(concurring): A majority of this court held, on the former appeal in this case (State v. Carte, ante, p. 139, 138 P. 2d 429) that the defendant had waived the defense of prior jeopardy. In a dissenting opinion my reasons for not concurring in that finding were briefly stated. Although my personal views on that question remain unchanged, I feel constrained to follow the court's prior holding and therefore concur in the instant decision.
Upon the prior appeal I was also unable to concur in the majority view that the trial court exceeded its power when it modified and decreased the sentence, within the term, after execution of the sentence had begun. Holding that view the question was then at issue, in my opinion, as to whether, upon the facts alleged and the admissions of the state, the defendant had committed one offense or three separate offenses under the statute upon which the prosecution was based. Briefly discussing the question I voiced the view that there had been only one offense. Tn a specially concurring and *682forceful opinion, upon this appeal, Mr. Justice Wedell reaches a contrary conclusion.
It is not my purpose to unduly extend discussion of this question, since it is not treated in the court’s opinion — the result being determined upon other issues. In view, however, of its importance, I am constrained to add a brief comment to what was said in the prior dissenting opinion.
The defendant was prosecuted under G. S. 1935, 21-420. “Culpable negligence” is the gravamen of the offense denounced by that statute. Malicious or felonious intent is not involved in that statute. She was charged with driving her car on a country road >at a speed “in excess of forty miles an hour” and failure and neglect to stop as required by a stop sign before driving into the intersection with a marked highway.
It is argued that because she would be liable in a civil action .under the common law for damages and injuries to all persons resulting from her actionable negligence it logically follows that there. were three criminal offenses because three persons were killed in the collision. I do not think it is as simple as that. If it is, then many courts have needlessly struggled with the question of single or multiple offenses resulting from a single act. In a civil action in tort attempt is made at restitution for losses sustained. Unfortunately, in a criminal action, brought by- the state, restoration of a lost life cannot be made. A wholly different principle must be applied. Society can only seek to protect itself by punishment of the wrongdoer.
Admittedly there is wide conflict of authority on the question of single or multiple offenses growing out of a single act. I have no quarrel with the distinction drawn between act and offense. In the prior dissenting opinion I cited a few of the many authorities supporting the view adopted, and shall not burden this opinion with further citations.
One of the guiding tests invoked in many decisions is that of single or multiple intent, as shown by the facts of the particular case. This distinction is implicit in the illustrations used in the opinion in the Minnesota case of State v. Fredlund, 200 Minn. 44, from which my learned colleague quotes rather extensively. It was there said:
“Other illustrations can easily be made. Thus, we might poison a well from which many persons might die because the water therefrom was used by many *683persons residing in that locality. One might throw a bomb into a large crowd of people and thereby injure many and possibly kill,” etc. (Italics supplied.) (p. 54.)
The distinction between such cases and the instant one is obvious. Not only is deliberate criminal intent present in such cases but such acts are committed either with deliberate intent to injure or kill more than one person or in utter disregard of the probability of such result. The-opinion in the Minnesota case does not disclose just what the facts were but the indictments were under a Minnesota statute which reads:
“Such killing of a human .being, when perpetrated by act eminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual, or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony either upon or affecting the person killed or otherwise, is murder in the third degree, and shall be punished,” etc. (Italics supplied.) (p. 45.)
Assuming as we must that the facts brought the offenses within the statute the distinction between that case and the instant one is at once clear.
If the test of single or multiple intent — invoked under the well-established rule that a person is assumed to have intended the natural and probable result of his act — is a valid one in cases where malicious or felonious intent is the gravamen of the action, then, all the more, it seems to me, should the test apply where a defendant is charged with negligence, however grievous, and who would be a tort-feasor only, if it were not for specific statute making such negligence culpable and providing criminal penalty therefor.