
    25317.
    BURKE v. THE STATE.
    Decided January 16, 1936.
    
      R. Earl Camp, for plaintiff in error.
    
      J. A. Merritt, solicitor-general, W. A. Dampier, contra.
   Broyles, C. J.

The defendant was convicted of involuntary manslaughter in the commission of an unlawful act. The evidence disclosed that he killed a pedestrian by running an automobile against him on a street in the City of Dublin, but it failed to show that he was committing an unlawful act at the time of the homicide. No ordinance of the city was introduced; and, therefore, this court is confined to a consideration of whether the evidence showed a violation of a penal statute. Several witnesses testified that the defendant at the time of the homicide was operating the car at a speed of 35 or 40 miles an hour, and one witness swore that the speed was “about 40 or 50 miles.” No witness testified affirmatively that the accused was operating the automobile at a speed greater than 40 miles an hour. The statute permits a speed of 40 miles per hour. The evidence failed to disclose that at the time of the homicide the defendant was in the commission of any unlawful act. The court erred in overruling the motion for a new trial based on the general grounds.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.  