Mr. Justice McWilliams
delivered the opinion of the Court.
Daniels was charged with causing a death by operating a motor vehicle while under the influence of intoxicating liquor, as such offense is defined by C.R.S. 1963,' 40-2-10. More specifically, the charge was that Daniels caused the death of one Joseph L. Carter by operating a motor vehicle in a reckless, negligent and careless manner while under the influence of intoxicating liquor. To this charge Daniels pled not guilty, and a trial by jury ensued. The jury returned a verdict finding Daniels guilty as charged in the information, and he was thereupon duly sentenced to a term of from 2 to 4 years in the state penitentiary. By writ of error Daniels seeks reversal of this judgment and sentence.
Daniels’ only contention in this court is that the trial court allegedly committed error in refusing to instruct the jury on the crimes or offenses of involuntary manslaughter, driving while under the influence of intoxicating liquor, reckless driving and careless driving. In connection with such refusal, error is additionally predicated on the trial court’s further refusal to submit to the jury appropriate forms of verdicts concerning each of these various offenses. In support of this assignment of error Daniels asserts that involuntary manslaughter, driving while under the influence of intoxicating liquor, reckless driving and careless driving are all lesser of[193]*193fenses which are included in the crime of causing a death by operating a motor vehicle while under the influence of intoxicating liquor, as defined in C.R.S. 1963, 40-2-10, and that each and all of these lesser included offenses under the evidence should have been submitted to the jury by appropriate instruction and form of verdict. In this regard, the trial court declined to go along with Daniels’ request, and submitted to the jury only two forms of verdict, i.e., a “guilty” and a “not guilty” form of verdict as to the crime defined in C.R.S. 1963, 40-2-10. Hence, the sole issue before us on review is whether the trial court was correct in so doing, inasmuch as such is the only matter raised by Daniels in this court.
In People v. Futamata, 140 Colo. 233, 343 P.2d 1058, this court laid down the following test for determining whether a particular offense, though not charged, is nevertheless “included” in the offense which is charged: if the greater of two offenses, which is charged, “includes all of the legal and factual elements of the lesser,” then the greater includes the lesser; but if the lesser offense “requires the inclusion of some necessary element” which is not an essential and material element in the greater offense, then the lesser offense is not included in the greater offense. In other words, the greater offense' includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. In this connection it should be noted that the character of an offense is determined, not by the evidence which may be legally admissible under the charge, but by the evidence which is required to sustain the charge.
Comparing, then, the essential elements of involuntary manslaughter to those of the crime of causing a death while driving a motor vehicle under the influence of intoxicating liquor, as defined in C.R.S. 1963, 40-2-10, it becomes clear that involuntary manslaughter is not a lesser included offense in a charge brought [194]*194under C.R.S. 1963, 40-2-10. And the fact that the attorney general “confesses” error .in this particular is not dispositive of the matter. Such “confession of error” is based upon Goodell v. People, 137 Colo. 507, 327 P.2d 279, and for reasons which will be developed more fully, that case does not control the present controversy.
Involuntary manslaughter cannot be predicated upon so-called ordinary or simple negligence. Rather a material and essential element in a charge of involuntary manslaughter is wilful and wanton misconduct, sometimes referred to as gross or criminal negligence — and not mere negligence. See Bennett v. People, 155 Colo. 101, 392 P.2d 657; Bates v. People, 155 Colo. 87, 392 P.2d 596; and Trujillo v. People, 133 Colo. 186, 292 P.2d 980.
On the other hand, wilful and wanton misconduct, sometimes referred to as gross or criminal negligence, is not a necessary and material element in a prosecution under C.R.S. 1963, 40-2-10. Rather, a prosecution under C.R.S. 1963, 40-2-10 may be predicated on only negligent or careless driving, i.e., ordinary or simple negligence, as opposed to gross or criminal negligence. In other words, in this connection only negligent and careless driving is required to sustain the charge. See Espinosa v. People, 142 Colo. 96, 349 P.2d 689; Kallnbach v. People, 125 Colo. 144, 242 P.2d 222; and Rinehart v. People, 105 Colo. 123, 95 P.2d 10.
Recapitulating, then, gross or criminal negligence, i.e., wilful and wanton misconduct, is a necessary and material element in a charge of involuntary manslaughter, but such is not a necessary element in the crime defined in C.R.S. 1963, 40-2-10. Hence, the greater offense does not include all the legal and factual elements of the lesser, as the lesser offense requires the inclusion of an element which is not a necessary or material element in the greater offense. Such being the case, involuntary manslaughter is not a lesser included offense in a charge based on C.R.S. 1963, 40-2-10.
[195]*195The relationship between a charge brought under C.R.S. 1963, 40-2-10 and involuntary manslaughter is deemed analogous to the situation existing in those jurisdictions where the legislature has enacted a so-called negligent homicide law, i.e., death resulting from either the negligent or reckless operation of an automobile. In such jurisdictions it has been generally held that though there be a statute defining the common law crime of manslaughter, a subsequently enacted statute regarding negligent homicide defines a crime which is different and distinct from the crime of manslaughter and because they are different and distinct crimes a verdict of acquittal of negligent homicide was not inconsistent and did not legally preclude a conviction on a charge of manslaughter arising out of the same automobile accident. People v. Crow, 48 Cal. App.2d 666, 120 P.2d 686. See also People v. Amick, 20 Cal.2d 247, 125 P.2d 25.
In this same regard, see 22 C.J.S. pp. 770-772, where it is stated that the crimes of negligent homicide and manslaughter are different and distinct crimes, that the former is not included in the latter, and the two offenses are within the rule that the prosecution of one does not bar. the prosecution for the other. Finally, see People v. Garman, 411 Ill. 279, 103 N.E.2d 636,.
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Mr. Justice McWilliams
delivered the opinion of the Court.
Daniels was charged with causing a death by operating a motor vehicle while under the influence of intoxicating liquor, as such offense is defined by C.R.S. 1963,' 40-2-10. More specifically, the charge was that Daniels caused the death of one Joseph L. Carter by operating a motor vehicle in a reckless, negligent and careless manner while under the influence of intoxicating liquor. To this charge Daniels pled not guilty, and a trial by jury ensued. The jury returned a verdict finding Daniels guilty as charged in the information, and he was thereupon duly sentenced to a term of from 2 to 4 years in the state penitentiary. By writ of error Daniels seeks reversal of this judgment and sentence.
Daniels’ only contention in this court is that the trial court allegedly committed error in refusing to instruct the jury on the crimes or offenses of involuntary manslaughter, driving while under the influence of intoxicating liquor, reckless driving and careless driving. In connection with such refusal, error is additionally predicated on the trial court’s further refusal to submit to the jury appropriate forms of verdicts concerning each of these various offenses. In support of this assignment of error Daniels asserts that involuntary manslaughter, driving while under the influence of intoxicating liquor, reckless driving and careless driving are all lesser of[193]*193fenses which are included in the crime of causing a death by operating a motor vehicle while under the influence of intoxicating liquor, as defined in C.R.S. 1963, 40-2-10, and that each and all of these lesser included offenses under the evidence should have been submitted to the jury by appropriate instruction and form of verdict. In this regard, the trial court declined to go along with Daniels’ request, and submitted to the jury only two forms of verdict, i.e., a “guilty” and a “not guilty” form of verdict as to the crime defined in C.R.S. 1963, 40-2-10. Hence, the sole issue before us on review is whether the trial court was correct in so doing, inasmuch as such is the only matter raised by Daniels in this court.
In People v. Futamata, 140 Colo. 233, 343 P.2d 1058, this court laid down the following test for determining whether a particular offense, though not charged, is nevertheless “included” in the offense which is charged: if the greater of two offenses, which is charged, “includes all of the legal and factual elements of the lesser,” then the greater includes the lesser; but if the lesser offense “requires the inclusion of some necessary element” which is not an essential and material element in the greater offense, then the lesser offense is not included in the greater offense. In other words, the greater offense' includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. In this connection it should be noted that the character of an offense is determined, not by the evidence which may be legally admissible under the charge, but by the evidence which is required to sustain the charge.
Comparing, then, the essential elements of involuntary manslaughter to those of the crime of causing a death while driving a motor vehicle under the influence of intoxicating liquor, as defined in C.R.S. 1963, 40-2-10, it becomes clear that involuntary manslaughter is not a lesser included offense in a charge brought [194]*194under C.R.S. 1963, 40-2-10. And the fact that the attorney general “confesses” error .in this particular is not dispositive of the matter. Such “confession of error” is based upon Goodell v. People, 137 Colo. 507, 327 P.2d 279, and for reasons which will be developed more fully, that case does not control the present controversy.
Involuntary manslaughter cannot be predicated upon so-called ordinary or simple negligence. Rather a material and essential element in a charge of involuntary manslaughter is wilful and wanton misconduct, sometimes referred to as gross or criminal negligence — and not mere negligence. See Bennett v. People, 155 Colo. 101, 392 P.2d 657; Bates v. People, 155 Colo. 87, 392 P.2d 596; and Trujillo v. People, 133 Colo. 186, 292 P.2d 980.
On the other hand, wilful and wanton misconduct, sometimes referred to as gross or criminal negligence, is not a necessary and material element in a prosecution under C.R.S. 1963, 40-2-10. Rather, a prosecution under C.R.S. 1963, 40-2-10 may be predicated on only negligent or careless driving, i.e., ordinary or simple negligence, as opposed to gross or criminal negligence. In other words, in this connection only negligent and careless driving is required to sustain the charge. See Espinosa v. People, 142 Colo. 96, 349 P.2d 689; Kallnbach v. People, 125 Colo. 144, 242 P.2d 222; and Rinehart v. People, 105 Colo. 123, 95 P.2d 10.
Recapitulating, then, gross or criminal negligence, i.e., wilful and wanton misconduct, is a necessary and material element in a charge of involuntary manslaughter, but such is not a necessary element in the crime defined in C.R.S. 1963, 40-2-10. Hence, the greater offense does not include all the legal and factual elements of the lesser, as the lesser offense requires the inclusion of an element which is not a necessary or material element in the greater offense. Such being the case, involuntary manslaughter is not a lesser included offense in a charge based on C.R.S. 1963, 40-2-10.
[195]*195The relationship between a charge brought under C.R.S. 1963, 40-2-10 and involuntary manslaughter is deemed analogous to the situation existing in those jurisdictions where the legislature has enacted a so-called negligent homicide law, i.e., death resulting from either the negligent or reckless operation of an automobile. In such jurisdictions it has been generally held that though there be a statute defining the common law crime of manslaughter, a subsequently enacted statute regarding negligent homicide defines a crime which is different and distinct from the crime of manslaughter and because they are different and distinct crimes a verdict of acquittal of negligent homicide was not inconsistent and did not legally preclude a conviction on a charge of manslaughter arising out of the same automobile accident. People v. Crow, 48 Cal. App.2d 666, 120 P.2d 686. See also People v. Amick, 20 Cal.2d 247, 125 P.2d 25.
In this same regard, see 22 C.J.S. pp. 770-772, where it is stated that the crimes of negligent homicide and manslaughter are different and distinct crimes, that the former is not included in the latter, and the two offenses are within the rule that the prosecution of one does not bar. the prosecution for the other. Finally, see People v. Garman, 411 Ill. 279, 103 N.E.2d 636,. where the Supreme Court of Illinois held that even the crime of “reckless” homicide occasioned by the operation of a motor vehicle and the crime of manslaughter are separate and distinct offenses and said that “where the offenses, though arising from the same act, are separate and distinct in law, the defense of double jeopardy is not available regardless of how closely they are connected in point of fact.”
Daniels’ further contention that the trial court erred in also refusing to instruct the jury as to drunk driving, reckless driving and careless driving, and in connection therewith to submit appropriate forms of [196]*196verdict, on the theory that they too are lesser included offenses, is held to be without merit. It is conceded that there is some diversity of judicial thought as to whether the offenses of careless driving, reckless driving, drunken driving, and the like, are lesser included offenses in a crime such as that denounced in C.R.S. 1963, 40-2-10. We conclude that the majority rule is that such offenses are not so included. It should be observed that offenses such as careless driving, reckless driving and drunken driving were enacted for the purpose of regulating the movement of vehicular traffic on our streets and highways and that such are not concerned with the consequences flowing from, for example, drunken driving. In other words, when the general assembly in 1923 enacted into law that which now appears as C.R.S. 1963, 40-2-10, it was dealing with a specific problem, i.e., a homicide occasioned by the negligent operation of a motor vehicle by one who is under the influence of intoxicating liquor. No doubt at the time this particular statute was enacted, there were other statutes, as well as ordinances, denouncing drunk driving, reckless driving and careless driving. But this particular statute, i.e., C.R.S. 1963, 40-2-10, is not concerned with drunk driving, reckless driving, or even careless driving, as such. Rather this statute evidences a legislative concern 'for the result which flows from the reckless, negligent and careless operation of a motor vehicle by one who is under the influence of intoxicating liquor, the result being the death of a human being. In this regard, see e.g., State v. Empey, 65 Utah 609, 239 Pac. 25, where it was held that a conviction for driving a motor vehicle in a careless and reckless manner and when under the influence of liquor did not bar a subsequent prosecution for involuntary manslaughter for the reason that the offense of careless, reckless and drunken driving was complete before the ensuing collision which resulted in a death, and which latter event, i.e., the death, formed [197]*197the basis and gravamen for the manslaughter charge. In that case the Supreme Court of Utah said:
“The offense charged in the complaint on which defendant was tried in the justice court was complete before his automobile struck the automobile in which Miss Baker was riding. He necessarily would be guilty of the offense there charged, although he had not struck or touched the other automobile. The first offense cannot, therefore, be part of the second one, for which he was tried in the district court. The offense of driving an automobile on a highway in a careless and reckless manner, and at an excessive rate of speed, especially when under the influence of intoxicating liquor, was created for the very purpose of preventing collisions and consequent injury to others who may be on the highway. To the mind of the writer, it would be a travesty of justice to hold that because one is convicted of having driven his automobile on a public highway in a careless and reckless manner, while in a state of intoxication, that such a conviction is a bar to a charge of manslaughter which was the result of the carelessness and recklessness of the driver of the automobile.
“It would be just as reasonable to contend that a conviction for the offense of indulging in profane and abüsive language is a bar to a prosecution for an assault and battery, or a homicide, which may result from the use of profane and abusive language. The use of abusive language, which is calculated to provoke assaults or worse, was made an offense and punished for the sole purpose of preventing personal violence. The offense of the use of abusive language is, therefore, complete before any violence occurs, and when the latter occurs it may also be punished according to the gravity of the offense. So, here, the two offenses — careless and reckless driving and involuntary manslaughter — are as separate and distinct as day and night. Nor is it correct to say that because particular consequences may result from certain acts that such [198]*198acts, in contemplation of law, necessarily make :such consequences a part of such acts. Moreover, where certain acts are prohibited by law the prohibited acts may be punished as a separate and distinct offense, while'the consequences which may, and at times do, follow, but are not necessarily the result of such prohibited acts, may likewise be punished as a separate and distinct offense. In this case, therefore, the district court was clearly right in holding that neither the facts nor the offense charged in the information filed in that court were covered by, or included within, the acts and offense charged in the complaint filed in the justice court upon which the defendant was convicted and fined.”.
In like vein, see State v. Shoopman, 11 N.J. 333, 94 A.2d 493, where after citing with approval State v. Empey, supra, the Supreme Court of New Jersey, held that an acquittal on a charge of reckless driving did not bar a subsequent prosecution of the defendant on the charge of causing a death by reckless driving. Without belaboring the point, we now hold that neither careless driving, reckless driving nor drunk driving is a lesser included offense in the charge filed in the instant case against Daniels. In support of this conclusion see State v. Bacom, 159 Fla. 54, 30 So.2d 744, 172 A.L.R. 1050; Campbell v. State, 215 Ark. 785, 223 S.W.2d 505; People v. Herbert, 6 Cal.2d 541, 58 P.2d 909; 7 Am. Jur.2d pp. 889-890; 8 Blashfield Cyclopedia of Automobile Law and Practice, pp. 534-551; and 172 A.L.R. pp. 1053-1066.'
The judgment is affirmed.
Mr. Justice Day and Mr. Justice Frantz dissent.