My primary reason for concurring in the majority opinion is based on my deep-grounded belief in the theory enunciated by us in our opinion in the case of State v. Harris, 41 N.M. 426, 427,70 P.2d 757, *Page 513 wherein we laid down a definite rule by which the guilt or the innocence of a driver of an automobile who accidentally kills a person is to be measured.
Mere negligence is not sufficient. It may be sufficient to compel the driver to respond in damages. However, when it comes to responding to an accusation of involuntary manslaughter, with the possibility of a penitentiary sentence, a different rule is called into play.
In the instant case I can not find from the evidence where the appellant was guilty of reckless, wanton and wilful negligence. State v. Harris, supra.