¶1 concurring. This case illustrates the undesirable situation that has resulted in the creation of a culpable mental state of negligence under the criminal laws of Ohio. Not only does the law make a person a criminal offender under situations where no morally blameworthy conduct was involved or where punishment will not deter socially disruptive behavior, but it also has created undefined and undefinable terminology which will, without doubt, result in highly discriminatory treatment of persons who commit essentially the same act. In some jurisdictions, negligent crimes will not be prosecuted due to either police or prosecutorial discretion, and in other jurisdictions juries will refuse to convict under identical factual patterns where prosecutions are brought and convictions are obtained in *247 other areas of Ohio. The negligent traffic manslaughter provisions formerly contained within the Revised Code were ample proof of this state of affairs, and even those prosecutions required the commission of an unlawful act, to wit, a traffic offense.
¶2 R. C. 2901.22, entitled “Culpable mental states,” contains a provision for criminal responsibility for reckless behavior, as follows:
“(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.”
¶3 Thereafter the negligent mental state is defined as follows:
“(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.”
¶4 The staff notes and the majority opinion indicate that negligent criminal conduct, when made a crime as in the instant case, involves something more than ordinary tort negligence and, obviously, something less than reckless conduct. The facts in this ease and the definitions cited do not bear out this analysis. Tort negligence consists of a failure to exercise due care, or a lapse from due care. That lapse may be a significant or substantial lapse, or it may be a minor lapse. In either event, if damages were proximately caused by the lapse, tort negligence results. A substantial lapse of due care, as defined in R. C. 2901.22 (D), merely defines a degree of tort negligence; i. e., tort negligence which is presumably more than the minimum, but clearly somewhere within the range of ordinary tort negligence, as it is something less than the next definable standard, reckless conduct.
¶5*248 The terminology itself is rather contradictory as substantial indicates ample or significant, and lapse indicates a small error. What is an ample, small error? That determination will frequently, if not always, involve after-the-fact circumstances. What did that ample, small error cause? The result is predictable — a completely unequal application of this standard and the criminal conviction of persons in situations where no intent was involved and there was no morally blameworthy conduct. Under the wrong set of circumstances almost anyone can become a criminal offender using this standard of culpable mental state. There is a great tendency to judge the substantiality of one’s lapse from care by the harm actually caused.
¶6 In this particular case, no one can quarrel with the proposition that a person should not horse around with a gun which may be loaded; yet, the harm caused was to a person close to the defendant, the juvenile defendant’s girl friend. It was unintended, and presumably came at the time that defendant was returning the gun to the desk drawer. Many unfortunate accidents happen through the careless and improvident use of firearms and these accidents are to be deplored. One could well argue that any lapse of due care involving a dangerous weapon is a substantial lapse. The standard provides no real answer to that question.
¶7 The true test of the equality of application of R. C. 2903.05 will be when a well-meaning citizen negligently permits a small child to gain access to a weapon and a death results, perhaps to his own child. That situation, in my opinion, constitutes a more substantial lapse of care, if lapse of care can be graded, than in the instant case. Will that grieving parent be convicted of negligent homicide?
¶8 After having said what I have, it is necessary to point out that the adoption of criminal laws and definitions of standards of culpable mental state are for the General Assembly, and it is the court’s function only to define the criminal laws as applied to the particular facts in question. There is sufficient evidence to indicate a substantial lapse from due care, and the trier of the facts so found. Consequently, the judgment must be affirmed.