dissenting.
I agree with the majority that there is sufficient evidence in the record to support the verdict finding defendant guilty of involuntary manslaughter, but because, in my opinion, defendant has been convicted of a crime with which he was not charged, I vote to arrest judgment. I realize that for many years in this State we have assumed that involuntary manslaughter is a lesser included offense of murder. I have been unable to discover any Supreme Court decision that has specifically held that involuntary manslaughter is a lesser included offense of murder, but the Court has approved on numerous occasions the submission of involuntary manslaughter as a possible verdict in cases wherein the defendants were charged with murder. In at least two cases, State v. Boyd, 61 N.C. App. 238, 300 S.E. 2d 578, disc. rev. denied, 308 N.C. 545, 304 S.E. 2d 238 (1983) and State v. Hudson, 54 N.C. App. 437, 283 S.E. 2d 561 (1981), this Court has specifically said that involuntary manslaughter is a lesser included offense of murder. In at least three other cases, State v. Fournier, 73 N.C. App. 465, 326 S.E. 2d 84 (1985), State v. Mercado, 72 N.C. App. 521, 325 S.E. 2d 313 (1985), and State v. Cason, 51 N.C. App. 144, 275 S.E. 2d 221 (1981), this Court has said that involuntary manslaughter is not a lesser included offense of murder, but *30in no case has this Court or the Supreme Court applied such a rule.
In State v. Weaver, 306 N.C. 629, 295 S.E. 2d 375 (1982), the Supreme Court held that taking indecent liberties with a child under the age of sixteen is not a lesser included offense of first degree rape of a child of the age of twelve or less. In so holding, Justice Carlton elaborated on just how we must determine whether one crime is a lesser included offense of another crime:
It might be argued that under certain factual circumstances taking indecent liberties with a child is a lesser included offense of first-degree rape. . . .
We do not agree with the proposition that the facts of a particular case should determine whether one crime is a lesser included offense of another. Rather, the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. State v. Banks, 295 N.C. 399, 415-16, 245 S.E. 2d 743, 754 (1978). In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis.
Id. at 635, 295 S.E. 2d at 378-79 (emphasis original). Since Weaver, the Supreme Court has repeatedly applied the definitional test in determining whether one offense is a lesser included offense of another. See, e.g., State v. Warren, 309 N.C. 224, 306 S.E. 2d 446 (1983); State v. Freeman, 308 N.C. 502, 302 S.E. 2d 779 (1983). See also State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983); State v. Bates, 70 N.C. App. 477, 319 S.E. 2d 683 (1984).
Applying the definitional rule set out in Weaver to the question whether involuntary manslaughter is a lesser included offense of murder requires that we first define the two crimes. Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938); State v. Bondurant, 309 N.C. 674, 309 S.E. 2d 170 (1983). Involuntary manslaughter is “the unintentional killing of a human being without either express or *31implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence.” State v. Watson, 310 N.C. 384, 398, 312 S.E. 2d 448, 457 (1984). See also State v. Wilkerson, 295 N.C. 559, 247 S.E. 2d 905 (1978). It is readily apparent that the definition of involuntary manslaughter contains an element not present in the definition of murder: the commission of some unlawful or culpably negligent act. Consequently, the crime of involuntary manslaughter is not a lesser included offense of murder.
I recognize that I suggest a radical departure from a well-established practice, but I do nothing more than follow the rule set out in Weaver. The effects of the holding herein suggested can only be-salutary. I perceive few if any harmful results.