¶1dissenting.
¶2I agree that the acquittal of the defendant in the District Court on the charge of violating G.S. 20-138 (a) did not preclude his prosecution on the charge of involuntary manslaughter which arose out of the same transaction.
¶3But I do not agree that in the trial on the charge of involuntary manslaughter the court could then use the violation of G.S. 20-138 (a) as the basis for the conviction of the defendant of involuntary manslaughter and to so instruct the jury. This is contrary to the basic principle underlying double jeopardy, res judicata, and collateral estoppel.
¶4In State v. Heitter, (Del. Sup. 1964), 203 A. 2d, 69, 9 A.L.R. 3d 195, the court held that the defendant’s acquittal by a justice of the peace of two statutory misdemeanors of reckless driving and driving while intoxicated was res judicata to a prosecution for manslaughter by a motor vehicle arising out of the same transaction as the two statutory misdemeanors, but that a manslaughter prosecution under the counts of the indictment charging the defendant with driving at an excessive and unsafe speed was not barred under the constitutional prohibition of double jeopardy.
¶5In the present case it is my opinion that the court could have properly used the violation of G.S. 20-138 (b) or other statutes as the basis for conviction of involuntary manslaughter, but not G.S. 20-138 (a) for which he was acquitted.