
    46406.
    SUMMEROUR v. THE STATE.
    Submitted September 13, 1971
    Decided September 29, 1971.
    
      William Holley, for appellant.
    
      Ben F. Smith, District Attorney, for appellee.
   Jordan, Presiding Judge.

The defendant, tried for murder, appeals a conviction of voluntary manslaughter. His admitted and undisputed conduct discloses the commission of an act which would be a felony if the victim had lived, i.e., aggravated assault by shooting at another (Ga. L. 1968, pp. 1249, 1280; Code Ann. § 26-1302) unless legally excusable. Under these circumstances the trial judge properly treated the situation as one limited to murder, voluntary manslaughter, or excusable homicide, and did not err in failing to instruct the jury on involuntary manslaughter (Ga. L. 1968, pp. 1249, 1276; Code Ann. § 26-1103) as a lesser included offense. Tate v. State, 123 Ga. App. 18 (2) (179 SE2d 307); Teal v. State, 122 Ga. App. 532 (177 SE2d 840).

Judgment affirmed.

Quillian and Evans, JJ., concur.  