(dissenting in part and concurring in result).
I.
I cannot concur in the part of the opinion which holds the information is insufficient to charge manslaughter in the first degree. The majority opinion cites State v. Belt, 1961, 79 S.D. 324, 111 N.W.2d 588, and while it may not be the intention to overrule it as that opinion dealt with a murder charge (SDC 13.2007) and this offense is first degree manslaughter (SDC 13.2013), it appears to me that the same principle is involved. In Belt the charge of murder stated that on a date certain defendant did "unlawfully, feloniously, wilfully and with malice aforethought, murder a human being, Earl Perreault, and did thereby commit the crime of murder." We upheld this information though *674murder may be perpetrated by four different methods or manners. First degree manslaughter may likewise be committed by four different methods or manners, for while there are only three subdivisions, (2) includes two different methods.
In State v. Hubbard, 1905, 20 S.D. 148, 104 N.W. 1120, the defendant was charged with murder and the trial court instructed on the law of that offense and of manslaughter in the first degree, but refused an instruction for second degree manslaughter. The court held that it was error not to instruct on second degree manslaughter. Therefore, in a charge of murder the information need not, under Belt, state anything more than is set out above and need not state any of the methods or manners set forth in its four subdivisions yet, under Hubbard, the jury must be instructed on manslaughter in both first and second degrees and the jury may convict for any of those included offenses. We have the anomalous situation that a charge of first degree manslaughter must specify one or more of the precise methods of the manslaughter charge and yet a defendant could be convicted of manslaughter in the first degree under a murder charge which did not mention any of the methods of murder or manslaughter in the first degree. Our court held in State v. Edmunds, 1905, 20 S.D. 135, 104 N.W. 1115, an information was sufficient to charge the accused with killing another human being "by means of a dangerous weapon", which are the precise words used in SDC 13.2013(2), when that phrase was omitted from the information.
The remedy of defendant who felt he was entitled to further information in order to prepare his defense would be to ask the court for a bill of particulars or where evidence was offered which he could show was a surprise to him, to make application to the court to postpone the trial to enable him to meet such testimony. State v. Otto, 1917, 38 S.D. 353, 161 N.W. 340. That appeared unnecessary here as defendant was represented by vigorous counsel throughout these proceedings and the transcript of evidence taken at the preliminary hearing, at which both the state and defendant introduced evidence, shows the manner in which the state claimed deceased received the injuries from which death ensued (see State v. Norwick, 1961, 79 S.D. 127, 109 *675N.W.2d 14, and State v. Belt, supra), so clearly that defendant's evidence at the trial included self defense. Defendant was not thereby prejudiced in any respect so as to render the information invalid. SDC 1960 Supp. 34.2902; State v. Ballard, 72 S.D. 293, 33 N.W.2d 339, Giving due respect to those opinions from 1905 to 1961, I do not believe we should make either inroads on, exceptions to or in effect overrule them.
II.
While the question of sufficiency of the evidence to sustain the first degree manslaughter verdict is a close one and I do not agree with all that appears in the cited Kansas Supreme Court opinions, the evidence here lacks the standard set by the New York Court, and therefore I concur in that part of the opinion which holds it insufficient to sustain the verdict of guilty of first degree manslaughter and the consequent reversal of the judgment.
I am authorized to say HANSON, }., concurs in Part I. of this dissent.