dissenting.
The defendant was convicted of manslaughter under an information charging that he did.“feloniously and purposely push, force and throw” one Gwendolyn Chapman from a moving motor vehicle and thereby cause her death; Darryl Slonecker, the state’s chief witness, was the driver of the truck and was, at the time of the trial, serving a three-year penitentiary sentence for operating' it while under the influence of intoxicating liquors and by reason thereof unlawfully causing the death of Gwendolyn Chapman. It is quite apparent that both convictions cannot be right.
■ ■ In my judgment, the evidence in the case at bar is insufficient to sustain the conviction. At approximately the same time that the deceased was thrown from the truck, the truck was driven into a mail box, a stop sign and into the ditch. There is not a single word of evidence in the record, nor is there any such pointed out in the majority opinion of this court, that the defendant pushed, forced or threw Gwendolyn Chapman from the truck.' All the inferences that might logically be drawn from the evidence are more consistent with the theory that drunken and negligent driving were the cause of Gwendolyn Chapman’s death rather than any unlawful act of the defendant..
The only eyewitness who testified for the state was Darryl Slonecker. He had previously been convicted of causing the death by driving the truck while under the influence of intoxicating liquors. He admits that he has previously told different stories as to what happened, one of which coincides with, the story told by the defendant. The record clearly demonstrates that his evidence is unreliable *54and his credibility impeached to such an extent that they are entitled to little weight in determining the sufficiency of the evidence.
The record discloses that Slonecker, the defendant and the deceased were, on the night in question, jointly engaged in an enterprise that was far from commendable. The jury were undoubtedly influenced unduly by their reprehensible conduct. It is the duty of this court to prevent a conviction to stand that is based on passion and prejudice. It appears to me that defendant ought not be required, in the .absence of statutory authority, to spend three years in the penitentiary for participating in a drunken party for which all were equally responsible. The state failed to prove the defendant guilty of the crime charged beyond a reasonable doubt as a matter of law. The trial court should have directed a verdict for the defendant.
Day, J., concurs in the above dissent.