¶1dissenting: The statute which the court undertakes to construe in its opinion has already been construed almost fifteen years ago in State v. Goetz, 171 Kan. 703, 237 P. 2d 246.
¶2There the phrase, “murder at the common law,” as used in K. S. A. 21-407, defining manslaughter in the first degree, was construed by the court in the only manner that it could be construed.
¶3Failure to adhere to precedent in the construction of this manslaughter statute only compounds the confusion already existing, and is entirely unwarranted.
¶4*447The appellant recognizes State v. Goetz, supra, is contrary to the position which he takes on appeal, and accordingly relies on the case of People v. Grieco, 266 N. Y. 48, 193 N. E. 634 (1934).
¶5The New York statute, Penal Law, § 1050, defines manslaughter in the first degree as follows:
“Such homicide is manslaughter in the first degree, when committed without a design to effect death:
“1. By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; . , .” (Emphasis added.)
¶6In People v. Grieco, supra, the defendant in a criminal action was charged with driving his automobile in a reckless manner while intoxicated, when he struck a woman and killed her. The defendant did not see the deceased until the very instant of contact. The jury found that the defendant, while committing the misdemeanor charged in the indictment, caused the death of the decedent. In the course of the opinion the court said the commission of the misdemeanor in which the defendant was engaged was not one affecting the person or property of the deceased or of another, and the decision eventually turned upon the fact that the misdemeanor was an independent charge embraced in the indictment. In the opinion the court said:
“In the case at bar the indictment is for manslaughter in the first degree while engaged in the commission of a misdemeanor. We have reached the conclusion that the misdemeanor charged was merged in the charge of manslaughter in the first degree, and, therefore, that there could not legally be a conviction of manslaughter in the first degree because of the fact that the defendant was at the time engaged in the commission of the misdemeanor charged in the indictment.” (p. 54.)
¶7It is readily apparent that the provisions of 21-407, supra, in the Kansas statutes do not contain the phrase “affecting the person or property, either of the person killed, or of another,” as used in the New York statute. Furthermore, on the facts in the instant case, the appellant was not charged independently with the offense of driving while under the influence of intoxicating liquor, which is a misdemeanor.
¶8It is respectfully submitted the appellant’s position that his conduct was not sufficient to constitute “murder at the common law,” which is the statutory language used in 21-407, supra, has been answered contrary to the appellant’s position in State v. Goetz, supra, and the judgment of the lower court should be affirmed.