(concurring).
Stetter was not simply under the influence of alcohol when he killed this little girl.
Lest, for posterity, the facts become obscure through time or sanitized as the analytical mind applies lawyers’ logic to the facts at hand, for1 the sake of Krista Baker, an innocent six-year-old girl, these facts should be noted: *
• This collision was eyewitnessed and the cries of anguish of the mother for her deceased child rang out into the night, the jury heard testimony such as “Where’s my baby?”
• A Belle Fourehe police officer arrived at the scene approximately two minutes after the collision.
• Stetter was not just under the influence of an intoxicating beverage, he was dead drunk with a 1.95% of alcohol in his blood at 8:25 p.m. and a 1.60% of alcohol at 9:40 p.m.
• Stetter consented to a urine sample, to check for drugs, and he had a small amount of marijuana — THC metabolid— in his system.
• Found in Stetter’s car, was an open bottle of peppermint schnapps and beer cans. A witness, Holly Kester, testified that Stetter was drinking peppermint schnapps when he ate dinner with her. Very shortly after he left her to go find his girlfriend (approximately fifteen minutes), Kester saw the rescue vehicles on the highway near the accident scene.
• Stetter admitted, at the hospital, that he had consumed alcoholic beverages, including “roughly a pint of whiskey.” Five witnesses testified that Stetter began drinking intoxicants early in the afternoon and was seen in two saloons during the late afternoon hours.
• Shortly before the collision, at approximately 7:00 p.m., Stetter was warned by his girlfriend not to drive because he was intoxicated; she tried to keep the keys from Stetter and tried to prohibit him from driving, but he ignored her admonitions.
• Concerning the above blood tests, Stet-ter consented, actually consented by words and action, to the taking of his blood. The record establishes that this case established his sixth DWI arrest since 1985. One case was dismissed pursuant to a plea bargain. However, the point is, he was a habitual drunk driver and he killed this little girl.
• Stetter has advanced no argument that his habitual criminal convictions are invalid.
• When Krista was taken to the Belle Fourehe hospital, she was examined by Dr. Gregg Hewitt, who determined that she had no vital signs and that her “skull was exposed, and it appeared that it was broken out and pushed to the back, up into her brain.” Trial transcript at 362. The mother’s right leg, bone and all, was shattered into multiple pieces and she had 14 facial stitches. It was so severe that Dr. Hewitt testified that her injuries could have been life threatening. Ultimately, a rod was placed in her leg and she has a serious permanent injury.
• Father’s neck had an alarming development from the trauma because of the great swelling which could precipitate a “respiratory compromise, from pressure on the trachea” per the examining physician. There was also a big mass of swelling on the father’s jaw and he had internal bleeding and a cracked rib.
• Due to his previous drunken driving convictions, Stetter was driving while his license was revoked and without insurance.
Not the prosecutor, not the Attorney General’s office, not the doctors, not the law enforcement officers, not the witnesses who testified, and not the trial judge, caused Stet-ter to be convicted of first degree manslaughter with two counts of aggravated assault. Stetter claims his fate is ill-deserved, but Stetter chose his own fate. He was convicted of manslaughter in the first degree because of his own transgression.
*94This case was moved to Pennington County — due to the outrage in Butte County, situs of the tragedy. Why? Because the South Dakota Judicial System, through the trial court’s ruling, wanted to ensure a fair trial. An experienced, able, and knowledgeable trial judge presided in this case. Stetter had a fair trial. Truly, the weight of truth abounded and I join the opinion of Justice Sabers. Justice has been served.
I have carefully reviewed Jury Instructions numbered 14, 15, 17, and 18. These instructions do not embody the specifics of “willful and wanton misconduct” upon which Stetter bases his appeal. He requested an instruction, 1 C, and advocates that the trial court committed reversible error in not advising the jury of his viewpoint of the law. State v. Seidschlaw, 304 N.W.2d 102 (S.D.1981), as Justice Wuest has pointed out, be it dicta or otherwise, did mention “willful and wanton misconduct” as a standard of driving behavior contemplated in SDCL 22-16-15. It should be pointed out that the old “guest statutes,” namely SDCL §§ 32-34-1 and 32-34-2 were repealed by the State Legislature in 1978. It appears to this author that “willful and wanton misconduct” is not a standard to apply in a first-degree manslaughter case in this state.
In Jury Instruction 14, as given by the trial court, the jury was instructed to consider the elements set forth in SDCL 22-16-15(3) and therein advised the jury that “the State must prove that the killing by the Defendant was by means of a dangerous weapon.” Then, the trial court, by Jury Instruction 15, instructed the jury as to what a dangerous weapon could be and that included this phrase “... or by the manner in which it is used death or serious bodily harm is a probable result.” It is clear, per Instruction 15, that the jury could not convict Stetter unless it were to find his automobile to be a dangerous weapon, used in a manner where death or serious injury is a probable result. Furthermore, the trial court advised the jury under Instruction 17, that manslaughter in the second degree must be “reckless” and “neither murder nor manslaughter in the first degree.” Obviously, the jury believed that Stetter’s driving was more than reckless. Finally, the trial court instructed by way of Instruction 18, that the term “reckless” was “a conscious and unjustifiable disregard of a substantial risk.”
When read together, and as a whole, manslaughter in the first degree was required to be an act by way of spawning a “probable result” with a lethal instrument and beyond “recklessness” or “a conscious and unjustifiable disregard of a substantial risk.” In layman’s jargon, first degree manslaughter requires proof that the use of an automobile is of such a nature that death or serious harm was a “probable result.” Stetter was blind drunk, driving on a heavily traveled highway, over the speed limit and refused to turn over his keys to the automobile he owned. A potential collision is obvious from this type of driving conduct. Due to Stetter’s previous convictions for driving while intoxicated, he had grounds to be aware of the risk when he went out on the road in his condition. This rivets on the “probable result.” See United States v. Fleming, 739 F.2d 945, 949 (4th Cir.1984). Stetter’s past driving record and conduct does not suggest any innocence on his part. His acts on November 15, 1991, were the creation of a death scenario because there was a probable result of his killing or seriously injuring travelers on the highway.
Stetter must establish that if a different instruction or instructions had been given, the “jury might and probably would have” returned a different verdict. State v. Willis, 370 N.W.2d 193, 200 (S.D.1985). Here, facts were presented to the jury proving Stetter’s calloused indifference to the danger he posed to the public. Laws, now on the books, were enacted by our State Legislature for the very purpose of addressing the egregious record and driving conduct of Stetter. This jury heard these facts of woe and death. Its conclusion: Guilty of First Degree Manslaughter and other felonies. Had the trial court instructed differently, the jury would not have returned a different verdict, in my opinion. Id.
This is the type of case which spawns appeals and habeas corpus actions for years to come. Histo-nans can (sometimes) alter the past. Therefore, the facts of this case should be recorded.
. For example, in conjunction with instructions on second-degree murder, the jury was told in part that:
The phrase "evincing a depraved mind, regardless of human life” as used in these instructions means a person having an inherent deficiency of moral sense and rectitude; more than a high degree of negligence or recklessness must exist, and the mind must not only disregard the safety of another but be devoid of regard for the life of another.
Whether the conduct is imminently dangerous to others and evincing a depraved mind regardless of human life is to be determined from the conduct itself and the circumstances of its commission.
Juiy Instructions No. 11 and 12.