Pearne

The defendant has been convicted of the crime of “involuntary manslaughter,” and appeals from the judgment. It is claimed that, while intoxicated, he drove his team of horses through the principal street of the town of Biggs, in a reckless manner, and at a great and unusual rate of speed. A feeble old woman selected this inopportune time to attempt a voyage across the street, with the result that she was run over by the driver and fatally injured. His indictment and conviction followed.

Section 192 of the Penal Code is as follows: “Manslaughter is the unlawful killing -of a human being without malice. It is of two kinds: 1. Voluntary—upon a sudden quarrel or heat of passion; 2. Involuntary—in the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”'

*157 The indictment changed that the defendant “did deliberately,, willfully, and unlawfully kill one Ellen Dogan.” The evidence indicated that the killing was not done deliberately and willfully, but accidentally and unintentionally, and the jury taking that view of the matter, in the light of the…