(dissenting).
1. I respectfully dissent from the majority’s conclusion and from its interpretation of the involuntary manslaughter statute, NMSA 1978, § S0-2-S(B) ■ (Repl.Pamp.1994). The statute provides in relevant part:
Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.
NMSA 1978, § 30-2-3CB) (Repl.Pamp.1994). The phrase “due caution and circumspection” includes the concept of criminal negligence. State v. Arias, 115 N.M. 93, 96, 847 P.2d 327, 330 (Ct.App.1993), overruled on other grounds by State v. Abeyta, 120 N.M. 233, 901 P.2d 164 (1995). Criminal negligence is conduct which is reckless, wanton or wilful. See State v. Gilliam, 60 N.M. 129, 288 P.2d 675 (1955). Civil negligence, however, is merely failure to exercise reasonable care under the circumstances. See SCRA 1986, 13-1601 (Repl.Pamp.1991).
2. In this case, the majority holds that the “due caution and circumspection” provision of the statute is a necessary element of proof in all cases of involuntary manslaughter. Thus, according to the majority, any act, lawful or unlawful, that serves as a factual predicate for involuntary manslaughter requires a showing of criminal negligence. This holding is not warranted by the language of the statute, and I believe the majority invades the province of the legislature by engrafting this element to the “unlawful act” provision of the statute.
3. Involuntary manslaughter in New Mexico can be premised upon unlawful or lawful acts. This Court has recognized three courses of conduct justifying an involuntary manslaughter conviction: (1) the commission of an unlawful act not amounting to a felony; (2) the commission of a lawful act that might produce death, in an unlawful manner; and (3) the commission of a lawful act that might produce death when committed without due caution and circumspection. State v. Taylor, 107 N.M. 66, 70, 752 P.2d 781, 785 (1988), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989).
4. The legislature intended for unlawfulaei/involuntary manslaughter to require different proof than lawful-act/involuntary manslaughter. Legislative intent is central to the process of statutory interpretation, and intent is gleaned primarily from the language used. Roberts v. Southwest Community Health Servs., 114 N.M. 248, 251, 837 P.2d 442, 445 (1992) (stating that each portion of a statute to be given effect unless a different intent is clearly expressed). In this ease, the intent of the legislature can be inferred first from the structure of the statute. ‘Without due caution and circumspection” is located at the end of the statute and immediately after the “lawful act” portion. A straight-forward reading suggests that “without due caution and circumspection” modifies only “lawful act,” not the earlier “unlawful act” section.
5. The legislature also demonstrated its intent by what it did not include in the statute. The legislature chose not to place an explicit criminal negligence element in the “unlawful act” portion of the statute. Instead, it attached a criminal negligence element after “lawful act,” suggesting that a conscious decision was made to exclude such language from the earlier “unlawful act” section. See State ex rel. Clark v. Johnson, 120 N.M. 562, 576 n. 6, 904 P.2d 11, 25 n. 6 (1995) (referencing use of the statutory interpretation doctrine of “expressio unius est exclusio alterius”); see also 2A Norman J. Singer, Sutherland Statutory Construction § 47.23 (5th ed. 1992) (asserting that where the statutory manner of operation is designated, there is an inference that all omissions should be understood as exclusions).
6. This interpretation is strengthened by analyzing the effect of the majority opinion. Their holding requires a showing of criminal negligence for both unlawful-act and lawful-act involuntary manslaughter. If a criminal negligence showing were intended for both unlawful and lawful acts, the legislature would not have needed to make any distinction between unlawful and lawful acts in its chosen language. Thus, the statute demonstrates the legislature’s intent to distinguish between unlawful and lawful acts, and this Court must effectuate the intent of the legislature by using the plain language of the statute. State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853, cert. denied, 513 U.S. 936, 115 S.Ct. 336, 130 L.Ed.2d 294 (1994).
7. Furthermore, the chosen statutory language suggests an intended policy distinction between involuntary manslaughter based on unlawful versus lawful acts. The commission of an unlawful act involves culpable behavior. When manslaughter results from an unlawful act, a link exists between the defendant’s culpable conduct and the resulting death. Hence, an element of culpability is already present, and the statutory language indicates that no additional showing of criminal negligence is necessary. Conversely, where a lawful act results in manslaughter, no culpable behavior is involved in the underlying act, and the statutory language calls for proof that the defendant acted without due caution and circumspection.
8. This structure recognizes the greater culpability of the defendant who acts unlawfully as opposed to the person who acts lawfully but whose actions result in unintended death. The majority’s holding would treat those who act in an unlawful fashion the same as those acting in accordance with the law, nullifying the distinction between more culpable unlawful acts and less culpable lawful acts. See Roberts, 114 N.M. at 251, 837 P.2d at 445.
9. It is within the power of the legislature to make civil negligence the basis for an involuntary manslaughter conviction. This Court stated in Santillanes v. State, 115 N.M. 215, 218, 849 P.2d 358, 361 (1993), that:
[i]t is well settled that the legislature has the authority to make negligent conduct a crime.
This Court also recognized that the legislature not only has the authority to make such a decision, but also, it is the appropriate body to do so:
[t]he legislature is the proper branch of government to determine what behavior should be proscribed under its police power and thus to define criminal behavior and provide for its punishment.
Id. By imposing a statutory interpretation that eviscerates the plain meaning of the involuntary manslaughter statute, the majority has acted in a capacity which should be reserved for the legislature. Thus, I find that the statute, as written, does not require a showing of criminal negligence for conviction of involuntary manslaughter premised upon an unlawful act.
10.The majority supports their opinion by reliance on New Mexico case law predating State v. Yazzie, 116 N.M. 83, 860 P.2d 213 (Ct.App.1993), the case of Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993), and rationales adopted by other jurisdictions. Such reliance is inappropriate in this instance as the statutory language provides guidance as to the intended effect of the manslaughter statute in New Mexico. As noted by the majority opinion:
[a] statute must be read and given effect as it was written by the legislature, not as the court may think it should be or would have been written if the legislature had envisaged all the problems and complications which might arise in the course of its administration____ Courts must take the act as they find it and construe it according to the plain meaning of the language employed.
State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994) (quoting Perea v. Baca, 94 N.M. 624, 627, 614 P.2d 541, 544 (1980) (in turn quoting Burch v. Fog, 62 N.M. 219, 223, 308 P.2d 199, 202 (1957))). For this reason, the language of the statute should control the interpretation of the law in this instance and the competing rationales of Yazzie and its predecessors are inapposite.
11. The majority also contends that Santillanes supports its conclusion. Santillanes, 115 N.M. at 215, 849 P.2d at 358. Although this Court in Santillanes found that civil negligence is ordinarily an inappropriate predicate by which to define felonious criminal conduct. Santillanes was limited to consideration of a child abuse statute. Id. at 225 n. 7, 849 P.2d at 368 n. 7. While the rationale of the case might appear applicable in this instance, this Court did not extend its rationale beyond the child abuse statute at issue in that case. Id. Thus, the majority’s use of Santillanes to support its position extends the holding in that ease beyond its intended scope.
12. Finally, the majority relies heavily on public policy rationales from other jurisdictions. In this instance, such rationales are not controlling. Instead, as noted earlier, the statutory language here provides a clear manifestation of the intended application of the statute. While shapers of policy may suggest that the majority opinion is more desirable, it is not the function of this Court to second-guess the legislature or to impose what it may deem the more favorable result where the legislature has clearly expressed its intention. Although the judiciary and legislature may differ on the proper form or substance of culpability for an offense, the form and substance remain solely within the province of the legislature to define. See State v. Powell, 115 N.M. 188, 848 P.2d 1115 (Ct.App.1993). For these reasons, I respectfully DISSENT.