# State v. Tjaden

> North Dakota Supreme Court · March 7, 1955 · 69 N.W.2d 272

URL: https://www.frixlaw.com/law-library/cases/9572285

## Case

- **Full name:** STATE of North Dakota, Respondent, v. Lester TJADEN, Appellant
- **Court:** North Dakota Supreme Court
- **Decided:** March 7, 1955
- **Citations:** 69 N.W.2d 272; 1955 N.D. LEXIS 97
- **Precedential status:** Published
- **Opinion:** Concurrence by Burke
- **Judges:** Morris, Burke, Grimson, Johnson, Sathre
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9572285

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9572285. Public record. Not legal advice.