(dissenting).
I respectfully dissent. Defendant was charged with a single count — murder. I do not understand the position of the majority to be that the evidence would sustain a conviction of murder. They reason that it would support a finding of wilful neglect *282under SDC 13.3301, a misdemeanor, and since the children died the evidence is sufficient to sustain a conviction of first degree manslaughter under SDC 13.2013 which in part reads: "Homicide is manslaughter in the first degree in the following cases: (1) When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor involving moral turpitude; * * *" They further reason that second degree manslaughter of which defendant was convicted is a necessarily included offense of first degree manslaughter, and thus the conviction must be sustained.
The offense of murder includes all the elements of the lesser included crimes of manslaughter and evidence necessary to establish the greater crime will support a conviction of a lesser crime of manslaughter. State v. Violett, 79 S.D. 292, 111 N.W.2d 598. Manslaughter in the first degree does not include all the elements of manslaughter in the second degree. Manslaughter in the first degree includes a homicide without design to effect death where it has been committed by a person engaged in the commission of a misdemeanor involving moral turpitude. SDC 13.2013. Manslaughter in the second degree is the killing of a human being by "the act, procurement, or culpable negligence" of another. SDC 13.2016. The lesser offense is not "necessarily included" within manslaughter in the first degree. SDC 1960 Supp. 34.3669. The jury might have reasonably found from the evidence that defendant was guilty of manslaughter in the first degree, but it does not follow that the evidence justifies a verdict of the lesser offense of manslaughter in the second degree.
The jury is required to fix the precise offense. SDC 1960 Supp. 34.3671. The defendant thereafter cannot be prosecuted or punished for a higher or lesser offense. He stands acquitted as to such offenses. The jury acquitted defendant of manslaughter in the first degree. He was found guilty of manslaughter in the second degree. The jury acting within its province might reasonably have concluded that defendant was not guilty of the violation of the provisions of SDC 13.3301 or that the deaths were not the natural and probable consequence of *283the commission of such misdemeanor. The brutal acts of the insane mother may have been in the minds of the jurors the proximate cause of the deaths.
This court is committed to the rule set forth in State v. Bates, 65 S.D. 105, 271 N.W. 765, in second degree manslaughter cases. It should not be ignored. Negligence to be sufficient to support a criminal action must be something more than mere inadvertence. "There must be some action from which the jury might, reasonably infer the mens rea". In order to give rise to this mens rea, the jury must find as a fact that the defendant intentionally did something which he should not have done or intentionally failed to do something which he should have done under such circumstances that it can be said that he consciously realized that his conduct would in all probability (as distinguished from possibly) produce the precise result which it did produce. Defendant's parental inattention is not condoned. Nevertheless, resolving all conflicts in the evidence, and reasonable inferences therefrom, in support of his guilt, I am satisfied that it does not meet the criminality test promulgated by this court in the Bates case.
I would reverse.
ROBERTS, P. J., concurs in dissent.