*337
Judgment reversed,.
The defendant was found guilty of voluntary manslaughter, with a recommendation to mercy. His motion for a new trial was overruled, and he excepted. The grounds of the motion material here are : After the jury had retired and had considered the case for about an hour and a half, they returned into court, and the foreman inquired whether it would be lawful for them to find the defendant “guilty of involuntary manslaughter in the commission of an unlawful act,” and what the penalty would be in that case. The court replied: “No, not in this case. I have not submitted any question of involuntary manslaughter to the jury. In the opinion of the count the case falls under one of these heads : murder, voluntary manslaughter, or not guilty ; for this reason I have not instructed the jury about involuntary manslaughter at all.” It is alleged that the court erred in not then and there instructing the jury upon the law of involuntary manslaughter, and that the statement thus made by the court was an expression of opinion upon the evidence and was a direction to the jury to return a verdict of murder or voluntary manslaughter. It is further alleged that the court erred in refusing to give to the jury the law of involuntary manslaughter, either in the original charge or when they returned into court and asked whether they could find a verdict of involuntary manslaughter in the commission of an unlawful act; in confining them to the consideration of three propositions: murder, voluntary manslaughter, and not guilty; in failing to submit to them the question whether the defendant was guilty of involuntary manslaughter, although the evidence was such as required the submission of that question, and the defendant’s counsel contended that it might be a case of involuntary manslaughter; and in refusing to charge sections 4327, 4328, 4329 of the code, although requested in writing so to do.
The refusal to charge as follows is assigned as error: “If the jury believe from the evidence that the defendant was not entirely justified under the law and evidence in the killing of the deceased, if he did kill him, and that he did not intend to kill the deceased, but did so in the commission of an unlawful act, or of a lawful act which probably might produce such consequences in unlawful manner, then the jury would not be authorized to find the defendant guilty of murder, or of' voluntary manslaughter, but they might find him guilty of involuntary manslaughter, either in the commission of a lawful act, as the evidence authorizes them to believe that the act was unlawful or lawful.”
The court chai’ged: “It becomes necessary in this case that I should instruct you upon the law of murder, voluntary manslaughter and justifiable homicide,” and then proceeded to define to the jury voluntary manslaughter and justifiable homicide, and to charge them upon these subjects, but wholly neglected to charge upon the subject of involuntary manslaughter; and this is assigned as error. The court also charged: “ If you do not think it is a case of murder, then see whether in your opinion this man is guilty of voluntary manslaughter; . . you ought also to inquire, of course, whether it is a case of justifiable homicide” ; but did not define the law of involuntary manslaughter and instruct the jury that they could find a verdict of involuntary manslaughter, and this is assigned as error.
Dessau & Bartlett and T. M. Hunt, for. plaintiff in error,
cited Code, §3248; Ga. Rep. 5—441; 10—110; *34015—223; 17—93; 22—76; 29—594; 31—424; 63— 693; 75—181; 76—474; 80—272; 88—297; 89—140; 2 Thomp. Tr. §2214 ; 1 Whar. Cr. L. §§381, 474-8; 1 Russ. Cr. 514, 582; 7 C. & P. 274, 32 E. C. L. R. 509; 1 East, P. C. 236 ; 2 Ld. Raym. 1498; 1 Id. 43 ; 1 Hale, 455 ; 1 Leach, 378 ; 12 Rep. 87.
W. H. Eelton, Jr., solicitor-general, contra,
cited Ga. Rep. 5—441; 10—102 ; 28—215 ; 17—200 ; 18—229 ; 22—83 ; 55—697; 58—212 ; 76—697 ; 3 Gr. Ev. §128.