(dissenting).
The information on which appellant was tried charges that on or about April 6, 1957, on U. S. Highway 93, appellant wilfully and unlawfully drove, managed and operated an Oldsmobile sedan:
1. While under the influence of intoxicating liquor;
2. At an excessive rate of speed; and
3. In a reckless disregard of the safety of others so as to endanger persons and property,
resulting in said automobile turning completely over in the easterly borrow ditch *153of said highway and in the death of one Beulah Buckley, a passenger in said vehicle.
The evidence established that appellant was during the early morning of April 6th, while it was dark, driving a motor vehicle from a Nevada resort on U. S. Highway 93, going in the direction of Twin Falls. Beulah Buckley was a guest passenger in the car. The car so being driven by said appellant skidded from the highway onto the shoulder, down and into a borrow pit, turned over, was badly damaged, and the said Beulah Buckley received injuries from which she died. An autopsy proved that deceased’s death was the result of a fractured cervical vertebra, caused by acute flection of the head on the chest.
The road where the car left the improved portion of the highway was wet and slippery with some snow on the ground. The weather was windy and cold.
The State witnesses, Mr. and Mrs. Stohler, were driving at the time on the same highway, proceeding at 25 or 30 miles an hour ahead of appellant’s car. Mrs. Stohler saw the car approaching from the rear and noticed it left the road approximately 500 ft. back of the Stohler car. They backed their car up and saw appellant’s car right side up in the borrow pit. Appellant, with some direction from Mr. Stohler, drove his car back onto the highway, headed toward Twin Falls, turned the car around, and drove south in the direction of Nevada. State witness Stohler testified that the lady in the car was not dead when he observed the car in the borrow pit; that appellant, as far as the witness knew, was not under the influence of intoxicating liquor; that there was nothing to indicate that the car was being driven in a reckless manner, or speeding.
Jesse E. Carlton, Nevada Deputy Sheriff, a State witness, saw deceased and appellant in Nevada in the early morning hours of April 6th, and talked to them. He testified that appellant was not drunk; that he walked all right and there was nothing peculiar about his speech.
Another State witness, Wayne Williams, a truck driver, testified that he also saw appellant and Beulah Buckley at approximately four a. m., April 6th, at a resort in Nevada; that appellant was sober; that he left Nevada sober at approximately five a. m.
Approximately a mile from where appellant turned the car around and headed toward Nevada, he drove the car from the highway and parked. Other witnesses appeared at this place and on examination of the situation found Mrs. Buckley dead. All witnesses agreed that the morning was dark, the roadbed wet and slippery, with patches of snow and ice.
In determining the guilt or innocence of appellant, one must consider the statute under which the prosecution was conducted. *154Sec. 49-520.1 I.C., Supp.; § 49-1101 I.C. This statute by its terms does not cover one driving while under the influence of intoxicating liquors, this being a separate and distinct offense, covered by another provision of the Code (Sec. 49-520.2 I.C., Supp.)
Driving while under the influence of intoxicating liquor is not a necessary element of negligent homicide. State v. Andrews, 108 Conn. 209, 142 A. 840; State v. Sisneros, 42 N.M. 500, 82 P.2d 274; People v. McGrath, 94 Cal.App. 520, 271 P. 549.
Negligent homicide, driving while under the influence of intoxicating liquor, reckless driving, speeding, or other traffic violations are all defined by the Code as separate and distinct offenses, and a violation of one does not necessarily violate another. 86 A.L.R. 1274.
Therefore, as I view it, the question presented is: Was. appellant at the time and place of the accident driving the automobile in reckless disregard of the safety of others?
“Reckless disregard” as used in Sec. 49-1101 I.C., has been defined in Mason v. Mootz, 73 Idaho 461, 253 P.2d 240, and in Turner v. Purdum, 77 Idaho 130, 289 P.2d 608, 611, as follows:
“The term ‘reckless disregard’ as used in said section means an act or conduct destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong rash; wanton disregard, or conscious indifference to consequences.”
See also, Loomis v. Church, 76 Idaho 87, 277 P.2d 561.
Respondent contends that the speed at which the car in question was being driven proves the reckless disregard of the safety of others.
There is no evidence showing the speed prior to, or at the time the car left the improved portion of the road. After the car left the improved part of the road and traveled down the slope, it went a distance of 171 ft. If the car were being driven at a speed of 40 miles per hour, the time that it would take to travel on the shoulder and down the slope until it stopped would be a little less than three seconds. If it were being driven 35 miles per hour, it would take a little more than four seconds. Neither of such speeds would prove reckless driving.
Driving a car at an excessive rate of speed, if it were so driven, and which the evidence does not prove, or if driven in excess of legal limits, is not of itself reckless driving within the statutory definition prohibiting reckless driving above quoted. Fake v. Macduff, 281 App.Div. 630, 121 N.Y.S.2d 346; People v. Devoe, 246 N.Y. 636, 159 N.E. 682; People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785; People v. Nowell, 45 Cal.App.2d Supp. 811, 814, 114 P.2d 81; *155People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A.L.R. 1266.
Speeding, or driving a motor vehicle at an excessive rate of speed is a separate offense. Sec. 49-524.1 I.C., Supp. To constitute reckless driving something more than speeding would have to be proved. People v. Sticht, Co.Ct., 139 N.Y.S.2d 667; State v. Licari, 132 Conn. 220, 43 A.2d 450; 52 A.L.R.2d 1367.
In considering the essential elements of reckless disregard of the safety of others, an accused’s guilt or innocence must be ■considered with respect to the time when and the place where the alleged violation occurred.
Evidence of an accident and a resulting death is not sufficient to convict a person of negligent homicide. In other words, a mere occurrence of an accident which resulted in death would not warrant a conviction. People v. Whitby, City Ct., 44 N.Y.S.2d 76; People v. Sandner, 162 Misc. 41, 292 N.Y.S. 545; People v. Garo, 208 Misc. 496, 144 N.Y.S.2d 107; State v. Biering, 111 Mont. 237, 107 P.2d 876.
I find nothing in the record that would warrant the conclusion that appellant was driving the automobile at the time and place of the accident in a manner that was destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong, rash; wanton disregard, or conscious indifference to consequences.
Sec. 18-114 I.C. provides:
“In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.”
Appellant may have been guilty of ordinary negligence. If so, this is not sufficient on which to base a conviction of the offense charged.
That Beulah Buckley died as a result of the accident is conceded, but this fact, without more, is insufficient to sustain the conviction.
The charge in the information that appellant was driving while under the influence of intoxicating liquors and at an excessive rate of speed should have been stricken. Such allegations are not pertinent to the charge and are not a part of the negligent homicide statute. Sec. 49-1101 I.C., Sec. 49-520.1 I.C., Supp.
I am of the opinion that the evidence, as a matter of law, fails to show that the car at the time and place of the accident was being operated with reckless disregard of the rights of others.
It is apparent from the transcript that the jury consider the consequences rather than the cause, and misconstrued and misinterpreted the evidence.
The judgment of conviction should be reversed with instructions to the trial judge to set the conviction aside and dismiss the action.