(dissenting)—The majority hold that appellant was properly convicted of operating a motor vehicle *773“with disregard for the safety of others,” and thus proximately causing the death of two persons. They affirm the judgment and sentence of the trial court by which appellant will be confined in the state penitentiary for a total maximum period of 40 years.
In my opinion, appellant was erroneously convicted and sentenced because the legislature, in enacting ROW 46.61.520 (which defines the elements of the crime with which he was charged), intended to divide it into two (and not three) parts by providing that when the death of any person shall ensue within 1 year as a proximate result of an injury received by
(1) . . . the driving of any vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or [2] by the operation of any vehicle in a reckless manner or with disregard for the safety of others, .... (Italics mine.)
then the person so operating the vehicle shall be guilty of negligent homicide with a motor vehicle.
I realize that there is dictum to the contrary, in State v. Partridge, 47 Wn.2d 640, 289 P.2d 702 (1955), on which the majority rely, which will be discussed later herein.
In this case this court is, for the first time, confronted with a conviction based on the negligent homicide statute, in which the trial court has determined, as a matter of law, that the state’s evidence would not support a conviction under either of the first two elements of the offense: (1) driving while under the influence of intoxicating liquor, or (2) reckless driving—but would support a conviction under an alleged third element (operating a vehicle with disregard for the safety of others).
In my opinion, in order to arrive at a correct solution to the problem presented in this case, it is necessary to thoroughly review the legislative history of the statute involved and our prior decisions dealing with the subject.
In 1923, the Washington State Legislature first enacted a statute making unlawful the operation of a motor vehicle on the public highways in a “reckless manner.” Laws of 1923, ch. 122, § 2, p. 329. That statute provided that:
*774For the purpose of this section, to drive in a reckless manner shall be construed to mean the operation of a motor vehicle ... in such a manner as to endanger or inconvenience unnecessarily other users of such highway. (Italics mine.)
Violation of the provision was made a misdemeanor.
In 1927, the statute was altered somewhat, chiefly in the deletion of the provision making violation a misdemeanor, but the definition of the offense remained unchanged. Laws of 1927, ch. 309, § 45, p. 807.
In the same year, the legislature added a second major driving delinquency in Laws of 1927, ch. 309, § 51, providing, in part, that:
It shall be unlawful for any person to operate a motor vehicle upon the highways of this state while under the influence of intoxicating liquor or of any narcotic drug.
Thus, reckless driving and driving while under the influence of intoxicating liquor or narcotic drug constituted the two major driving delinquencies prohibited by statute when, in 1937, the legislature first enacted the forerunner of the present negligent homicide statute,2 in Laws of 1937, ch. 189, § 120, providing, in part, that:
When the death of any person shall ensue within one year as a proximate result of injury received by the operation of any vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle.
Also, in 1937, the reckless driving statute was amended to read:
For the purpose of this section to “operate in a reckless manner” shall be construed to mean the operation of a *775vehicle upon the public highways of this state in such a manner as to indicate either a willful or wanton disregard for the safety of persons or property. (Italics mine.) Laws of 1937, ch. 189, § 118, p. 910.
In State v. Dickert, 194 Wash. 629, 79 P.2d 328 (1938), the first case to come before this court under the 1937 enactments quoted above, this court held that the words “willful and wanton disregard,” used in section 118 in defining reckless driving, could not be lifted from their setting in that section and read into section 120, the negligent homicide provision. It was held that “willful and wanton” disregard for the safety of persons or property was not one of the elements of the crime of negligent homicide as that crime was defined in section 120. Emphasis was given the facts that the words “willful and wanton” did not appear in section 120, and the definition of reckless driving was expressly limited to “purposes of this section” by section 118.3
In 1939, a third major driving delinquency was added by Laws of 1939, ch. 154, § 1, p. 454, which provided, in part:
Section 118%. It shall be unlawful for any person to operate a motor vehicle in a negligent manner over and along the public highways of this state. For the purpose of this section to “operate in a negligent manner” shall be construed to mean the operation of a vehicle upon the public highways of this state in such a manner as to endanger or he likely to endanger any persons or property. (Italics mine.)
It was further provided that this offense was to be considered a lesser offense than, but included in, the offense of operating a motor vehicle in a reckless manner.
I am convinced that the offense of negligent driving, as defined above, does not comprise an element of negligent homicide. First, it would seem reasonable that, had the legislature intended negligent driving to be an element of *776negligent homicide by motor vehicle, it would have clearly so provided. It did not. Nor do I feel it reasonable to assume that the legislature, in enacting the negligent homicide statute in 1937, had in mind an offense for which provision was not made until the following legislative session.
In addition, it must be stressed that negligent driving is, by the very statute defining it as an offense, made a lesser and included offense under the reckless driving. See the concurring opinion of Mallery, J., in State v. Stevick, 23 Wn.2d 420, 161 P.2d 181 (1945).
In State v. Forler, 38 Wn.2d 39, 48, 227 P.2d 727 (1951), this court noted that:
Rem. Rev. Stat., Vol. 7A, § 6360-120, deals with negligent homicide, a crime which may be committed when the death of any person is brought about as a result of the “operation of any vehicle in a reckless manner or with disregard for the safety of others”; while Rem. Rev. Stat. (Sup.), Vol. 7A, § 6360-118%, deals with negligent driving, an offense committed when a vehicle is operated “in such a manner as to endanger or be likely to endanger any persons or property.” The two are entirely unrelated.
In State v. Partridge, 47 Wn.2d 640, 289 P.2d 702 (1955), this court held it to be error, in a negligent homicide case, to charge the defendant with operating the motor vehicle in a negligent manner. The court had previously held, in State v. Stevick, supra, that a finding of ordinary negligence would support a conviction under the negligent homicide statute. This ruling was followed in State v. McDaniels, 30 Wn.2d 76, 190 P.2d 705 (1948). Both these cases, however, were expressly overruled on this point by State v. Partridge, supra.4
In my opinion, this much may be deemed settled—that neither a finding of negligent driving, defined in section 118% (presently codified as RCW 46.61.525—see Laws of 1965, Ex. Ses., ch. 155, § 92) as driving “in such a manner *777as to endanger or be likely to endanger any persons or property,” nor a finding of ordinary negligence will support a conviction of negligent homicide by means of a motor vehicle, even though a death results from injuries sustained by reason of such unlawful operation. In such cases, prosecution must be instituted under the manslaughter statute, RCW 9.48.060.
With this background in mind, I turn to an analysis of the negligent homicide statute itself as presently set forth in RCW 46.61.520. The present statute provides, in part, that:
(1) When the death of any person shall ensue within one year as a proximate result of injury received by the driving of any vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle.
The language contained in this portion of the present statute is substantially identical to that of the first enactment in 1937.
The legislative scheme seems clear. At the time of the enactment of this provision in 1937, as pointed out earlier, there existed only two major driving delinquencies specifically prohibited by statute: (1) driving while intoxicated, and (2) reckless driving. The operation of a motor vehicle on the public highways in violation of either of these two statutory provisions would constitute an offense in and of itself. If the death of any person results within one year as a proximate result of injury received by reason of such unlawful operation, then the operator is guilty of negligent homicide by means of a motor vehicle.
However, in State v. Partridge, supra at 645, this court said, regarding the crime of negligent homicide by means of a motor vehicle, that, under the statute:
The elements of that crime are: death within one year as the result of the operation, of a motor vehicle by any person while (1) under the influence of or affected by *778intoxicating liquor or narcotic drugs, or (2) by the operation of any vehicle in a reckless manner, or (3) with disregard for the safety of others.
I disagree with the statement in so far as it divides the crime of negligent homicide by means of a motor vehicle into three elements. In so doing, however, I do not differ with the result of the Partridge case, the holding of which was that a finding of ordinary negligence will not support a conviction of negligent homicide under the act. The statement quoted above was not necessary to the decision in the Partridge case, and is, therefore, dictum.
It will be noted that, in addition to the legislative history above set forth, the statute (RCW 46.61.520) itself is divided naturally into two portions by providing that when the death of any person shall ensue within one year as a proximate result of an injury received by
(1) . . . the driving of any vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or [2] by the operation of any vehicle in a reckless manner or with disregard for the safety of others, ....
then the person so operating the vehicle shall be guilty of negligent homicide with a motor vehicle.
My conclusion, based on the foregoing analysis of the pertinent satutes and decisions of this court, is that there are two, and only two, elements of the crime of negligent homicide by means of a motor vehicle, both being stated in the disjunctive in the statute.5 The cases cited herein fur*779nish ample guidance for instructing the jury on the second element of the offense, reckless driving.
Even were I able to agree with the majority that the operation of a motor vehicle “with disregard for the safety of others” constitutes a separate and distinct offense, I could not agree with the majority’s approval of the instruction given by the court (instruction No. 6) which was excepted to by appellant, and which provided that:
As to the charge in the Information, to operate a motor vehicle with disregard for the safety of others, means just what the words imply.
I could not approve the giving of this instruction any more than I could approve the giving of an instruction, in an appropriate case, that “negligence means just what the word implies,” or “due process means just what the words imply.”
Appellant’s proposed instruction No. 6, which the court refused, stated that:
As to the third charge in the information, to operate a motor vehicle with disregard for the safety of others means what the words imply, such a disregard of consequences as to evince or show a willingness to perpetrate injury to another or to take known chances of so doing.
The majority dismiss the assignment of error based on the court’s refusal of this proposed instruction with the simple statement that the instruction is “not a correct statement of the law and was properly refused.” No discussion in the majority opinion enlightens us as to the basis for so holding.
Thus it may be concluded from the majority opinion that “disregard for the safety of others” is conduct which is more culpable than “the many minor inadvertences and oversights which might well be deemed ordinary negligence”; more culpable than driving “in such a manner as to endanger or be likely to endanger any persons or property” (RCW 46.61.525—negligent driving); and less culpable than the “wilful or wanton disregard” which would constitute reckless driving under RCW 46.61.500.
*780In addition, it must be inferred that this statutory offense is something other than (whether more or less culpable is in no way indicated) “such a disregard of consequences as to evince or show a willingness to perpetrate injury to another or to take known chances of so doing.” Yet the majority sustain the trial court’s solution of this lexicographer’s nightmare, i.e. leaving the jury without guidance as to the meaning of the charge and letting each juror determine for himself “just what the words imply.” This, in my opinion, is wholly inadequate.
The task of framing a proper instruction would have been somewhat less difficult had the legislature (if it intended “disregard for the safety of others” to constitute a separate offense) either provided a statutory definition of the offense (as was done in the case of all other offenses) or set forth the elements of the offense in terms which have an easily ascertainable meaning. But the legislature did neither of these things. Again, I believe the reason that they did not do so is that they never intended “disregard for the safety of others” to constitute a separate offense.
If the majority are determined to continue to take cognizance of an offense which was created by the dicta in the Partridge case, it seems to me to be incumbent upon them to provide the courts and the bar with some form of workable standards.
In my opinion, the case should not have gone to the jury on the supposed third element of the crime of negligent homicide. Having dismissed, on the ground of the insufficiency of the state’s evidence as to both the elements of driving while under the influence of intoxicating liquor and reckless driving, I think that the trial court should have sustained appellant’s challenge to the sufficiency of the evidence as to the information in its entirety.
And in any event, the charge should not have been submitted to the jury under the trial court’s instruction No. 6.
For the reasons stated herein, I think that the judgments and sentences should be reversed and the action dismissed.
Rosellini, J., concurs with Donworth, J.
Prior to this enactment, prosecutions for death resulting from the operation of motor vehicles in violation of the reckless driving and drunk driving provisions were brought under the manslaughter statute. See State v. Hopkins, 147 Wash. 198, 265 Pac. 481, 59 A.L.R. 688 (1928); State v. Ramos, 159 Wash. 599, 294 Pac. 223 (1930); State v. Mooney, 170 Wash. 260, 16 P.2d 455 (1932).
By Laws ol 1965, Ex. Ses., ch. 155, § 59, p. 2311, the reckless driving statute was recodified as RCW 46.61.500, and was amended to read: “Any person who drives any vehicle in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving,” thus omitting the limiting phrase “For the purpose of this section.”
The case of State v. Cranmer, 30 Wn.2d 576, 192 P.2d 331 (1948), followed the Stevick case on this point, and must likewise be deemed to have been overruled, sub silentio, by State v. Partridge, supra.
The confusion on this point seems not to have existed in the earlier cases involving negligent homicide by means of a motor vehicle.
In State v. Dickert, supra, this court said, at 631: “It will be observed that one of the elements of the crime, as defined by this statute, is the ‘operation of any vehicle in a reckless manner or with disregard for the safety of others.’ ” (Italics mine.)
Also significant is an instruction defining “reckless driving” in a negligent homicide case, which received the approval of this court in State v. Stevick, supra at 426, in which reckless driving was said to be: “. . . the operation of a motor vehicle in a heedless, careless or rash manner or in a manner indifferent to consequences. It is a disregard for the safety of persons or property.” (Italics mine.)