dissent">GODFREY, Justice,

dissenting.

I believe that there is not sufficient evidence to support the jury's verdict and must respectfully dissent. Although the indictment alleged that the defendant was operating an automobile “at a dangerous and recklessly excessive speed” and that the vehicle’s braking devices were “in unsound order,” no evidence whatever was presented at trial supporting either of those allegations.

The Court cites no authority for the proposition that operation of an automobile with one mismatched tire or with a bald tire, or *1001both, involves a “gross deviation from the standard of conduct that a reasonable and prudent person would observe” within the meaning of the definition of “recklessness” in 17-A M.R.S.A. § 10(3). Defendant’s operation of his wife’s vehicle in that condition might properly have been found negligent for purposes of a civil action, but it cannot be justly characterized as reckless.

Defendant’s statement immediately after the accident that the accident had been his fault, though consistent with negligent operation of the vehicle, was not evidence of recklessness as defined in the Criminal Code.

There was testimony that the defendant’s automobile had partially crossed the center line shortly before the accident. Had there been any evidence that defendant was operating at excessive speed, the jury could have properly attributed his being over the line to a conscious disregard of the risk thereby created within the meaning of subsection (A) or (B) of section 10(3) of the Criminal Code. Here no such inference is permissible. Without any evidence that the defendant’s being partially over the center line was the result of his conscious disregard of a risk, within the meaning of section 10(3), the mere fact that he was over the line will not support a conviction for reckless homicide. See People v. Richardson, 21 Ill.App.3d 859, 316 N.E.2d 37 (1974).

I cannot agree that the jury was entitled to infer that the defendant acted recklessly from the fact that his wife did not testify at trial. The State could have called Mrs. Hanks as a witness;1 defendant could not have prevented his wife from testifying except as to confidential communications.2 The inference that the majority draws from from her non-appearance is not permissible, generally speaking, where the person in question is equally available to both parties. 2 Wigmore, Evidence § 288 (3d ed. 1940). Any inference that the jury might have drawn from the fact that the defense did not call Mrs. Hanks as a witness would have been pure speculation. Even if the dictum in State v. Silva, relied on by the majority, correctly states the law, its application here to defendant’s failure to call his wife as a witness can result, at most, only in impeachment of his credibility. It does not provide substantive evidence of his guilt. In the absence of any other testimony to support an inference of recklessness, the non-appearance of Mrs. Hanks may not be reasonably used to support the conviction.

The evidence presented at trial was insufficient, as a matter of law, to establish that the defendant recklessly caused the death of another human being. The appellant’s motion for an acquittal, seasonably made at trial, should have been granted. The judgment of conviction should be vacated and the defendant discharged.

. The record does not show whether Mrs. Hanks was present at the trial.

. Rule 502, M.R.Evid.

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