(dissenting);
With due respect to the view set forth in the main opinion, I see this case in quite a different light and cannot agree to the reversal nor join in what seems to me as substantial weakening of the law whose purpose it is to prevent the killing of others in driving while intoxicated.
It will be noted from the instructions given, that the trial court took cognizance of the requirements of the applicable statutes and that the instructions conformed thereto. From those instructions, the jury could not fail to understand that they could not convict the defendant for merely being negligent, nor unless he drove in reckless disregard of the safety of others, or so under the influence of intoxicating liquor *1229that he could not drive safely, and thus was hazarding the safety of others, plus the fact that he drove in such an erratic manner as to constitute negligence, i. e., without due care for the safety of others, or otherwise stated, in a careless manner.
The pertinent part of Instruction No. 20 stated:
Before you may find the defendant guilty of Negligent Homicide, the State must prove by evidence which satisfies you beyond a reasonable doubt, each of the following elements:
* * * * * *
2. That Johnny Michael Chavez drove a vehicle in reckless disregard of the safety of others;
3. That said driving proximately caused the death of Eric Skollingsberg.
If the evidence has failed to so establish one or more of said elements then you cannot find the defendant guilty of Negligent Homicide.
The other significant instruction to be considered in conjunction with the foregoing is instruction No. 15, the part of which is pertinent to the issue involved in this case, included these elements:
Before you can convict the defendant, Johnny Michael Chavez, of the crime of Automobile Homicide you must find from the evidence, beyond a reasonable doubt, all of the following elements of that crime:
* * * * * *
2. That the defendant then and there drove the motor vehicle while under the influence of intoxicating liquor, to a degree which rendered him incapable of safely driving a vehicle; and,
3. That the defendant so operated or drove the motor vehicle in a negligent manner-, and,
injured Eric Skollingsberg, proximately causing his death, by operating or driving such vehicle while in such intoxicated condition and in a negligent manner.
In considering the effect and applicability of the foregoing instructions, it is also important to have in mind that Section 76-2-101, relied upon by the main opinion, is a general statute relating to crimes generally, whereas Sec. 76-5-207(1) under which the defendant was convicted, is specific as to the crime for which the defendant was convicted.
It provides:
(1) Criminal homicide constitutes automobile homicide if the actor, while under the influence of intoxicating liquor, a controlled substance, or any drug, to a degree which renders the actor incapable of safely driving a vehicle, causes the death of another by operating a motor vehicle in a negligent manner.
The universally accepted rule is that a specific statute takes precedence over a general one.1 Therefore, the definition of defendant’s crime is found in the just-quoted statute.
Attention is called to the fact that this case is but a replay of the cases of State v. Durrant and State v. Wade referred to in the main opinion, which were 3-2 decisions. In order to avoid repetition and further exposition thereon, I quote from the reasoning and the holding of the Wade case as to applicability of the two statutes referred to.
If the two statutes are considered together and each given its intended effect, we see no such conflict. It will be noted that under Sec. 201 an act may be criminal homicide if done “intentionally, knowingly, recklessly or with criminal negligence” in the disjunctive, and therefore does not necessarily require criminal negligence. In the cases referred to we have expressed our opinion that one who knowingly undertakes to drive a motor vehicle upon a public highway while he is intoxicated is acting recklessly and in disregard of the rights and safety of others ; [citing cases] and that when this reckless conduct is combined with any negligence which causes the *1230death of another, that constitutes automobile homicide under the provisions of Sec. 207(1) above quoted. We reaffirm that position and reject the urgence on defendant’s behalf that those cases should be overruled. [All emphasis herein is added.]
I reaffirm my conviction: that that is a correct statement of the law; that our prior cases should not be overruled; and that if there is to be any such dramatic change, it should be done by the legislature.
In addition to what has been said above, there is a further sound and persuasive reason why there should be no reversal of the jury verdict and judgment in this case. Under the facts set forth in the main opinion: that the defendant’s blood showed .19 content of alcohol, (more than twice the .08 required by statute for prima facie intoxication),2 there can be no question but that the defendant was so drunk that it was extremely dangerous for him to be driving on a public highway. This is plainly evident by the further facts that he wasn’t even driving on the travelled portion of the street, but in the gutter, at high speed; that he passed several cars stopped at the intersection for a red light, continued on into that intersection and collided with Mr. Skollingsberg’s car which resulted in the death of two-year old Eric Skollingsberg. Even if it should be assumed that there was some technical error in the instructions (with which assumption I do not agree), I cannot believe that there is any likelihood whatsoever that there would have been a different result. That being so, under the mandate of our statute, Sec. 77-742-1, and our well-established decisional law, there should be no reversal for mere technical error.3
I would affirm the conviction.
HALL, J., concurs in views expressed in the dissenting opinion of CROCKETT, C. J.. 82 C.J.S., Statutes, § 347.
. Sec. 41-6 — 44(b) 3. U.C.A. 1953.
. See State v. Scandrett, 24 Utah 2d 202, 468 P.2d 639; and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726. 23 L.Ed.2d 284.