The opinion
MORRIS, Judge
(concurring).
I concur in the opinion prepared by Judge Grimson but, because I believe unnecessary emphasis has been placed upon the definition of culpable negligence, I make these observations :
“Homicide is the destruction of the life of one human being by the act, agency, procurement, or culpable omission of another.” Section 12-2701, NDRC 1943.
Manslaughter in the first degree results when a homicide is “perpetrated without a design to effect death by a person while engaged in the commission of a misdemean- or; *' * Section 12-2717, NDRC 1943. These quotations from the statute lead inescapably to the conclusion that the accidental killing of a human being by the driver of a vehicle engaged in the commission of the crime of reckless driving is manslaughter in the first degree.
In this case the defendant was charged with - manslaughter in the first degree. However,- the jury found him guilty of manslaughter- in the second degree. This is equivalent to finding that the killing *285 charged in the information did not occur while the defendant was engaged hr any of the acts defined by the statute as reckless driving hut that it did occur in a manner falling within the definition of manslaughter in the second degree, which is defined- by Section 12-2719, NDRC 1943 as follows:
“Every killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”
The Supreme Court of South Dakota, in construing and applying an identical statute, says:
“The language of the statute shows clearly that culpable negligence is only one of many unlawful acts which may constitute manslaughter in the second degree.
“Appellant cites the case of State v. Bates, 65 S.D. 105 , 271 N.W. 765 , wherein the court defined culpable negligence and decided that when culpable negligence is proved the act may amount to manslaughter in the second degree, but there is nothing in the opinion which indicates that manslaughter in the second degree, as a public offense, depends exclusively on culpable negligence.” State v. Painter, 70 S.D. 277 , 17 N.W.2d 12, 13 .
Section. 12-2703, NDRC 1943 provides that- homicide is excusable “When committed by accident and misfortune in lawfully correcting a child or in doing any other lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent; * * The trial court instructed the jury in the terms of Sections 12-2719 and 12-2703. These instructions were prop-erl - The' acts of the defendant in operating the bus caused the death of Edward Geier. I believe that under the evidence in this case the defendant’s conduct may have been neither wanton nor willful. On the other hand, the evidence warrants, the jury in finding that his conduct was neither justifiable nor excusable and the defendant was therefore guilty of manslaughter in the second degree.