(concurring).
Commonplace it is to have appeals by the State of South Dakota briefed and argued by the Attorney General’s office; however, this ease was briefed and then argued by the State’s Attorney of Union County at the State Capitol.
In his argument, the State’s Attorney lamented that lacking a manslaughter conviction “all we can do is to go careless driving” and “get a fine out of him.” The implication was clear (and he so argued): South Dakota should have some law on the books to prosecute an offender whose criminal acts fall between “manslaughter” and “careless driving” — if “reckless driving” does not fit the facts. His brief reflects that only a $65.00 fine for careless driving would ensue herein if a manslaughter charge is dismissed, expressing further that this is not good public policy.
Mr. State’s Attorney expressed in argument that he “wanted the law changed”— referring to the statutory scheme.
If indeed, it was the decisional law of this state which Mr. State's Attorney now wants changed, I would rebuff such argument, also. Historically, this Court has demanded a showing of conduct far more egregious than this set of facts to establish a manslaughter conviction via reckless driving. Under SDCL 22-l-2(l)(d) there must be a “conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certain result or may be of a certain nature.” Under this set of facts, such a mental state does not exist. We have no excessive speed nor drinking of intoxicants involved. Olsen was not using a controlled substance. Olsen’s speed, through testimony, was estimated being between 5 and 15 miles per hour. No testimony regarding the speed of decedent’s automobile was presented. Such absence or lack of proof does not militate well for the State’s proof. It weakens the State’s case greatly, in my opinion. This accident happened on a country road with a young farm boy operating a tractor, in low gear, pulling a disk. The point of impact suggests that Olsen was over V2, if not %, through his left-handed turn towards his parents’ farmstead. An eyewitness to the accident, one Lloyd Saugstad, saw the decedent’s car come over a hill. He opined that a collision was imminent. He further expressed that the accident took place “in a matter of seconds.” Saugstad further testified, that as he watched the car approach, “he’ll surely slow up now.” Repeatedly, Olsen who was stunned and went into shock requiring hospitalization, cried out: “I didn’t see it, I didn’t see.” Obviously he did not for, if he had, he would not have made the ill fated turn. And so, for this mistake of judgment (not seeing the approaching vehicle) must he/should he be prosecuted for a state penitentiary offense? I think not.
Is this a case, factually, akin to State v. Bennett, 326 N.W.2d 720 (S.D.1980) (alcohol and excessive speed)? No. Or does it mirror the factual scenario in State v. Siedschlaw, 304 N.W.2d 102 (S.D.1981) (a wild, high speed chase through a busy, heavily trafficked municipality)? No. Can *479one urge that it resembles State v. Martin, 449 N.W.2d 29 (S.D.1989) (wherein a stalled, abandoned garbage truck was left in the busy traffic lane of an interstate highway, without lights during late night hours)? No. The above cited cases were instances where this Court interpreted second degree manslaughter in the context of a vehicular death occurring on a highway or heavily trafficked street. We should stand by our decisional law.
Error of judgment Olsen apparently made by failing to yield. One may describe it as a thoughtless omission. But if “negligent” or “careless” driving or a thoughtless omission spawns manslaughter prosecutions in this state, the courts will be flooded with these types of prosecutions. If there is a vacuum in the law, i.e., a blind spot between manslaughter and careless driving, our Legislators, at the State Capitol, should fill the gap. It’s not our job.
In my opinion, this young man’s mistake of judgment instills or creates less outrage than a punishment which might flow from further prosecution. Therefore, the Forces of Law, in this instance the Criminal Law, is duty-bound to give way to the ordinary feelings of mankind and to, also, a practical application of the Law itself.
No clear abuse of discretion existing on the part of the Law Trained Magistrate, I would affirm his decision. State v. Oakie, 311 N.W.2d 45 (S.D.1981). A jury should not deliberate upon a felony charge if the elements of the crime are not before the court, regardless of the hierarchial category of that particular court.