The opinion
BURKE, Chief Justice
(concurring).
I concur in the result in this case although I . do not believe the evidence is sufficient to sustain a -finding of culpable negligence as it is defined in the opinion of the majority. After a careful consideration of the applicable statutes, I have come, to the conclusion that proof of ordinary negligence which causes the death of a human being is sufficient to sustain a conviction of manslaughter in the second degree.
•Under Section 12-2715, NDRC 1943, “Homicide, not excusable or justifiable, -but perpetrated in a manner not constituting murder, is manslaughter.” Under Section 12-2719, NDRC 1943, homicide which is neither “murder nor ‘ manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.” Under Section 12-2703, NDRC 1943, a homicide is excusable, “When committed by accident and misfortune * * * by lawful means, with usual and' ordinary caution * * * It follows that a homicide committed accidently but when acting without ordinary caution is not excusable homicide." Lack of ordinary caution is ordinary negligence. I am compelled to the conclusion therefore that a homicide caused by ordinary negligence, , since it is not excusable under the statute, is manslaughter in the'second degree.