concurring specially.
I can and do concur only in the result reached in this case because it is consistent with my analysis. I am sympathetic with the dissent because it points up the quandary into which the majority is leading us.
As can be seen in the majority opinion and the dissenting opinion, down through the years, there has been and still is a continuing struggle by this court to ascertain the intent of the legislature in the enactment of the negligent homicide statute, § 31-232, W.S.1957, C.1967, as far as the manslaughter statute, § 6-58, W.S.1957, is concerned.
I think the court has become so involved in technical distinctions with respect to the question at hand, that our rulings have become a thicket of misty confusion. The effort to distinguish one case from the other to reach some just, as well as reasonable result, has developed into a real puzzle as to what we might do next under a given state of facts.
Stated simply, it seems to me that the legislature in its failure to speak clearly in enacting § 31-232 as part of the Uniform Act Regulating Traffic on Highways, § 31-77, et seq., W.S.1957, C.1967, intended that all driving violations, resulting in the death of another, should be considered exclusively for prosecution under § 31-232; the element of reckless disregard for the safety of others, of course, must necessarily be present. The vehicular homicide statute, as the most recent expression of the legislature, I reluctantly must construe as repeal by implication of any part of the manslaughter statute, in conflict; there is no other course.
That conclusion is bolstered by § 31-125, providing that:
“Any person who drives any vehicle in willful and wanton disregard for the safety of persons or property is guilty of reckless driving.”
That section applies in the absence of death as a result but its companion, § 31-232, in identical language except word arrangement, applies when a death is the product of such driving. With such a standard interpretation, everyone, the public, law enforcement, the bench and bar should know where it stood. I would, naturally, exclude the intentional use of a motor vehicle to commit murder in any degree. No one would then have to go through some tenuous line of reasoning to determine what is malum prohibitum, what is malum in se or try to decide what Supreme Court case, drawing some slender line, applied to move negligent homicide to manslaughter or vice versa.
I realize that my view may place drunken driving, resulting in death, within the category of negligent homicide. That would be personally abhorrent to me because I believe it deserves to fall within the classifica*1244tion of a felony but neither I, nor can any segment of the judiciary, legislate. Drunken driving is part of state traffic legislation. Section 31-129, W.S.1957, C.1967, 1975 Cum.Supp. If the legislature wished it to be a felony, it is a matter for legislative determination, not judicial. I agree with the dissent that the majority is creating an inconsistency in that regard.
A careful reading of the full majority opinion by Justice Riner in State v. Cantrell, 1946, 64 Wyo. 132, 186 P.2d 539, indicates the court was also considering the application of a third statute, since repealed,1 covering death resulting from the operation of a motor vehicle, worded in part as follows:
“(* * * Section 60-138, W.C.S.1945) * * * ‘if any person operating a motor vehicle in violation of the provisions of this article shall, by reason thereof, seriously maim, injure or disfigure or cause the death of any person or persons, such person shall be deemed guilty of a felony, and upon conviction shall be imprisoned in the penitentiary for not less than one year nor more than fourteen (14) years.’ ”
The court was then faced with the availability of that statute, which would permit a felony conviction for death caused by vehicle operation, exclusive of the manslaughter statute. I do not believe, as the majority does, we can categorically say at this time what we will do when confronted with a manslaughter charge in a drunken driving case, in the absence of that third statute. There is no longer hovering in the background the influence of § 60-138, W.C.S. 1945, which gave the prosecutor an equally serious choice to turn to if manslaughter would not lie.
It appears to me that it is time that the legislature act as suggested by Justice Blume in his special concurring opinion in State v. Cantrell, supra, commented upon in Thomas v. State, Wyo.1977, 562 P.2d 1287, and mentioned before in State v. Wilson, 1956, 76 Wyo. 297, 301 P.2d 1056,2 Justice Blume likewise had the same hesitancy that I entertain and the legislature should “fix a more recognizable rule of guidance for the courts.” 64 Wyo. at 157, 186 P.2d at 548. Death on the highways is so frequent, so serious and so final to the victim that the situation commands legislative action.
I have no disagreement with the majority in its handling of “OTHER ASSERTED ERRORS.”
. Deleted by amendment. Section 1, Chapter 69, Session Laws of Wyoming, 1957.
. See also Criminal Liability for Death Caused by Operation of Motor Vehicles in Wyoming, 18 Wyo.L.J. 213.