On Denial of Petition for Rehearing.
SMITH, Justice.The allegations contained in the information of the commission of unlawful acts in violation of certain statutory law and ordinances may be regarded as allegations of fact out of which the the reckless disregard, and the negligence interpreted as reckless disregard, I.C. sec. 18-114; State v. McMahan, 57 Idaho 240, 65 P.2d 156, arises, which is the basis of the charge. Those allegations in that sense may properly be alleged and proved; and though they may be characteristic of a charge of manslaughter, they cannot have the effect of changing the charge from negligent homicide to manslaughter. Moreover, those allegations were not prejudicial to appellant because the proof thereof did not and could not increase the penalty beyond that fixed by the negligent homicide statute.
The petition for rehearing is denied.
KEETON, C. J., TAYLOR, J., and DUNLAP, District Judge, concur.