Dissenting
I find myself unable to agree with the opinion of the court. The issues presented seem to me of sufficient importance to *195warrant some indication of the reasons which prompt a contrary view. The problem is one which has long troubled the justices at nisi prius as they faced the necessity of giving proper instructions to juries.
I do not understand that the court intends by its opinion to question the power of the legislature to define crimes so long as it keeps within the bounds of the constitution. That issue is not controversial. As was stated in 14 Am. Jur. 766, Sec. 16, “The legislature has the power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders, and generally to enact all laws deemed expedient for the protection of public and private rights and the prevention and punishment of public wrongs, the expediency of making any such enactment being a matter of which the legislature is the proper judge.” The power of a legislature to define a crime based upon ordinary negligence has been recognized in other jurisdictions. State v. Hedges, 8 Wash. (2nd) 652, 113 P. (2nd) 530; Clemens v. State, 176 Wis. 289, 185 N. W. 209; People v. Pociask, 14 Cal. (2nd) 679, 96 P. (2nd) 788. I conclude that our legislature could then, if it saw fit, impose criminal penalties for ordinary negligence on the part of a hunter resulting in the shooting and wounding or killing of a human being. The issue is rather whether it has done so by the definition of the crime set forth in R. S. 1954, Chap. 37, Sec. 146.
The court holds that the negligence and carelessness referred to in that statute must be of the degree usually referred to as gross and culpable such as has always been required for a conviction for involuntary manslaughter at common law. State v. Wright, 128 Me. 404; State v. Ela, 136 Me. 303, 308; see State v. Pond, 125 Me. 453. The statute itself does not specify the degree of negligence. The question can be resolved only by ascertaining what the legislature intended by its use of the words “negligently or carelessly” in this particular enactment. The shooting and kill*196ing of another as the result of gross and culpable negligence spells involuntary manslaughter and is punishable under the provisions of R. S. 1954, Chap. 130, Sec. 8 by “a fine of not more than $1000 or by imprisonment for not more than 20 years.” (Emphasis supplied). The maximum sentence to imprisonment imposable under It. S. 1954, Chap. 37, Sec. 146 is, however, but ten years. If the negligence referred to in Chap. 37, Sec. 146 means what the court now holds that it means, we have an interesting paradox, for the legislature is providing two different punishments for the same crime, i.e., involuntary manslaughter. If the respondent killer is a hunter and prosecuted as such, the maximum term of years to which he can be sentenced is ten, but if he is a non-hunter, he faces a maximum sentence of twenty years. I cannot believe the legislature so intended. In my view, the legislature had in mind the alarming increase in so-called hunting accidents in our Maine forests. The recreation industry is one of the most valuable assets of the State. It will most certainly be impaired if hunters fear to enter the woods. An even greater consideration is the protection of our Maine citizens and our guests from death or bodily harm. I think it can safely be asserted that most of these tragic accidents result, not from any wanton or reckless indifference to the safety of others such as would base a charge of manslaughter, but rather from a simple failure to exercise ordinary care in the use of a deadly firearm. All too often, the respondent and his victim are related by ties of blood or marriage or have for many years been close friends or hunting companions. Rare indeed would be the case in which the State could show that one was recklessly indifferent to the safety of another to whom he was bound by such relationship. Rather are we dealing for the most part with the respondent who was morally certain that he saw game and who merely failed to take that long and careful second look which reasonable prudence demands before pulling the fatal trigger. In my view, the legislature in its *197wisdom has concluded that only by imposing rigorous penalties for the failure to exercise ordinary care and prudence can the hunters who roam our woods be compelled to be careful. It seems clear to me that the legislature has defined a new crime made purposely severe as to the degree of negligence to be proven and limited in its application only to hunters. The holding of the court, requiring as it does proof by the State of gross and culpable negligence and a wanton disregard of consequences, seems to me to depart from the practical realities of the situation and virtually to emasculate the statute.
Cases cited in the opinion of the court which relate either to the degree of negligence required at common law as a basis for conviction for manslaughter, or to specific statutory definitions of “criminal negligence” in other jurisdictions, do not seem to me controlling of the issue before us. I find no suggestion in any of them that a legislature may not in the exercise of the police power and under proper circumstances impose penalties for the failure to exercise ordinary care. That is exactly what our legislature intended to do by its enactment of this law. My interpretation of the legislative intent underlying this statute was obviously shared by the learned justice below. I would overrule the exceptions.