In this case the indictment charged manslaughter in two counts, viz.: (1) by culpable negligence in operating an automobile; (2) in operating an automobile while intoxicated. The jury found the defendant guilty on the second count. While the evidence tends strongly to sustain *Page 143 the charge of culpable negligence in the first count, the evidence does not prove that the defendant committed the unlawful act while intoxicated under the second count of the indictment. As the effect of the verdict is to acquit the defendant on the first count and as the evidence does not prove the charge stated in the second count of the indictment, the judgment should be and is reversed for a new trial on the second count of the indictment.
It is so ordered.
WHITFIELD, C.J., and TERRELL, BUFORD, and DAVIS, J.J., concur.
ELLIS, P.J., and BROWN, J., dissent.