My opinion is that the court should decide first whether the district judge was right in maintaining that, under the separability clause (art. 144) in the Criminal Code, his declaring the second paragraph of Article 32 unconstitutional could not affect the constitutionality of the remaining part — the first and third paragraph — of the article. The defendant in this case is not concerned with the question of constitutionality or unconstitutionality of the second paragraph of Article 32 unless by *Page 882 declaring that paragraph unconstitutional the court would have to declare the article entirely unconstitutional.
I agree with the district judge that the second paragraph of Article 32 is so separable from the two other paragraphs that the declaring of the second paragraph unconstitutional could not affect the constitutionality of the two other paragraphs; hence I see no necessity in this case for passing upon the constitutionality of the second paragraph. That paragraph is merely a rule of evidence and is not at all indispensable in defining and denouncing the crime of negligent homicide.
For these reasons I concur in the decree in this case.