(concurring specially)—Although I have signed the court’s opinion, attention should be directed to the fact that the court’s instruction No. 4, interpreting the *333elements of negligent homicide as defined in RCW 46.56.040, is erroneous because in it the jury was instructed that there must be a relationship of cause and effect between the intoxication and the act producing the fatal accident, while the statute itself makes it a crime if an accident occurs during the period of time when the driver is under the influence of intoxicating liquor, and a death is the proximate result of the accident. The error was, of course, favorable to respondent.
The statute, so far as material, is as follows:
“When the death of a person ensues within one year as a proximate result of injury received by the operation of a 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.” RCW 46.56.040. (Italics mine.)
It cannot be overemphasized that the crime is committed if the fatal accident occurs while the driver of the car is under the influence of intoxicating liquor. It is no defense that the injury is not the proximate result of intoxication. The words “proximate result” refer only to the death being the result of an injury received while the driver is under the influence of intoxicating liquor.
Judge Mallery’s special concurring opinion in State v. Stevick, 23 Wn. (2d) 420, 428, 161 P. (2d) 181, pointed this out, and emphasized that the contrary is true in a charge of manslaughter. Judge Mallery’s language is:
“. . . Thus the killing of a human being by an automobile properly driven, would nevertheless constitute negligent homicide by means of a motor vehicle if the driver was intoxicated, and contributory negligence or lack of negligence as the proximate cause would not be a defense. The case is otherwise, and negligence must be shown, when manslaughter is alleged under Rem. Rev. Stat., § 2390, as in the case of State v. Hedges, 8 Wn. (2d) 652, 113 P. (2d) 530, where the defendant had shot and killed a human being while hunting deer. . . .
“ . . . When the state can show negligence as the proximate cause of the death, but cannot show drunken or *334reckless driving, Rem. Rev. Stat., § 2390, will sustain its charge of manslaughter if brought thereunder. When the state can prove drunken or reckless driving even though they are not the proximate cause of the killing, it can sustain its charge if brought under Rem. Rev. Stat., Yol. 7A, § 6360-120.”
Prior to the enactment of the negligent homicide act,1 prosecutions for traffic deaths could be brought only under the manslaughter statute. It is a matter of common knowledge that the obstacles to convictions on a charge of manslaughter brought forth negligent homicide statutes. State v. Wojahn, 204 Ore. 84, 89, 282 P. (2d) 675; Moreland, A Rationale of Criminal Negligence, 129, chapter 11(C).
The very purpose of this statute was to eliminate the necessity of proving intoxication to be the proximate cause of the fatal accident. That proximate cause of such an accident is not an element of the crime is aptly stated in 8 Blashfield, Cyclopedia of Automobile Law & Practice (Perm, ed.), 212, 214, § 5385, as follows:
“Where the statute defines the crime of manslaughter as arising from the death of a human being, caused by the operation of a motor vehicle by any person while intoxicated, the question of culpable negligence at the time of the killing is not an element of the crime.” (Italics mine.)
Accord: 5A Am. Jur. 968, § 1139; 61 C. J. S. 776, 777, § 660.
The legislature has plainly enacted that if one, while under the influence of liquor, drives his automobile fatally striking another the driver is guilty of negligent homicide. The legislature has not required a causal connection between the intoxication and the death, but only that a fatal accident occur while the accused was driving in an intoxicated condition.
For instance, the Florida statute, like our own, provides:
“ . . . and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter and, on conviction be punished as provided by existing law relating to manslaughter.” 22 Fla. Stat. 600, 601, chapter 860, § 860.01. (Italics mine.)
*335Under this statute, Tootle v. State, 100 Fla. 1248, 130 So. 912, held that culpable negligence was not an element of the crime. Other Florida cases hold that, if a person is indicted both under the manslaughter statute and the negligent homicide statute and is acquitted of culpable negligence, conviction can, nevertheless, be sustained under the negligent homicide statute. Barrington v. State, 145 Fla. 61, 199 So. 320; Ates v. State, 141 Fla. 502, 194 So. 286; Graives v. State, 127 Fla. 182, 172 So. 716.
The Wisconsin negligent homicide act provides:
“ ‘Any person who by operation of any vehicle while under the influence of alcoholic beverages . . . shall cause the death of another shall be deemed guilty of negligent homicide and upon conviction thereof shall be punished by imprisonment. . . . ’ ” State v. Peckham, 263 Wis. 239, 56 N. W. (2d) 835. (Italics mine.)
State v. Peckham, supra, holds that under the quoted statute a causal relationship between the intoxication and the accident producing death was not an element of the crime.
Respondent cites a line of cases in which the charge was manslaughter as distinguished from negligent homicide. State v. Tingen, 247 N. C. 384, 100 S. E. (2d) 874, is a fair example. It was there held that a causal relationship between the driver’s intoxication and the fatal accident must be proved to sustain a conviction. Washington decisions are in accord. State v. Ramser, 17 Wn. (2d) 581, 136 P. (2d) 1013; State v. Vanskike, 120 Wash. 659, 208 Pac. 84. The very purpose of the negligent homicide act is to eliminate the necessity of such proof.
The legislature concluded that to treat the problem as a mere question of causation would sacrifice the public security in deterring extremely perilous conduct. That choice was for the legislature. The court’s duty is only to apply the law as enacted. The predominant purpose of the statute is to prohibit drunken driving. The crime of negligent homicide is committed if a fatal accident occurs while the driver is under the influence of intoxicating liquor. The legislature has not required that the fatal accident be the proximate result of intoxication, but only *336that such accident occur during the period of time when the driver is intoxicated. The requirement of cause and effect is confined to proving that the death was the proximate result of the accident.
I fully agree that the court erred in arresting the judgment.
Hill, Donworth, and Weaver, JJ., concur with Foster, J.
Laws of 1937, chapter 189, § 120, p. 911, now codified as RCW 46.56.040.