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Thomas v. State4/18/1977
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This court, in State v. McComb, supra, 239 P. at 529, in discussing the application of this phrase to a prosecution for a death caused by the operation of a motor vehicle, cited with approval authorities which include as an element of such offense the following:
"`* * * the carelessness must have been gross implying an indifference to consequences; and the term "gross negligence" means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent.'" (Emphasis supplied.) (People v. Barnes, 182 Mich. 179, 148 N.W. 400, 406-407.)
Also, in State v. McComb, the court cited with approval Wright v. State, 90 Tex.Crim. R., 235 S.W. 886, wherein when discussing gross negligence it was said:
"* * * In civil cases the courts of this state define it as such negligence as evinces a reckless disregard of human life or bodily injury." (Emphasis supplied.)
It is to be noted that this opinion antedates by some fourteen years the later vehicular homicide statute, which first employed the words "reckless disregard of the safety of others."
In State v. Catellier, supra, 179 P.2d at 227-228, this court held it was error to refuse an instruction defining criminal negligence in a manslaughter case which included the following element:
"`* * * It means wantonness and disregard of the rights of others that is equivalent to a criminal intent.' * *"
In arriving at that result the court cited with approval the following definition:
"`* * * a reckless disregard of human life or the safety of others, or indifference to consequences, equivalent to criminal intent.' * * *" (Emphasis supplied.) (Citing 40 C.J.S. Homicide § 62, p. 926.)
This definition, it will be noted, includes the identical elements of our vehicular homicide statute.
In State v. Rideout, Wyo., 450 P.2d 452, 453-454, this court had occasion to explore the definition of the term "careless disregard of the safety of others" without attempting to correlate it with our manslaughter statute or to distinguish it. An examination of that definition does not reveal any operative distinction between that and the definition of the negligence necessary to support a manslaughter conviction, as we have heretofore discussed. From these authorities it might fairly be said that both of these statutes are directed at substantially the same course of conduct and are thus inconsistent and repugnant, and if necessary we could place our reliance thereon, which we will not do, however, because of the existent conflict and confusion in this area.
Although it has been mentioned before that there is no direct authority from other jurisdictions, there is considerable persuasive and applicable law because of the manner in which this court has before considered the involuntary manslaughter statute. In State v. McComb, supra, 239 P. at 528, this court not only construed the provisions of our statute as synonymous but further held that the negligence required and described therein was not only more than ordinary negligence but that it must be criminal and culpable in character. Following this, in State v. Catellier, supra, 179 P.2d at 238, this court adopted that concept, holding that in a manslaughter case an instruction defining "criminal negligence" should have been given. Because of these holdings we view the case of Atchley v. State, Okla.Crim., 473 P.2d 286, 289, as most persuasive and applicable to this case. The Oklahoma statute recognizes the standard of "culpable negligence" as the basis for a manslaughte
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