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Egle v. People2/7/1966
gence, therefore, was sufficient to support the conviction under the statute and this was what the court instructed the jury upon.
Defendant further contends that the trial court erred in refusing to submit an instruction upon involuntary manslaughter as a necessarily included offense. We have held that position to be untenable in Daniels v. People, 159 Colo. 190, 411 P.2d 316.
Defendant's last point is that having alleged that the defendant was driving in a reckless, negligent, and careless manner, the state must prove reckless driving, and an instruction must be submitted defining reckless driving. He cites Espinosa, supra, as authority for that statement. We do not agree. We have held frequently and consistently in cases too numerous to cite again the proposition that a crime charged in the conjunctive is supported by proof that the defendant committed the offense in any one of the ways specified. Espinosa does not, as we read it, hold that one cannot be convicted upon proof of simple negligence when the information charges that the accused drove in a "reckless, negligent and careless manner." As a matter of fact, since the crime is committed when there is a death caused by careless driving while under the influence of intoxicating liquor, the words reckless and negligent contained in the statute are really only surplusage.
The judgment is affirmed.
Disposition
Affirmed.
Mr. Justice Day dissenting.
For the reasons that I set forth in my dissent in Daniels v. People, 159 Colo. 190, 411 P.2d 316, I also dissent to the majority opinion in this case.
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