concurring.
I concur in reversing and remanding for a new trial because Anderson was not allowed to use relevant evidence bearing on an element of the charge. I agree that there was sufficient evidence for the jury to consider so that Anderson was not entitled to a judgment of acquittal. In my view, however, an instruction that addresses Anderson’s defense of accident would not only be proper at the new trial; it would be imperative.
Of course, negligence is not willful conduct. “A person who omits to perform an act does not commit an offense unless he has a legal duty to perform the act.” NDCC 12.1-02-01(2). But, it is not so clear to me, as it appears to be to Justice Vande-Walle, that “[b]y definition, the element of ‘conscious disregard’ excludes negligence,” in ordinary understanding. Certainly, these instructions did not say so.
This jury was properly instructed about the definitions of “willfully,” “intentionally” “knowingly,” and “recklessly.” These instructions say:
The word “recklessly” means that the Defendant engaged in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.
In her defense, the accused testified that her baby crawled to, and fell into, a bathtub of hot water where she had just begun washing dirty diapers, when she left him untended momentarily to get a clean diaper for him. Unless told otherwise, I believe that a jury could very well believe that merely negligent conduct is “a gross deviation from acceptable standards of conduct.”
Justice VandeWalle says that the defendant’s requested instruction was faulty because its reference to “criminal negligence” injects an element inconsistent with North Dakota law. I disagree. In legal parlance, “criminal negligence” often means any willful act with a reckless culpability element, like this one. See Black’s Law Dictionary 373 (6th ed. 1990). While terminologies differ under particular statutes, or between jurisdictions, “criminal or culpable negligence is generally defined, frequently with qualifying adjectives such as ‘wanton’ or ‘flagrant’, in terms of disregard of consequences or indifference to *732the rights or safety of others.” 21 Am. Jur.2d Criminal Law § 132 (1981). But, “the bare neglect of a legal duty is not a crime unless some statute so prescribes”. Id.
This distinction was well put in United States v. Pardee, 368 F.2d 368, 374 (4th Cir.1966), which approved the following language in a prosecution for involuntary manslaughter:
[T]he law is reasonably clear that a charge of manslaughter by negligence is not made out by proof of ordinary simple negligence that would constitute civil liability. In other words, the amount or degree or character of the negligence to be proven in a criminal case is gross negligence, to be determined on the consideration of all the facts of the particular case, and the existence of such gross negligence must be shown beyond a reasonable doubt. If the resultant deaths were merely accidental or the result of a misadventure or due to simple negligence, or an honest error of judgment in performing a lawful act, the existence of gross negligence should not be found.
While the lexicon of our North Dakota statutes differs, using recklessness instead of gross negligence, the concepts coincide. The distinction of recklessness from negligence and accident is the same — and more vital because our statutory phrasing blurs the difference between culpability and innocence.
Generally, a person is not criminally responsible for negligent or unintended results of his conduct, not in itself unlawful, even without an express declaration that there is no criminal responsibility for an act committed through misfortune or by accident. 21 Am.Jur.2d Criminal Law § 131. This is implicitly recognized in our criminal code by the declaration that “A person who omits to perform an act does not commit an offense unless he has a legal duty to perform the act.” NDCC 12.1-02-01(2). I believe that an instruction, that an omission by accident or by negligence is not recklessness, should be given to the jury on remand, if requested, because it is a correct statement of North Dakota law.