(dissenting).
I respectfully dissent because it is my opinion that the trial court erred in rejecting Stetter’s proposed jury instruction on the standard of conduct necessary for a guilty verdict on a charge of manslaughter in the first degree. Thus, his motion for a new trial should have been granted.
Stetter was charged with a violation of SDCL 22-16-15(3), which statute provides: “Homicide is manslaughter in the first degree when perpetrated: (3) Without a design to effect death, but by means of a dangerous weapon.”
We have previously noted the distinction between first-degree manslaughter and second-degree manslaughter. State v. Seidschlaw, 304 N.W.2d 102, 105 (S.D.1981). Further, we stated:
Although an automobile is not calculated or designed to inflict death or serious bodily harm, it can be used in a manner that is likely to inflict death or serious bodily harm and, when so used, it constitutes a dangerous weapon within the meaning of SDCL 22-1-2(9)_ It cannot be said that an automobile ... even one being driven carelessly, is being used in a manner that will probably result in death or serious bodily harm. Although such a result may be possible, it is not probable. The driving behavior contemplated in SDCL 22-16-15 can be compared to “willful and wanton misconduct,” as defined in the guest statute eases_ [T]he first-degree manslaughter statute requires proof that the use of the automobile was of such a nature that death or serious bodily harm was a probable result.
304 N.W.2d at 105-06 (emphasis added) (citing Brewer v. Mattern, 85 S.D. 356, 182 N.W.2d 327 (S.D.1970)). The majority opinion discounts this writing as mere “dicta.” I disagree. Seidschlaw clarified the nature of the conduct that must be proved by the State to sustain a conviction of first-degree manslaughter, and the jury in the present ease should have been so informed. The giving of an instruction that simply tracks the wording of a statute is not necessarily sufficient; where pertinent, applicable decisional law should be incorporated into the instruction so that the law is correctly stated and the jury is fully informed. State v. Oster, 495 N.W.2d 305, 312 (S.D.1993) (holding that where crucial wording is missing from a jury instruction, the trial court failed to accurately inform the jury of the law).
Other opinions of this court have discussed the standard of conduct for a manslaughter conviction. For example, considering the nature of the “reckless” conduct that must be proved to sustain a second-degree manslaughter conviction, we stated that “Opera*96tion of a motor vehicle in violation of the law, without more, is not sufficient to constitute reckless conduct, even if there is a fatality as a result thereof.” State v. Wall, 481 N.W.2d 259, 263 (S.D.1992) (citing State v. Olsen, 462 N.W.2d 474, 477 (S.D.1990)). In Olsen, we noted that, “ ‘[N]ot every violation of law or unlawful act in the operation of a motor vehicle will render the operator criminally responsible for deaths which may result. Such an operator ... must evidence a disregard of human life or an indifference to the consequences of his acts.’ ” Olsen, 462 N.W.2d at 477 (quoting Commonwealth v. Kaulback, 256 Pa.Super. 13, 389 A.2d 152, 154-55 (1978)). Clearly, these cases show that there is some standard of conduct that must be proved by the state to sustain a conviction for manslaughter in the degree charged, a standard on which a jury must be instructed.
The record in the present case shows that the jury was instructed on standards of conduct for the other homicide charges — murder in the second degree,1 second-degree manslaughter,2 and vehicular homicide. The jury ought also to have been instructed on a standard of conduct for first-degree manslaughter.
The majority opinion excuses the trial court’s failure to instruct on a standard of conduct for first-degree manslaughter by looking to Jury Instruction No. 15, which defined the phrase “dangerous weapon.” It is not plausible to expect a jury to look to a “dangerous weapon” instruction in the hopes of finding a standard of conduct for the crime charged imbedded within said instruction. The purpose of the “dangerous weapon” instruction is to define that term — not to describe a standard of conduct for first-degree manslaughter.
In sum, the determination of whether Stet-ter was guilty of first-degree manslaughter was made without adequate instructions to the jury. I would reverse the circuit court’s denial of a motion for new trial.
. In regard to second-degree manslaughter, the jury was instructed that:
The words 'reckless' or 'recklessly' or any derivative thereof as used in these instructions means a conscious and unjustifiable disregard of a substantial risk that one’s conduct may cause a certain result or may be of a certain nature.
A person is reckless with respect to circumstances when he consciously and unjustifiable disregards a substantial risk that such circumstances may exist.
Jury Instruction No. 18.