The Oklahoma Court of Criminal Appeals expressly approved this instruction in Harless v. State, 759 P.2d 225, 227 (Okl. Cr. 1988), holding that the trial court properly instructed the jury in a second degree manslaughter case by giving this instruction.

The Commission has departed somewhat from the statutory language defining the elements of manslaughter in the second degree in two respects. First, no Oklahoma cases have been found which illuminate the legislative intent in incorporating the language "act" and "procurement." The cases do indicate, however, that a mere "act" by the defendant will not sustain a conviction for manslaughter in the second degree; rather, the defendant's conduct must be such as to justify a finding of "culpable negligence." Frey v. State, 97 Okl. Cr. 410, 265 P.2d 502 (1954); Wilson v. State, 70 Okl. Cr. 262, 105 P.2d 789 (1940); Philby v. State, 64 Okl. Cr. 1, 76 P.2d 412 (1938); Nail v. State, 33 Okl. Cr. 100, 242 P. 270 (1926); Barker v. Territory, 25 Okl. 22, 78 P. 81 (1904). The terms "act" and "procurement" are therefore omitted from the instruction to obviate confusion.

Second, the statute requires that the conduct charged as criminal fall outside the statutory definitions of murder, manslaughter in the first degree, and excusable or justifiable homicide in order to warrant a conviction for manslaughter in the second degree. In a case where the defendant is charged with murder or first-degree manslaughter, the jurors will be instructed regarding the elements of those offenses where the evidence adduced so warrants, and the State must establish lack of legal justification beyond a reasonable doubt. In a case where the defendant is charged with second-degree manslaughter, the State must demonstrate the requisite culpable negligence and absence of legal justification beyond a reasonable doubt. Therefore, it is somewhat redundant and potentially confusing to inform the jury in the form of an instruction that it must eliminate all the listed statutory categories of offenses and defenses before it can return a finding of guilt to second-degree manslaughter. Instead, the jury is instructed that the death must be proved to be unlawful.

The definition of culpable negligence is that established by the Court of Criminal Appeals in Crossett v. State, 96 Okl. Cr. 209, 217, 252 P.2d 150, 159 (1952). Accord, Thompson v. State, 554 P.2d 105, 108 (Okl. Cr. 1976). Although the definition merely articulates the tort standard concerning duty of care, the cases evince a more pronounced degree of culpability where a conviction for manslaughter in the second degree is affirmed. Not only culpable negligence, but also a direct and proximate causal link between the defendant's conduct and the consequent death, must be established. Frey v. State, supra; Barrow v. State, 17 Okl. Cr. 340, 188 P. 351 (1920). The Oklahoma Court of Criminal Appeals has determined an instruction regarding manslaughter in the second degree to be warranted by the evidence adduced in a myriad circumstances. See, e.g., Dennis v. State, 556 P.2d 617 (Okl. Cr. 1976) (defendant fired rifle across a field at some animals while hunting; unwittingly struck deceased); Pritchett v. State, 79 Okl. Cr. 401, 155 P.2d 551 (1945) (defendant, who heard his dog barking and his chickens making a noise, but did not see or hear anyone, fired a rifle straight ahead to scare away whatever caused disturbance; struck deceased); Sweet v. State, 68 Okl. Cr. 44, 95 P.2d 242 (1939) (defendant and deceased scuffling over gun in automobile during course of a drunken brawl); Barrow v. State, 17 Okl. Cr. 340, 188 P. 351 (1920) (defendant, who held himself out as a physician, undertook to treat deceased's illness through feeding deceased hog-hoof tea and chanting incantations over deceased); but see Martley v. State, 519 P.2d 544 (Okl. Cr. 1974) (defendant not entitled to second-degree manslaughter instruction where he and deceased engaged in voluntary affray and defendant stabbed deceased).

Two points concerning the purview of section 716 must be established. First, enactment in 1961 of the statute defining negligent homicide with a vehicle, section 11-903 of Title 47, has been held to have repealed by implication the application of section 716 to cases wherein the defendant is prosecuted for homicide due to reckless operation of a vehicle. In Atchley v. State, 473 P.2d 286 (Okl. Cr. 1970), the defendant's conviction for manslaughter in the second degree arising from the negligent operation of an automobile was reversed. The court held:

Id. at 289. Accord, Thompson v. State, supra.

Second, by its literal terms, section 716 is inapplicable where the defendant performs an unlawful act which causes the death of the deceased. Under these circumstances, the defendant's conduct might constitute felony-murder or misdemeanor-manslaughter, both of which are excluded from the statutory definition of manslaughter in the second degree. In Miller v. State, 523 P.2d 1118 (Okl. Cr. 1974), the defendant and the deceased engaged in a drunken re-enactment of the "William Tell" saga. The defendant was convicted of manslaughter in the first degree and urged on appeal that his conduct evidenced culpable negligence, warranting an instruction on second-degree manslaughter. The court affirmed the refusal to give the requested instruction and noted that the existence of culpable negligence became relevant only where the defendant's conduct did not constitute an offense. Since the evidence overwhelmingly established that the defendant pointed a loaded pistol at the deceased, the defendant's culpable negligence coincided with his commission of a misdemeanor, thus precluding the applicability of section 716. See also Wratislaw v. State, 18 Okl. Cr. 150, 194 P. 273 (1921) (instruction on manslaughter in the second degree erroneous where homicide was committed with pistol); Lady v. State, 18 Okl. Cr. 59, 192 P. 699 (1920) (instruction regarding culpable negligence unwarranted where defendant committed misdemeanor of discharging firearm in a public place).