. of wanton lack and blameable thereof are must be negligence a crime holds that to be indifference in a care evidenced culpable. says: The court In case others. rights of safety and 653, Gulke, 38 N.W.2d 76 N.D. of State v. “By means every no instance where 722, 723, this court held: person injured or by a killed vehicle driven another do the cir- culpable negligence term as “The cumstances constitute a crime. There 1943, Section RCND used in negligence be rising must the degree manslaughter in defining the second de- of culpable criminal or negligence. operation applied to a gree as of culpability of a a defendant vehicle, implies total of motor a lack question jury, of fact for the and the properly described as care which be- charged test is: Do the acts as criminal ing reckless and heedless manner in a show of a carelessness amount- disregard for the with utter lives ing culpable a disregard rights upon highway.” persons limbs of safety others, of and did said acts cause the death of deceased?” State, 612, 208 Miss. 45 In v. Coleman 240, provid held in a statute it is So.2d then “The driving court holds that being a human ing killing “that upon highway, an automobile with a de- through culpable negligence shall man be gree amounting culpable of carelessness to a ‘culpable slaughter, negligence’ should be safety rights others, disregard of and wanton reck defined as the conscious or another, thereby causing the death of probabilities disregard fatal less establishes the crime of consequence Cope, to others.” State v. degree.” In that case the defendant 456, 458, 28, 167 S.E. 204 N.C. car, rear drove into the a off driven “Culpable is such negligence said: reckless except inches, pavement for 18 while the carelessness, proximately resulting ness or replacing tire on deceased the carrier. death, imports as injury thoughtless says: The court consequences heedless “Taking the here evidence which safety rights indifference sustain State, tends to the verdict also Smith v. others.” See 197 Miss. the defendant 701, her car 1; 802, A.L.R. 161 v. 20 So.2d State against the deceased was 894; of cul- Melton, Mo. 33 S.W.2d Can 360; seen State, pable negligence, it will be Fla. 107 So. non v. State Bates, jury might find that the '271 N.W. Nail S.D. v. State, highway, where there P. various 33 Okl.Cr. persons directions, traveling in both Cyclopedia Blashfield of Automobile Law Edition, person Practice, reasonable and where a must Permanent Sec. *11 pass defendant’s car swerved into skidded and expect frequently overtake rate of the north a result of vehicles, high hound Cadillac as at a other drove under which woman The car in that car was killed. speed, having her without high- says: control, watching the and without whom she
way
with
travelers
other
only 24
“With a hard
feet
surface
collision,
and without
might have
vehicles, and without
to accommodate
view,
against
drove
obstruction to her
safely pass
sufficient room
between
stopped
the
at
who had
deceased
opposite
meeting
going
machines
his car
highway with
edge of the
directions, upon
slippery
wet and
plain
his death.”
sight, and caused
surface,
upon winding
road curv-
culpa-
ing
on the
angles,
defendant drove
amounted
The court held
this
road;
negligently
verdict
left side of the
thus
and sustained a
negligence
ble
an
taking
meeting
auto-
degree.
second
the chance of
manslaughter opposite direction
coming in
mobile
State, 70 Okl.Cr.
v.
In the case of Wilson
*
* *
think
with fatal results.
We
789, 792,
Daniels was
262, 105 P.2d
prima
defend-
the evidence
facie shows
66, on
Highway No.
driving west on U. S.
culpable
thus
guilty
negligence;
ant
road near the
right-hand
side
question
guilt a
rendering defendant’s
at about 30 or
pavement
side of the
north
Scheufler,
jury.
Mo.
for the
State v.
P.M.
10:00 o’clock
35 miles an hour after
Renfro,
Sup.,
State v.
285 S.W.
passed
A car
burning.
lights
His tail
Sup.,
Mo.
P.M. He but thus a total at A.M. showed lack of care in not de- back'in Bismarck 12:50 arrive termining of Ells- coming lights south about whether the the was a late. little On highway a worth car moving, in were recklessness and 1:00 rise the A.M. over a little car in the turning graveled half the Ellsworth heedlessness out on north where mile of A shoulder knowing north. without that road coming was car the located he saw a clear, ahead of the was and utter of lives lights little he the tail later saw. persons might highway to tell of that the it was hard be on He said Ellsworth car. particularly might not. The and those who the moving or be on lights the whether place safety. shoulder in pass 'Ellsworth a normal of north car the bound had claimed it. He would meet car before .he was to- There sufficient evidence blinded car this north bound lights on jury finding warrant lights tail see the him he so that could of guilty culpable negligence and to sustain- where the anymore. ascertaining Without degree manslaughter. verdict anybody was whether Ellsworth car was road, on the the defendant on the side of is- judgment the district court willfully bound car approach the north affirmed. right far that his so blindly turned to graveled on the out right his wheels were SATHRE,. GRIMSON, going He had been shoulder road. JOHNSON JJ., turning concur. out but on miles hour 50 or more an speed hour. 45 miles an reduced his Just passed car had him bound as the north MORRIS, Judge (concurring). front car in. saw the Ellsworth too and did going : fast bus. opinion prepared by Judge He then I concur in the the bus to but, unnecessary not have sufficient contr.ol because I believe Grimson clamped The fatal stop, his brakes. placed upon but emphasis the definition has been force the colli- collision occurred. culpable negligence, make these obser- I right front corner great sion was so that : vations left rear of the into .the of the bus crashed “Homicide is destruction of the car, out the.left side of tearing Ellsworth act, being life of one human sitting in the that deceased car.. culpable procurement, or agency, omis- patrol- morning the driver’s seat. The next sion of another.” Section marks of dual wheels men found rubber skid NDRC 1943. west, feet, on'the side three 9 inches pavement place at the where .colli- first results Manslaughter sion occurred. “perpetrated when a without homicide person design by a while to effect death defendant, presents the thus The evidence engaged in of a the commission misdemean- over, per seeing hour driving 50 miles **' or; 12-2717, NDRC Section him, by glar- blinded lights tail front of quotations from These the statute car, bound ing turning a north lights of inescapably to lead the conclusion that it, pass re- shoulder willfully out on the killing being of a human accidental only speed five miles and ducing his without engaged of a in the commis- driver vehicle the'way ascertaining that ahead was clear. driving man- of the crime of reckless sion ' feet pavement wide. There first slaughter degree. north -bound car was" evidence no charged In this the defendant was case properly on its east side of the was not road. - degree. first with plenty pass room to Defendant However,- him turning on-tlie shoulder found without off car degree. manslaughter- in the second This so there would have been no if he had done "' ' equivalent finding killing collision.
.285 prop- not occur 12-2703. These instructions were did in information charged - any erl The' of operating hr acts the defendant in engaged defendant was while the the bus caused the death Edward statute as Geier. the acts defined I believe that in manner under the evidence in this occur it did driving hut may case the manslaughter defendant’s conduct have been the definition falling within neither wanton nor willful. which On the other is defined- degree, in the second hand, warrants, 12-2719, jury as follows: evidence in NDRC Section finding justifi- that his conduct was neither being by “Every one human killing of able nor excusable and the defendant was culpa- procurement, act, agency, therefore manslaughter in the which, under another negligence of ble degree. second chapter, is not provisions of this first manslaughter nor in murder BURKE, Chief (concurring). Justice justifiable nor excusable nor degree, homicide, manslaughter second in the is I concur in the result in although this case degree.” .I do not believe the evidence is sufficient -finding culpable sustain negligence as it Dakota, of South in Supreme Court opinion is defined in the of the majority. statute, an identical applying construing and After a careful consideration of applica- says: come, statutes, ble I have to the conclusion shows the statute language of “The proof ordinary negligence which culpable only negligence clearly that causes the death a human being is suffi- many may acts which one of unlawful cient to manslaugh- sustain conviction second manslaughter constitute degree. ter the second degree. 12-2715, (cid:127)Under Section NDRC the case of State v. “Appellant cites “Homicide, justifiable, not excusable -but Bates, 65 271 N.W. S.D. perpetrated not constituting in manner culpable neg wherein the defined murder, manslaughter.” Under Section culpable that when ligence decided 12-2719, NDRC homicide which is proved may the act negligence is ‘nor manslaughter neither “murder in the second manslaughter amount degree, first nor justifiable excusable nor opin nothing but degree, there is homicide, is manslaughter in the de- second ion which indicates gree.” 12-2703, Under Section NDRC public degree, as a of excusable, a homicide is “When committed fense, depends culpable exclusively on * * * by accident and misfortune negligence.” Painter, State 70 S.D. means, lawful with usual ordinary and' 277, 17 N.W.2d * * * caution It follows that a homi- accidently cide committed but provides acting when Section. NDRC 1943 ordinary without caution is that- homicide excusable commit- excusable “When lawfully ordinary ted homicide." accident misfortune in Lack caution is any ordinary correcting doing negligence. compelled a child inor other I am to the means, act, by lawful lawful with conclusion therefore that usual and a homicide caused , ordinary by ordinary negligence, caution without unlawful since is not excus- ** intent; statute, trial able under the court instruct- is manslaughter degree. ed the in the terms of the'second Sections 12-2719