(dissenting).
It was reversible error for the trial court to refuse to give the requested lesser included instruction on careless driving.
The majority opinion clearly sets forth the two part test for giving a lesser included offense instruction. See also, Gillespie, 445 N.W.2d at 663; Heumiller, 317 N.W.2d at 132; State v. Oien, 302 N.W.2d 807 at 809 (S.D.1981). However, the majority incorrectly applies that test to the facts of this case. Wall was charged and convicted of second-degree manslaughter. SDCL 22-16-20. Under the facts of this case, Wall was, in reality, charged and convicted of second-degree vehicular manslaughter. I wholeheartedly agree with this majority writer’s statement in State v. Olsen, 462 N.W.2d 474 (S.D.1990):
Historically, this Court has demanded a showing of conduct far more egregious than this set of facts to establish a manslaughter conviction via reckless driving.
Id. at 478 (Henderson, J. concurring) (emphasis added). In other words, a charge of second-degree vehicular manslaughter is reckless driving with a resultant death.*
The legal test is met:
(1) the elements of careless driving, SDCL 32-24-8, are, in reality, fewer in number than reckless driving with a resultant death, SDCL 22-16-20 and 32-24-1.
(2) the penalty is less for careless driving.
(3) the two offenses contain common elements so that reckless driving with a resultant death cannot be committed without committing careless driving.
The factual test is also met. There is sufficient evidence, “when read in the light most favorable to the defendant” to support a conclusion by the jury that reckless driving was not committed and careless driving was committed. Heumiller, 317 N.W.2d at 132.
The majority’s version of the facts fails to consider the conflicting testimony of the investigating officer and the expert opinion of Dr. Oliver concerning the speed of Starkey’s pickup and Wall’s motor home. Although investigating officer Booth testified that the speed of the Starkey pickup after impact was 70 or 83 mph, he promptly admitted those estimates were incorrect and later admitted that he had no reason to disagree with Dr. Oliver’s calculations. Dr. Oliver testified from measurements, some of which were taken by Booth, and from calculations, that the Starkey pickup was traveling 49 mph after impact. Dr. Oliver further testified that the Wall motor home was only traveling seven mph faster than the Starkey pickup at the time of impact, i.e., 56 mph. This dispute as to whether Wall was speeding raises the nec*270essary conflict “with regard to the element of the greater offense that is not an element of the lesser”, i.e., recklessness. Gillespie, 445 N.W.2d at 663. The majority errs by using a version of the facts most favorable to the state.
Even if the dispute concerning speed were properly determined against Wall, it does not necessarily mean that Wall was driving recklessly. There was testimony by officer Booth that indicated strong southerly winds may have contributed to the accident. Therefore, careless driving is a lesser included offense and the instruction should have been given. We should reverse and remand for a new trial based on proper instructions.
I join Justice Amundson’s dissent on Issue III for the reasons stated therein and for the reason that the unfairness resulting from the combined errors in this case requires a new trial. See State v. Rufener, 892 N.W.2d 424, 434 (S.D.1986) (Sabers, J., dissenting).
See, United States v. Pino, 606 F.2d 908, 916-17 (10th Cir.1979) (refusal to give lesser included careless driving instruction when defendant was charged with involuntary manslaughter was prejudicial error); State v. Barela, 95 N.M. 349, 622 P.2d 254 (App.1980) (refusal to give lesser included instructions, which included careless driving, when defendant was charged with homicide by vehicle by reckless driving was reversible error).