
    12202.
    EASON v. THE STATE.
    Under the facts of the case the failure of the court to instruct the jury upon the law of involuntary manslaughter in the commission of a lawful act without due caution and circumspection was not, in the absence of a request for such an instruction, cause for a new trial.
    Decided April 13, 1921.
    Indictment for murder — conviction of involuntary manslaughter ; from Tattnall superior court ■ — ■ Judge Sheppard. January 1, 1921.
    
      Way & McCall, for plaintiff in error.
    
      J. Saxton Daniel, solicitor-general, contra.
   Broyles, C. J.

The defendant was charged with murder and convicted of involuntary manslaughter in the commission of an unlawful act. The evidence authorized a finding that the defendant was unlawfully pointing a rifle at the deceased when it accidently fired, killing the deceased. The defendant’s sole defense was that the killing was accidental, and in his statement he said he did not know the gun was loaded, and that it went- off accidentally, but he did not specifically deny that he had a gun pointed at the deceased when it fired. On the contrary, he admitted that a few minutes previous to the shooting he had “throwed” the gun towards the deceased* but that if he had known it was loaded he would not have been “pranking” with it. Furthermore, no witness in the case specifically testified that the defendant was not pointing the gun at the deceased when it fired. The-court fully and clearly instructed the jury upon the law of accident. Under these facts, the failure to charge upon the law of involuntary manslaughter in the commission of a lawful act without due caution and circumspection does not, in the absence of a request for such an instruction, require another trial of the case.

The verdict was amply authorized by the evidence, and it was not error to overrule the motjon for a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.  