Crossan

Appellant was operating an aeroplane, and while it was in the air its engine stopped, making it necessary for him to land. He came down in the surf at Venice, and as he landed the aeroplane struck and killed two young girls who were in bathing. Thereupon an indictment was found against him in two counts, each of which charged the killing of one of the girls as manslaughter. At the trial he was convicted on both counts, and now appeals from the judgments and from an order denying his motion for a new trial.

Appellant complains that the court wrongly instructed the jury as to the degree of negligence necessary to constitute a case of manslaughter. There was no proof that the operation of the aeroplane at the time and place in question was an unlawful act, or that appellant was operating it in an unlawful manner. The offense of which he was guilty, if any, was therefore involuntary manslaughter of the kind defined in subdivision 2 of section 192 of the Penal Code, as resulting from “the commission of a lawful act which might produce death, . . . without due caution and circumspection.”

The court gave the jury instructions defining manslaughter in the language of section 192, and…