Opinion
No. 58598.
August 6, 1991.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, MELVYN W. WIESMAN, J.
Michael T. Cady, St. Louis, for appellant.
Robert McCullough, Pros. Atty., Karen Ann Murphy, Asst. Pros. Atty., Clayton, for respondent.
Defendant was charged with three counts of involuntary manslaughter in violation of § 565.024, RSMo 1986. At the conclusion of the jury-waived trial, the trial court found Defendant guilty of the lesser included offense of driving while intoxicated, and sentenced him to six months' imprisonment. Defendant asserts the offense of driving while intoxicated is not a lesser included offense of involuntary manslaughter as defined in § 565.024. We disagree and affirm.
Defendant relies heavily on the case of State v. Bextermueller, 643 S.W.2d 292 (Mo.App. 1982), for the proposition that driving while intoxicated is not a lesser included offense of involuntary manslaughter under § 565.024. However, Bextermueller was decided in 1982, and involved a different involuntary manslaughter statute.
An offense can be a lesser included offense of a higher offense either when its elements are necessarily included therein or when a statute specifically denominates it as such. State v. Williams, 678 S.W.2d 845, 847 [3-5] (Mo.App. 1984). The issue is whether the elements of § 577.010, the "driving while intoxicated" statute, are necessarily included in § 565.024.1(2). State v. Hogan, 748 S.W.2d 766, 769 [5, 6] (Mo.App. 1980).
565.024. Involuntary manslaughter, penalty
1. A person commits the crime of involuntary manslaughter if he: . . .
(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person.
2. Involuntary manslaughter is a class C felony
(Emphasis added).
577.010. Driving while intoxicated
1. A person commits the crime of `driving while intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition.
2. Driving while intoxicated is . . . a class B misdemeanor. . . .
(Emphasis added).
The State could not prove its case under § 565.024 without necessarily proving the driving while intoxicated charge under § 577.010.
Judgment affirmed.
GARY M. GAERTNER, P.J., and AHRENS, J., concur.