dissenting.
In State v. Cantrell, 64 Wyo. 132, 186 P.2d 539 (1947), this Court posed one issue, at 64 Wyo. 144, 186 P.2d 542, as follows:
“The query arises then — Was the entire manslaughter statute, Section 32-205, W.R.S.1931, Section 9-205, W.C.S.1945, supra, repealed by Section 24, Chapter 126, Laws of Wyoming 1939, Section 60-413, W.C.S.1945 [the negligent homicide statute], as asserted by appellant? * * ”
This issue was resolved by the Court at 64 Wyo. 145, 186 P.2d 543:
“With the above rules in mind it is plain that Section 24, Chapter 126, Laws of Wyoming 1939 did not repeal in toto Section 32-205, W.R.S.1931, supra. Section 24 aforesaid fails to deal with not only the inhibition of the statute concerning voluntary manslaughter but also the ban of the law upon involuntary manslaughter ‘in the commission of some unlawful act’. It is not repugnant to either of these provisions.” [Emphasis added.]
In justifying this holding the Court cited and relied upon People v. Mitchell, 27 Cal.2d 678, 166 P.2d 10 (1946), a case in which the unlawful act was speeding.
Within the past six months this Court stated:
“Earlier, in Cantrell, supra, it was clearly decided that an implied repeal of the manslaughter statute was not effected insofar as the commission of an unlawful act was concerned, * * Thom*1245as v. State, Wyo., 562 P.2d 1287, 1289 (1977).
The majority opinion poses the primary issue in the instant case as follows:
“Although there are other issues, the primary question presented in this appeal is whether the ‘unlawful act’ portion of § 6-58, W.S.1957, dealing with the crime of involuntary manslaughter, was repealed by implication with the enactment of § 31-232(a), W.S.1957, C.1967, which deals with the crime of vehicular homicide.” [Footnotes omitted.]
This question is answered in the affirmative by the majority opinion, and an attempt is made to factually distinguish the Cantrell case. State v. Cantrell, supra, is an unlawful act case not simply a driving while under the influence of intoxicating liquor case. While Cantrell did involve different facts, the rule of law is not distinguishable, and it follows that what was said in Cantrell and reaffirmed in Thomas and what is said here are inconsistent. If we are to overrule Cantrell, candor demands that we so state.
I am satisfied that Cantrell represents the correct rule. It is generally assumed that Wyoming adopted its criminal code from Indiana. In § 1908, Indiana Revised Statutes, 1881, which were extant at the time that § 6-58 first was adopted as Chapter 73, § 17, S.L. of Wyoming, 1890, it was provided:
“Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and upon conviction thereof, shall be imprisoned in the State prison not more than twenty-one years nor less than two years.”
The statute adopted by Wyoming reads as follows, with the differences indicated by italics:
“Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years.” § 6-58, W.S.
Prior to the time that Wyoming adopted this statute is had been construed in Indiana to the end that there were two ways of committing involuntary manslaughter in Indiana. In State v. Dorsey, 118 Ind. 167, 20 N.E. 777, 10 Am.St.R. 111 (1889), the Supreme Court of Indiana stated:
“ * * * ‘Involuntary manslaughter is where a man doing an unlawful act, not amounting to a felony, by accident kills another, or where one kills another while doing a lawful act in an unlawful manner.’ Com. v. Kuhn, supra [1 Pittsb. R. 13]. See Moore, Crim.Law, § 863. See Reg v. Skeet, 4 Fost. & F. 931.”
See Napier v. State, 255 Ind. 638, 266 N.E.2d 199 (1971); Kraft v. State, 202 Ind. 44, 171 N.E. 1 (1930); Howell v. State, 200 Ind. 345, 163 N.E. 492 (1928); Dunville v. State, 188 Ind. 373, 123 N.E. 689 (1919).
The proper construction of the Wyoming statute relating to involuntary manslaughter is that the Wyoming legislature codified the alternative method of committing the offense which was by case law engrafted upon it in Indiana, that is, the commission of a lawful act in an unlawful manner. This is what is connoted by the words in the Wyoming statute, “or by any culpable neglect or criminal carelessness.” In Thomas v. State, supra, this Court held insofar as that portion of the involuntary manslaughter statute was concerned it had been repealed by implication in the adoption of the negligent homicide statute, § 31-230(a), W.S. I would, however, continue to follow State v. Cantrell, supra, to the end that when the circumstances manifest accidental killing by one involved in the commission of an unlawful act, not amounting to a felony, and the unlawful act is the proximate cause of the death the offense committed is involuntary manslaughter. While this may seem a harsh result, human life is generally regarded as worthy of extraordinary protective measures. It is the prerogative of the legislature to determine the consequences *1246which may attach to an unlawful act that takes a life, and it can, if it chooses to; make those consequences more severe than those that attach to taking a life by recklessness or negligence.
The majority opinion refers to cases which are in point and which, at least in one instance, our Court already has followed. People v. Mitchell, supra, was relied upon extensively in State v. Cantrell, supra. State v. McIver, 175 N.C. 761, 94 S.E. 682 (1917), is cited in People v. Mitchell, supra, and reaches the same result. Other similar cases are State v. Deane, 75 Idaho 149, 268 P.2d 1114 (1954); State v. Salhus, 68 Idaho 75, 189 P.2d 372 (1948); and Schluter v. State, 153 Neb. 317, 44 N.W.2d 588 (1950). Without considering some of these cases, and ignoring the commitment to the rule expressed in People v. Mitchell, supra, by this Court in State v. Cantrell, supra, the majority opinion assumes that in Wyoming in the instance of a charge of involuntary manslaughter in which the unlawful act relied upon is a speeding violation, a showing that the act was done in a criminally negligent manner is required. The Court further assumes that even though, under that theory, the elements of the offense require a showing of an unlawful act committed in a criminally negligent manner that additional element is without significance, and the crime is substantially indistinguishable from negligent homicide. This is a peculiarly strained result in the light of Cantrell v. State, supra, which leads to a conclusion that Wyoming law does not require that the unlawful act be committed in a criminally negligent manner.
In the instant case I would agree that the judgment should be reversed and the case sent back to the district court for retrial. I would permit the submission of the involuntary manslaughter violation to the jury, but would also require the included offense of negligent homicide be submitted to the jury assuming that the defendant presented a theory which would be consistent with that offense. I suggest, for example, that in this instance the jury might determine the speeding violation was not the proximate cause of the decedent’s death, but that instead the proximate cause was the reckless operation of the vehicle in handling it so that it struck the median while being driven at a high rate of speed. This latter conduct could constitute the doing of a lawful act in an unlawful manner and conceivably could be found to be a violation of the negligent homicide statute while the circumstances might be found not to violate the involuntary manslaughter statute.
As I interpret the statute the evidence of speeding at a remote place would not be relevant. My construction of the involuntary manslaughter statute would not require that any particular state of mind be manifested in order for a person charged with that offense to be found guilty.