DISSENTING OPINION OF
MIZUHA, J. WITH WHOM ABE, J., JOINS.Section 291-7, R.L.H. 1955, defines manslaughter as follows:
“Whoever kills a human being without malice aforethought, and without authority, justification or extenuation by law, is guilty of the offense of manslaughter.”
In 1940, in Territory v. Yoshimura, 35 Haw. 324, at 328, this court said:
“Express intent is not an essential in the crime of manslaughter. Negligence and reckless indifference to the lives and safety of others supply the intent for the purpose of the criminal law. Manslaughter may not only be committed while doing an unlawful act but may occur in the doing of a lawful act in a grossly negligent manner. (People v. Campbell, 237 Mich, 424, 212 N.W. 97.) ”
This court then required negligence and reckless indifference, the sum of which amount to gross negligence for manslaughter.
In 1941, the legislature passed § 291-10, the negligent homicide statute, which reads:
*365“Every person who by the operation of any vehicle in a careless, reckless or negligent manner, but not wilfully or wantonly, causes the death of another, shall be guilty of the crime of negligent homicide * *
This statute was taken almost verbatim from the vehicular negligent homicide statute of Michigan which was the first jurisdiction to adopt such a statute in 1921. In 1927, the Supreme Court of Michigan construed the statute relied upon in Territory v. Yoshimura, supra, in People v. Campbell, 237 Mich. 424, 212 N.W. 97 at 99:
“By the enactment of this statute, the Legislature of 1921 obviously intended to create a lesser offense than involuntary manslaughter or common-law negligent homicide, where the negligent killing was caused by the operation of a vehicle. To do this it eliminated as necessary elements of the lesser offense negligence classed as wanton or willful. Included in these terms is gross negligence. So that, in the enactment of the statute, there was expressly eliminated as elements of the crime all negligence of such character as to evidence a criminal intent; and, as we have before pointed out, wanton or willful or gross negligence was of that character. Therefore this statute was intended to apply only to cases where the negligence is of a lesser degree than gross negligence.” [Emphasis added.]
In State v. Tamanaha, 46 Haw. 245, at 249, 377 P.2d 688 at 691, this court stated:
“It is significant that in the 1941 legislative session the territorial legislature, while enacting the negligent homicide statute, which specifically excludes the concepts of wilfullness or wantonness and ties the word ‘reckless’ in with the terms ‘careless’ and ‘negligent,’ at the same time amended what is now R.L.H. 1955, § 311-1 by substituting the word ‘carelessly’ in place of the term ‘furiously.’
“This would seem to indicate a legislative intent to make ordinary negligence the standard of conduct under both the negligent homicide and the ‘careless and heedless’ driving *366statutes. The word ‘furiously’ is certainly more indicatory of wilful and wanton conduct than the term ‘carelessly’ which negates such notion.”
This court defined “recklessness” as
“* * * ‘recklessness’ is more than ‘negligence’ and generally implies lack of care coupled with disregard for consequences, and conduct which is more than negligent may be reckless without being wilful or wanton. Skalla v. Daeges, 234 Iowa 1260, 15 N.W.2d 638, 642. Or, as aptly stated in La Marra v. Adam, 164 Pa. Super. 268, 63 A.2d 497, 501: “Recklessness implies conscious appreciation of the probable extent of danger or risk incident to contemplated action, while negligence in the legal sense implies knowledge only of a probable source of danger in the act.” Lloyd v. Noakes, 96 Pa. Super. 164, 168.’ ” State v. Tamanaha, supra, 46 Haw. 245, at 248, 377 P.2d 688 at 690-691.
This court rejected the contention that “reckless” means “gross negligence,” and concluded that by tying the word “reckless” to the words “careless and negligent” in the negligent homicide statute, the legislature made ordinary negligence as the standard of care.
By Act 48, S.L.H. 1964; the legislature amended Section 291-10. The urgency statement sets out reasons for its enactment:
“At present the crime of negligent homicide is treated as a felony with the penalty of imprisonment at hard labor for not more than five years. This is a harsh penalty for a person who through simple negligence causes death. Further, this penalty has not proven to be a significant deterrent to careless, reckless or negligent driving. The remedy to this problem is to treat negligent homicide due to gross negligence as a felony and negligent homicide due to simple negligence as a misdemeanor. * * *”
A careful reading of this urgency statement would indicate that the legislature was aware of the fact that the existing negligent homicide statute § 291-10, providing for a penalty of imprisonment at hard labor for not more than five years was too *367harsh a penalty for a person who through simple negligence causes death (emphasis added). It felt that this harsh provision in the negligent homicide statute had not proven to be a significant detriment to careless, reckless or negligent driving. Hence, the desire of the legislature to treat negligent homicide due to gross negligence as a felony, and negligent homicide due to simple negligence as a misdemeanor.
From the foregoing, it is apparent that Act 48, S.L.H. 1964, is ex post facto in its retroactive application to defendant, and her conviction is void. Under § 291-10 prior to the amendment, defendant could only have been found guilty of negligent homicide for simple negligence. At worst, her conduct could be termed “reckless,” but with the limitation placed on such conduct in State v. Tamanaha, supra, and equated with the terms “careless” and “negligent.” Defendant is now convicted of a crime of negligent homicide in the first degree, conduct specifically termed in the statute as “grossly negligent,” the standard of conduct which was previously necessary to sustain a conviction for manslaughter.
This definitely increases the public disgrace, opprobrium and ignominy attendant to defendant’s conviction of the crime of negligent homicide. As stated in Calder v. Bull, 3 U.S. (3 Dallas) 386, 390, “Every law that aggravates a crime, or makes it greater than it was, when committed,” is ex post facto, and therefore void. Previous to the enactment of Act 48, S.L.H. 1964, anyone convicted of the violation of § 291-10 was guilty of negligent homicide based on simple negligence as defined by this court in State v. Tamanaha, supra. Defendant now stands convicted of the violation of § 291-10 as amended, and her guilt of the crime of negligent homicide is based on gross negligence. Act 48, S.L.H. 1964, as applied to defendant by definition, aggravated the crime she committed, and made it greater than it was, when committed.
I would reverse.