However, where the defendant is guilty of driving while intoxicated and such conduct produces death, this conduct removes a consequent homicide from the definition of "negligent homicide," and renders a conviction for manslaughter in the first degree appropriate. Lomahaitewa v. State, 1978 OK CR 67, 581 P.2d 43; White v. State, 1971 OK CR 141, 483 P.2d 751; Ritchie v. Raines, 1962 OK CR 101, 374 P.2d 772.

We have recognized this exception ever since. See e.g. White v. State, 1971 OK CR 141, ¶ 11, 483 P.2d 751, 753;Lomahaitewa v. State, 1978 OK CR 67, ¶ 4, 581 P.2d 43, 44. Eventually, we extended the holding in Ritchie to another misdemeanor involving alcohol and motor vehicles: Driving While Impaired. Bell v. State, 2007 OK CR 43, ¶¶ 2–5, 172 P.3d 622, 623–24 (overruling State v. Breger, 1987 OK CR 98, 737 P.2d 1219). The petitioner in Ritchie ultimately pled guilty to Second Degree Manslaughter, but sought habeas corpus relief from this Court.

Compare Short v. State, 560 P.2d 219, 220-21 (Okla. Cr.App. 1977), with Lomahaitewa v. State, 581 P.2d 43, 44 (Okla. Cr.App. 1978). Tennessee's vehicular homicide statute does not preclude prosecution under other criminal statutes.

However, where the misdemeanor offense is driving while intoxicated, in violation of section 11–901 of Title 47, such conduct removes a consequent homicide from the definition of “negligent homicide” and renders a conviction for manslaughter in the first degree appropriate. Lomahaitewa v. State, 1978 OK CR 67, 581 P.2d 43;White v. State, 1971 OK CR 141, 483 P.2d 751;Ritchie v. Raines, 1997 [1962] OK CR 101, 374 P.2d 772. Proximate Cause.

However, where the defendant is guilty of driving while intoxicated and such conduct produces death, this conduct removes a consequent homicide from the definition of "negligent homicide," and renders a conviction for manslaughter in the first degree appropriate. Lomahaitewa v. State, 1978 OK CR 67, 581 P.2d 43 (Okl.Cr.1978);White v. State,1971 OK CR 141, 483 P.2d 751 (Okl.Cr.1971);Ritchie v. Raines, 1962 OK CR 101, 374 P.2d 772 (Okl.Cr.1962).

E.g., Driver v. State, 634 P.2d 760 (Okla. Cr. 1981). A defendant must present evidence that he or she was not eighteen years of age. Appellant did not and could not have presented such evidence. Further this Court has previously held that primary facts may be proven by records made by a public officer in the performance of official duty. Lomahaitewa v. State, 581 P.2d 43 (Okla. Cr. 1978). The arrest report provides competent evidence of age. The jury was also able to observe appellant and to have determined that he was an adult male over the age of eighteen.Alger v. State, 603 P.2d 1154 (Okla. Cr. 1979).

The defendant's first assignment of error is that 47 O.S. 1971 § 11-903[ 47-11-903], the vehicular or negligent homicide statute, repealed by implication the applicability of 21 O.S. 1971 § 711[ 21-711], the first degree manslaughter statute, in cases such as this one. The defendant acknowledges that this Court recently considered this same contention and rejected it. Lomahaitewa v. State, Okla. Cr. 581 P.2d 43 (1978). That case correctly reflects this Court's understanding of, and decision on, this issue, and we find the defendant's first assignment of error is without merit.