Section 10967, Revised Codes, provides: "The homicide appearing to be justifiable or excusable, the person charged must, upon his trial, be fully acquitted and discharged." Criminal liability may not be predicated upon every act carelessly performed, merely because such carelessness results in the death of another; negligence, to become criminal, so as to afford the basis of a conviction for manslaughter, must be reckless or wanton and of such a character as to show an utter disregard of the safety of others under circumstances likely to cause injury. ( People v. Schneider, 360 Ill. 43, 195 N.E. 430; see Note 99 A.L.R. p. 829.) "Criminal negligence" constituting an important element of the crime of involuntary manslaughter is reckless conduct, or conduct evincing marked disregard for the safety of others or a dangerous act which has notable and apparent potentialities for resulting in death done without due care and circumspection. ( State v. Gutheil, (Utah), 98 P.2d 943; State v. Lingman, 97 Utah, 180, 91 P.2d 457; State v. Adamson, (Utah) 125 P.2d 429.)

To make negligent conduct culpable or criminal and make it manslaughter, the particular negligent conduct of the defendant must have been of such a reckless or wanton character as to indicate on his part, utter indifference to the life of another who is killed as a result thereof. Thus, only, may the criminal intent, so essential in a criminal prosecution properly be found by the Jury. ( State v. Melton, 326 Mo. 962, 33 S.W.2d 894; Reed v. Madden, 87 F.2d 851.)

"Want of care that will support conviction of involuntary manslaughter committed while performing a lawful act must at least equal gross negligence." ( People v. Hurley, 13 Cal.App. 208, 56 P.2d 978. The statute authorizing conviction of involuntary manslaughter where death of a party is caused by the accused without malice in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection, contemplates criminal negligence. ( State v. Sieneros, 42 N.M. 500, 82 P.2d 274; State v. McComb, (Wyo.) 239, P. 526.) Gross negligence must be proved, as well as the fact that the death of another was the direct result of the negligent act. (26 Am. Jur. sec. 215, p. 302.)

If this judgment is sustained, then any driver of an automobile who hits a pedestrian on a public street resulting in the death of the pedestrian, is guilty of the crime of manslaughter. This is not the law and should be not established as the law in this state by decision of this court.

It was incumbent on the state to introduce evidence to prove beyond a reasonable doubt that the defendant was guilty of criminal negligence. The state failed to do this. The motion of the defendant for a directed verdict should have been granted.

There is but one assignment of error, i.e., that the evidence is insufficient to justify a conviction of the crime charged and that the motion of defendant for a directed verdict should have been granted.

A reading of the transcript readily discloses evidence which is sufficient to justify a conviction of the crime charged. However, in determining this question, especially upon conflicting evidence, as in the case at bar, the court will no doubt observe the rule that the court will presume that such conflicts were resolved by the jury in favor of the state's witnesses as laid down in ( State v. Chevigny, 48 Mont. 382, 138 P. 257.) And again, this court has held that on an appeal from a conviction on conflicting evidence, the evidence of the state is considered as true. ( State v. Griffin, 77 Mont. 382, 251 P. 143.) In State v. McCarthy, 36 Mont. 226, 92 P. 521, it was held that: "The grant of a new trial for insufficiency of the evidence, or because the verdict is contrary to the evidence, being discretionary with the trial court, where the evidence is conflicting, its decision will not be disturbed." And in State v. Broadwater, 75 Mont. 350, 243 P. 587, it was held that on an application for a new trial, alleging evidence insufficient or verdict contrary thereto is addressed to the trial court, and grant or denial thereof will not be disturbed where the evidence is conflicting. Finally, it is the general rule that an application for a new trial for insufficiency of evidence is addressed to the sound discretion of the court, a denial of which will not be disturbed if the verdict is supported by substantial evidence. ( State v. Wilson, 76 Mont. 384, 247 P. 158; State v. Popa, 56 Mont. 587, 185 P. 1114; State v. Riggs, 61 Mont. 25, 201 P. 272; State v. Brantingham, 66 Mont. 1, 212 P. 499.) And a conviction on conflicting evidence will not be disturbed on appeal where there is sufficient evidence to sustain it. ( State v. Ford, 26 Mont. 1, 66 P. 293; State v. Conway, 38 Mont. 42, 98 P. 654; State v. Brodock, 53 Mont. 463, 104 P. 658.) The evidence proved the defendant guilty beyond a reasonable doubt and the judgment should be affirmed.

MR. JUSTICE ERICKSON delivered the opinion of the court

The defendant was convicted of manslaughter as a consequence of the death of Charles Jorgenson, who was run over by the defendant. The defendant has appealed.

The cause was tried upon the theory of involuntary manslaughter, and the only question we concern ourselves with on appeal is the sufficiency of the evidence to sustain that theory.

At about 10 o'clock on the night of November 15, 1941, the defendant, while driving his automobile across the intersection of Main Street and Central Avenue in the city of Cut Bank, struck a pedestrian, Charles Jorgenson, who was crossing the street and who, as a result of the injuries sustained, subsequently died. Defendant stopped his automobile before entering the intersection. It had been raining during the evening, but the testimony on the part of the state indicated that the visibility was good. The street lights were on. One witness on behalf of the state testified that the defendant's car started quickly after stopping at the intersection and that it quickly crossed the intersection. The automobile lights were on and the windshield wipers were working. The testimony is that at the moment of the impact defendant was traveling at a speed of approximately 15 miles per hour. He testified that he was looking straight ahead and watching the traffic on the main street, and there is no testimony to the contrary. He had not been drinking. His testimony is that he did not see the deceased before the automobile struck him. The brakes of the automobile were in good shape, and he applied them when he felt the impact, although there is testimony that the brakes were applied rather slowly. The automobile dragged the deceased for some 42 feet before the car was stopped. The defendant's testimony is that he got out and ascertained that the deceased had been struck and injured, and that as soon as the deceased was dragged from under the car and a doctor summoned, he (defendant) after requesting his wife to remain there, drove his car away as it was obstructing traffic.

The Montana statute (sec. 10959, Rev. Codes) defines involuntary manslaughter as follows: "The unlawful killing of a human being, without malice. It is of two kinds: * * * 2. Involuntary, in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection."

This court has never defined what is meant by the italicized [1, 2] portion above, that is, what degree of negligence is necessary to impose criminal responsibility. This question, however, is well settled in other jurisdictions. The general rule is stated in 26 Am. Jur., page 299, as follows: "The authorities are agreed, in the absence of statutory regulations denouncing certain acts as criminal, that in order to impose criminal liability for a homicide caused by negligence, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard for human life or an indifference to consequences."

When we apply this rule, we can find no evidence of criminal negligence of the character which has not the proper regard for human life. There is not such negligence as is contemplated by section 10959, supra. There is no evidence that at the time of the accident the defendant was not looking straight ahead where, in the exercise of due care, he should have been looking. In fact the only evidence on this point is the testimony of the defendant in which he states that he was looking where he was driving and saw nothing to indicate the presence of the deceased.

We must conclude that there is a failure of proof of the requisite criminal negligence to sustain the conviction. The judgment is reversed and the cause remanded with direction to dismiss the information.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR concur.