(specially concurring).
I concur in the majority opinion as to the law set forth but disagree with the application of the facts of this matter to that law. Because of the complete agreement by other members of this Court, I do not desire to file a dissent in this matter but would like to express my views as to why the jury verdict should be upheld.
A.R.S. § 13-451 states:
“A. Murder is the unlawful killing of a human being with malice aforethought.
“B. Malice aforethought may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. [Emphasis supplied.]
Thus, the requirement of malice necessary to convict for the crime of murder in Arizona may be express or implied. Malice may be inferred from the circumstances attending the crime as manifested by an abandoned and malignant heart which is equivalent to an express intent to murder. The requisite of abandoned and malignant heart is synonymous with a reckless and wanton disregard of obvious human risk. In other words, where the circumstances demonstrate a plain and strong likelihood that death or great bodily injury may result, an accused may be tried for murder as such conduct implies malice.
*78The majority opinion concludes that “[tjhere was no evidence in the record tending to show 'that defendant had by the use of any weapon indulged in vicious or brutal conduct which might support a finding of ‘an- abandoned and malignant heart.’ ” This conclusion supplants the determination of the jury which, after hearing the evidence, rendered a verdict convicting defendant of second degree murder. The jury was instructed and found that defendant’s conduct distinctly manifested “an abandoned and malignant heart” necessary to convict him of murder.
We have in prior cases consistently and frequently held that the requirement of malice ’is a question of fact for the jury to determine. State v. Rivera, 94 Ariz. 45, 381 P.2d 584; State v. Preis, 89 Ariz. 336, 362 P.2d 660; Bennett v. State, 15 Ariz. 58, 136 P. 276. Where there has been a conviction the evidence must be considered in a light most favorable to the state and to upholding that conviction. State v. Rivera, supra; Macias v. State, 36 Ariz. 140, 283 P. 711. While there are no Arizona cases directly on point, we stated in Steffani v. State, 45 Ariz. 210, 217, 42 P.2d 615, where the defendant was prosecuted for manslaughter by automobile: .
“The law requires one operating an automobile 'on the public highway at all times to'have it under control, and this is especially true where cars are approaching each other from different directions, with bright headlights calculated to interfere with one’s vision.
A speed under such circumstances might be reckless and wanton which in the absence of such blinding headlights would ■ be reasonable and prudent. So we cannot say, as a matter of law, that the court was not justified in submitting the q^lestion of speed and recklessness to the jury.” [Emphasis supplied.]
The case law would indicate that the presence or absence of malice, express or implied, is to be left to the jury, and unless there is no reasonable basis for its finding, this Court will not reverse the jury’s verdict.
The following cases from other jurisdictions have held, discussed or suggested that driving while intoxicated and speeding may be sufficient to charge and convict a person of second degree murder. People v. McIntire, 213 Cal. 50, 1 P.2d 443; State v. Palmer, 197 N.C. 135, 147 S.E. 817; Goodman v. Comm., 153 Va. 943, 151 S.E. 168; Norman v. State, 121 Tex.Cr. R. 433, 52 S.W.2d 1051 (felony murder rule); State v. Massey, 20 Ala.App. 56, 100 So. 625; Ware v. State, 47 Okl.Cr. 434, 288 P. 374; Hyde v. State, 230 Ala. 243, 160 So. 237; State v. Trott, 190 N.C. 674, 130 S.E. 627, 42 A.L.R. 1114; State v. Goldberger, 118 Conn. 444, 173 A. 216; *79State v. Shepard, 171 Minn. 414, 214 N.W. 280; See generally 99 A.L.R. 756.
In A.R.S. § 13-451 there is no requirement the state must show that defendant deliberately used his automobile as a weapon to inflict injury. To construe the statute to require that “the use of a weapon or other appliance likely to produce death, and by the brutal and bloodthirsty use of such instrumentality” is too narrow a construction and would seriously hinder prosecutions for murder where the conduct of an accused is in wilful disregard of unreasonable human risk.
The facts of this case considered in light of the applicable law would indicate the jury verdict in this matter should be affirmed. There was testimony from several witnesses that the accused was driving between 80 and 100 miles per hour just prior to the accident. There was testimony the accused had been drinking prior to the accident; that he drove in the wrong lane for a considerable distance and that two vehicles had to leave the road to avoid a collision with defendant’s vehicle. The evidence showed there were no tire skid marks on the road surface which would indicate the accused attempted to stop or slow down prior to the collision, and there was testimony the accident occurred primarily in the wrong lane or close to the center line when the other driver was trying to evade defendant’s car. These cumulative facts, as presented to the jury, resulted in a conviction of second degree murder. Where the question is so close as here, and the verdict is supported by the evidence, this Court should exercise caution and restraint in reversing the jury’s verdict.
The facts would indicate the accident was not the typical automobile accident where a driver makes a gross error of judgment and is thus tried for manslaughter. Rather, the conduct surpasses the usual vehicle manslaughter case and demonstrates characteristics of wanton conduct and an abandoned and malignant heart. The jury found that the accused should have known of the plain and obvious likelihood that death or great bodily injury could have resulted from driving his automobile in such a manner.
While I feel the conviction of second degree murder by the jury should be affirmed under these facts, nonetheless I yield to the opinion of the majority and hold that the judgment of the lower court is reversed, and that the case be remanded to the trial court for further proceedings in accordance with the majority opinion.