
    31245.
    LEE v. THE STATE.
    Decided September 10, 1946.
    
      
      Alton G. Liles, for plaintiff in error.
    
      Hope L). Starh, Solicitor-General, contra.
   Broyles, C. J.

(After stating the foregoing facts.) This is the second appearance here of this case. , In Lee v. State, 70 Ga. App. 61 (27 S. E. 2d, 347), where the accused was convicted of involuntary manslaughter in the commission of an unlawful act, this court held: "Under the evidence and the defendant’s statement to the jury, the offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection was also involved, and the court erred in failing to instruct the jury upon that branch of involuntary manslaughter.”

Upon the trial now under review, the court evidently charged upon that branch of involuntary manslaughter, since there was no special assignment of error in the motion for a new trial. The evidence and portions of the defendant’s statement to the jury authorized a finding that the defendant in "horse play,” and not knowing that the gun was loaded, intentionally pointed it at Smith, without any lawful reason therefor.

"Any person who shall intentionally point or aim a gun or pistol, whether loaded or unloaded, at another, not in a sham battle by the military, and riot in self-defense or in defense of habitation, property, or person, or other instances standing upon like footing of reason and justice, shall be guilty of a misdemeanor.” Code, § 26-5107.

The denial of a new trial was not error.

Judgment affirmed.

MacIntyre and Gardner, JJ., concur.  