2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 5 - Crimes Against the Person
Article 1 - Homicide
§ 16-5-3. Involuntary Manslaughter

Universal Citation: GA Code § 16-5-3 (2020)
  1. A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.
  2. A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor.

(Laws 1833, Cobb's 1851 Digest, p. 784; Code 1863, §§ 4224, 4225, 4226; Code 1868, §§ 4261, 4262, 4263; Code 1873, §§ 4327, 4328, 4329; Code 1882, §§ 4327, 4328, 4329; Penal Code 1895, §§ 67, 68, 69; Penal Code 1910, §§ 67, 68, 69; Code 1933, §§ 26-1009, 26-1010; Ga. L. 1951, p. 737, § 1; Code 1933, § 26-1103, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1984, p. 397, § 1.)

Law reviews.

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey on criminal law and procedure, 42 Mercer L. Rev. 141 (1990). For article, "New Challenges for the Georgia General Assembly: Survey of Child Endangerment Statutes," see 7 Ga. St. B. J. 8 (2001). For note discussing the felony-murder rule, and proposing legislation to place limitations on Georgia's felony-murder statute, see 9 Ga. St. B. J. 462 (1973).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Intent
  • Causation
  • Unlawful Act Involuntary Manslaughter
  • Lawful Act - Unlawful Manner Involuntary Manslaughter
  • Criminal Negligence
  • Indictment
  • Jury Instructions
  • Indictment
  • Application Generally

General Consideration

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code 1863, § 4222, former Code 1868, § 4258, former Code 1873, § 4327, former Code 1882, § 4327, former Penal Code 1895, §§ 65, 67, former Penal Code 1910, § 67, and former Code 1933, § 26-1009, as they read prior to revision of title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.

Former Code 1933, § 26-1103 was not unconstitutional for classifying improperly. State v. Edwards, 236 Ga. 104, 222 S.E.2d 385 (1976) (see O.C.G.A. § 16-5-3).

First element of the corpus delicti is that the person alleged to have been killed is actually dead. Vassy v. State, 166 Ga. App. 854, 305 S.E.2d 664 (1983).

Involuntary manslaughter requires intent to do act from which death results, but does not require intent to kill. Hardrick v. State, 96 Ga. App. 670, 101 S.E.2d 99 (1957) (decided under former Code 1933, § 26-1007).

There can be no involuntary manslaughter where intention is to kill. Jackson v. State, 69 Ga. App. 707, 26 S.E.2d 485 (1943) (decided under former Code 1933, § 26-1007).

When one voluntarily shoots at another and the shot kills, the homicide cannot be involuntary; and where, under no rational view of the facts, the killing can be involuntary homicide, judge should not confuse jury by charge on law concerning that offense. Harris v. State, 55 Ga. App. 189, 189 S.E. 680 (1937) (decided under former Code 1933, § 26-1007).

Everyone is presumed to intend natural, probable consequences of conduct, particularly if unlawful and dangerous to safety and lives of others. Jackson v. State, 204 Ga. 47, 48 S.E.2d 864 (1984) (decided under former Code 1933, § 26-1007).

Involuntary manslaughter is an unintentional homicide. Coggins v. State, 227 Ga. 426, 181 S.E.2d 47 (1971).

There are two types of involuntary manslaughter, both involving death of another human being without any intention to do so; former Code 1933, § 26-1103 concerned itself with type of involuntary manslaughter which was applicable only to those cases wherein death results by commission of unlawful act other than a felony. Ruff v. State, 150 Ga. App. 238, 257 S.E.2d 203 (1979) (see O.C.G.A. § 16-5-3(a)).

Involuntary manslaughter in the commission of a lawful act is a lesser included offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner. Maloof v. State, 139 Ga. App. 787, 229 S.E.2d 560 (1976).

Mislabeled count.

- Trial court erred in entering judgment and imposing a sentence on an allegedly mislabeled count under the guise that the jury found the defendant guilty of homicide by vehicle in the first degree instead of involuntary manslaughter when the jury specifically acquitted the defendant on another charge of homicide by vehicle in the first degree based upon the same act and against the same victim. Taylor v. State, 295 Ga. App. 689, 673 S.E.2d 7, aff'd, 286 Ga. 328, 687 S.E.2d 409 (2009).

Vehicular deaths have been excepted from other forms of involuntary manslaughter and established as misdemeanors except in cases of reckless driving or vehicular offenses connected with police vehicles. Berrian v. State, 139 Ga. App. 571, 228 S.E.2d 737 (1976).

Trial court did not err in failing to compel the state to prosecute the defendant under the involuntary manslaughter statute rather than the vehicular homicide statute for the General Assembly made a rational distinction between the two offenses. Williams v. State, 171 Ga. App. 546, 320 S.E.2d 389 (1984).

Cited in Byars v. State, 92 Ga. App. 511, 88 S.E.2d 818 (1955); Teal v. State, 122 Ga. App. 532, 177 S.E.2d 840 (1970); Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970); Tate v. State, 123 Ga. App. 18, 179 S.E.2d 307 (1970); Teasley v. State, 228 Ga. 107, 184 S.E.2d 179 (1971); Addison v. State, 124 Ga. App. 467, 184 S.E.2d 186 (1971); Summerour v. State, 124 Ga. App. 484, 184 S.E.2d 365 (1971); Witt v. State, 124 Ga. App. 535, 184 S.E.2d 517 (1971); Garrett v. State, 126 Ga. App. 83, 189 S.E.2d 860 (1972); Rowell v. State, 128 Ga. App. 138, 195 S.E.2d 790 (1973); Parks v. State, 230 Ga. 157, 195 S.E.2d 911 (1973); Owens v. State, 130 Ga. App. 25, 202 S.E.2d 211 (1973); Powell v. State, 130 Ga. App. 588, 203 S.E.2d 893 (1974); Elsasser v. State, 132 Ga. App. 868, 209 S.E.2d 686 (1974); Davis v. State, 233 Ga. 638, 212 S.E.2d 814 (1975); Barker v. State, 233 Ga. 781, 213 S.E.2d 624 (1975); Chappell v. State, 134 Ga. App. 375, 214 S.E.2d 392 (1975); Parks v. State, 234 Ga. 579, 216 S.E.2d 804 (1975); Jones v. State, 234 Ga. 648, 217 S.E.2d 597 (1975); Ray v. State, 235 Ga. 467, 219 S.E.2d 761 (1975); Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975); Whitley v. State, 137 Ga. App. 245, 223 S.E.2d 279 (1976); Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976); Jones v. State, 138 Ga. App. 828, 227 S.E.2d 519 (1976); Robertson v. State, 140 Ga. App. 506, 231 S.E.2d 367 (1976); Price v. State, 141 Ga. App. 335, 233 S.E.2d 462 (1977); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Hixson v. State, 239 Ga. 134, 236 S.E.2d 78 (1977); Prince v. State, 142 Ga. App. 734, 236 S.E.2d 918 (1977); Smith v. State, 142 Ga. App. 810, 237 S.E.2d 216 (1977); Buckner v. State, 239 Ga. 838, 239 S.E.2d 22 (1977); Braxton v. State, 240 Ga. 10, 239 S.E.2d 339 (1977); Maloof v. State, 145 Ga. App. 408, 243 S.E.2d 634 (1978); Reid v. State, 145 Ga. App. 302, 243 S.E.2d 700 (1978); Morrison v. State, 147 Ga. App. 410, 249 S.E.2d 131 (1978); Wilson v. State, 147 Ga. App. 560, 249 S.E.2d 361 (1978); Newsome v. State, 149 Ga. App. 415, 254 S.E.2d 381 (1979); State v. Allen, 243 Ga. 508, 256 S.E.2d 381 (1979); Cross v. State, 150 Ga. App. 206, 257 S.E.2d 330 (1979); Ballard v. State, 150 Ga. App. 704, 258 S.E.2d 331 (1979); Simpson v. State, 150 Ga. App. 84, 258 S.E.2d 634 (1979); Spradlin v. State, 151 Ga. App. 585, 260 S.E.2d 517 (1979); Futch v. State, 151 Ga. App. 519, 260 S.E.2d 520 (1979); Boling v. State, 244 Ga. 825, 262 S.E.2d 123 (1979); Phelps v. State, 245 Ga. 338, 265 S.E.2d 53 (1980); Arnett v. State, 245 Ga. 470, 265 S.E.2d 771 (1980); Dean v. State, 245 Ga. 503, 265 S.E.2d 805 (1980); Henderson v. State, 53 Ga. App. 801, 266 S.E.2d 522 (1980); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Horne v. State, 155 Ga. App. 851, 273 S.E.2d 193 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); Truitt v. State, 158 Ga. App. 337, 280 S.E.2d 384 (1981); Stewart v. State, 158 Ga. App. 378, 280 S.E.2d 403 (1981); Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981); Martin v. State, 159 Ga. App. 31, 282 S.E.2d 656 (1981); Nutt v. State, 159 Ga. App. 46, 282 S.E.2d 696 (1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981); Williams v. State, 249 Ga. 6, 287 S.E.2d 31 (1982); Billings v. State, 161 Ga. App. 500, 288 S.E.2d 622 (1982); Donaldson v. State, 249 Ga. 186, 289 S.E.2d 242 (1982); Anderson v. State, 249 Ga. 238, 290 S.E.2d 40 (1982); Green v. State, 249 Ga. 369, 290 S.E.2d 466 (1982); Perault v. State, 162 Ga. App. 294, 291 S.E.2d 122 (1982); Miller v. State, 162 Ga. App. 759, 292 S.E.2d 481 (1982); Washington v. State, 249 Ga. 728, 292 S.E.2d 836 (1982); Smith v. State, 249 Ga. 801, 294 S.E.2d 525 (1982); Stewart v. State, 163 Ga. App. 735, 295 S.E.2d 112 (1982); Williams v. State, 249 Ga. 822, 295 S.E.2d 293 (1982); Rucker v. State, 250 Ga. 371, 297 S.E.2d 481 (1982); McClain v. State, 165 Ga. App. 264, 299 S.E.2d 55 (1983); Dollar v. State, 168 Ga. App. 726, 310 S.E.2d 236 (1983); Ward v. State, 252 Ga. 85, 311 S.E.2d 449 (1984); Wilson v. State, 171 Ga. App. 120, 318 S.E.2d 705 (1984); Keller v. State, 253 Ga. 512, 322 S.E.2d 243 (1984); Boyd v. State, 253 Ga. 515, 322 S.E.2d 256 (1984); Bennett v. State, 254 Ga. 162, 326 S.E.2d 438 (1985); Buie v. State, 254 Ga. 167, 326 S.E.2d 458 (1985); Wigfall v. State, 257 Ga. 585, 361 S.E.2d 376 (1987); Laney v. State, 184 Ga. App. 463, 361 S.E.2d 841 (1987); Binns v. State, 258 Ga. 23, 364 S.E.2d 871 (1988); Griffin v. State, 199 Ga. App. 646, 405 S.E.2d 877 (1991); Dye v. State, 202 Ga. App. 31, 413 S.E.2d 500 (1991); Nelson v. State, 262 Ga. 763, 426 S.E.2d 357 (1993); Alexander v. State, 263 Ga. 474, 435 S.E.2d 187 (1993); Powell v. State, 228 Ga. App. 56, 491 S.E.2d 135 (1997); Walker v. State, 234 Ga. App. 295, 507 S.E.2d 15 (1998); Cox v. State, 243 Ga. App. 668, 533 S.E.2d 435 (2000); Vasser v. State, 273 Ga. 747, 545 S.E.2d 906 (2001); Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (2001); Reddick v. State, 264 Ga. App. 487, 591 S.E.2d 392 (2003), overruled on other grounds by State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); In the Interest of D. D., 335 Ga. App. 676, 782 S.E.2d 728 (2016); Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16 (2018); Parks v. State, 304 Ga. 313, 818 S.E.2d 502 (2018).

Intent

When doubt exists as to intention to kill, court should charge involuntary manslaughter.

- If there is any evidence to raise doubt, even though slight, as to intention to kill, court should give in charge the law of involuntary manslaughter, but if there is nothing to raise such a doubt, failure to charge on that subject will not require new trial. Warnack v. State, 3 Ga. App. 590, 60 S.E. 288 (1908), later appeal, 5 Ga. App. 816, 63 S.E. 935 (1909) (decided under former Penal Code 1895, §§ 65, 67) Warnack v. State, 7 Ga. App. 73, 66 S.E. 393 (1909), , Hilburn v. State, 57 Ga. App. 854, 197 S.E. 73 (1938);later appeal (decided under former Code 1933, § 26-1009).

Court should charge on both murder and manslaughter when there is doubt.

- When there is evidence sufficient to raise a doubt, however slight, whether offense is murder or manslaughter, voluntary or involuntary, court should instruct jury upon these grades of manslaughter as well as murder. Ivey v. State, 42 Ga. App. 357, 156 S.E. 290 (1930) (decided under former Penal Code 1910, § 65); Goldsmith v. State, 54 Ga. App. 268, 187 S.E. 694 (1936) (decided under former Code 1933, § 26-1007).

One intentionally shooting another in self-defense.

- Defendant who causes death of another person by intentional firing of gun, allegedly in self-defense, cannot then claim that the death was unintentional. Mullins v. State, 157 Ga. App. 204, 276 S.E.2d 877 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

It is not error to refuse a request to charge lawful act - unlawful manner - involuntary manslaughter when defendant asserts that he or she acted in self-defense by use of a pistol, rifle, or shotgun. One who causes death of another human being by use of a gun allegedly in self-defense will not be heard to assert that although he or she used excessive force, death was not intended and act was lawful. Farmer v. State, 246 Ga. 253, 271 S.E.2d 166 (1980).

It is not necessary to give request to charge law as to involuntary manslaughter, where defendant asserts that he or she fired a gun in self-defense. Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980); Colbert v. State, 250 Ga. 126, 296 S.E.2d 588 (1982).

One who causes death of another by use of gun, allegedly in self-defense, will not be heard to assert that, although he or she used excessive force, death was not intended and act was lawful. Appleby v. State, 247 Ga. 587, 278 S.E.2d 366 (1981).

Presumption of malice may arise from reckless disregard for human life.

- Wanton and reckless state of mind is sometimes equivalent of specific intent to kill, and such state of mind may be treated by jury as amounting to such intention when willful and intentional performance of an act is productive of violence resulting in destruction of human life. Biegun v. State, 206 Ga. 618, 58 S.E.2d 149 (1950) (decided under former Code 1933, § 26-1007).

Deadly character and manner in which weapon is used is not conclusive of intent to kill, but is only illustrative of such intent, and where from any circumstance there is doubt of accused's intention to kill, trial court must not exclude question of such intent from consideration of jury by failure to charge lesser offenses included in charge of murder, where from evidence and reasonable inferences to be drawn therefrom the jury would be authorized to find that no intention to kill existed. Jenkins v. State, 86 Ga. App. 800, 72 S.E.2d 541 (1952) (decided under former Code 1933, § 26-1007).

Deadly weapon may be used so as not to raise presumption of malice, but to leave intent as question of fact for jury. Thus, to strike one with barrel of a pistol, instead of shooting the victim with the weapon, or to strike with handle of a dirk, instead of with the blade, would not be the ordinary way of using such weapon to kill, and the intention to kill would be a question of fact rather than of presumption. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, § 26-1007).

Where gun is fired deliberately and death results, court may refuse to charge involuntary manslaughter. Benford v. State, 158 Ga. App. 43, 279 S.E.2d 236 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

Shooting victim nine times in back.

- Evidence showing victim had been shot nine times in back by defendant defies conclusion that there was no intention to cause death; such evidence authorizes jury to convict for murder or voluntary manslaughter, each of which requires intentional killing, or to acquit as self-defense, in which killing might or might be intentional, but simply does not support finding of unintentional killing. Hudson v. State, 146 Ga. App. 463, 246 S.E.2d 470 (1978).

When defendant admittedly intended to shoot close to victim.

- In murder prosecution, court did not err in refusing to charge on involuntary manslaughter after the defendant stated that the defendant had intended to shoot close to the victim, a 12-year-old boy who was leaning against defendant's car, but not to hit the boy. Moody v. State, 244 Ga. 247, 260 S.E.2d 11 (1979).

When seventy-five knife wounds were inflicted upon victim.

- Seventy-five knife wounds inflicted leaves no doubt on question of intent or voluntariness and failure of trial court to charge involuntary manslaughter was warranted. Anderson v. State, 248 Ga. 682, 285 S.E.2d 533 (1982).

Causation

Independent, intervening, unforeseeable cause of death.

- In every case of involuntary manslaughter, death must be due to unlawful act of defendant, and not to intervening act or negligence of a third person; or to an independent intervening cause in which defendant did not participate and which defendant could not foresee, and death must have been the natural and probable consequence of such unlawful act and the act the proximate cause. Fair v. State, 171 Ga. 112, 155 S.E. 329 (1930) (decided under former Penal Code 1910, § 65); Thomas v. State, 91 Ga. App. 382, 85 S.E.2d 644 (1955) (decided under former Code 1933, § 26-1007).

Wound leaving victim more susceptible to disease or other intervening agencies.

- When one commits a battery upon another, or inflicts a wound, which battery or wound is not likely in itself to produce death, but which renders the other person more susceptible to disease, or leaves the other person at mercy of elements or some other intervening agency, which brings about the person's death, the original wounding or battery of deceased is in a legal sense the cause of death. Wyrick v. State, 96 Ga. App. 847, 102 S.E.2d 53 (1958) (decided under former Code 1933, § 26-1007).

Death from combined effects of injury and disease attributed to former.

- If deceased was in feeble health and died from combined effects of injury and of disease, the person who inflicted injury is liable, although injury alone would not have been fatal. Wells v. State, 46 Ga. App. 412, 167 S.E. 709 (1933) (decided under former Penal Code 1910, § 65).

One inflicting injury which accelerates death from disease.

- If deceased was in feeble health and injury inflicted accelerated death from disease, even if disease itself would probably have been fatal, he who inflicted injury is liable, although injury alone would not have been fatal. Wells v. State, 46 Ga. App. 412, 167 S.E. 709 (1933).

Insufficient evidence for involuntary manslaughter conviction in death of inmate.

- Evidence was insufficient to convict the defendant, the supervisor for the medical department for the county sheriff's office, of involuntary manslaughter based on the death of the victim, an inmate who died while incarcerated, because the state did not show that the defendant's reckless conduct in failing to provide proper medical care and treatment for the victim's kidney disorder was the proximate cause of the victim's death as the prosecution did not present evidence showing that the defendant's reckless conduct played a substantial part in bringing about or actually causing the victim's death, and the state did not show that the victim's death was a direct or reasonably probable consequence of the defendant's actions or inactions. Evans v. State, 346 Ga. App. 739, 816 S.E.2d 843 (2018).

Death resulting from injuries sustained in escaping assault.

- When one perpetrates an assault upon another, and the other, in an effort to escape, runs into a place of danger, and there sustains injuries which result in death, in a legal sense, death resulted from assault, though such assault taken by itself would not likely have produced death. Wyrick v. State, 96 Ga. App. 847, 102 S.E.2d 53 (1958) (decided under former Code 1933, § 26-1007).

Unlawful Act Involuntary Manslaughter

Essential elements of involuntary manslaughter in commission of an unlawful act are, first, intentional commission of an unlawful act, and, second, killing of a human being without having so intended, but as proximate result of such intended act. Wells v. State, 44 Ga. App. 760, 162 S.E. 835 (1932) (decided under former Penal Code 1910, § 65); Passley v. State, 62 Ga. App. 88, 8 S.E.2d 131 (1940) (decided under former Code 1933, § 26-1007); Williams v. State, 96 Ga. App. 833, 101 S.E.2d 747 (1958) (decided under former Code 1933, § 26-1007); Thacker v. State, 103 Ga. App. 36, 117 S.E.2d 913 (1961) (decided under former Code 1933, § 26-1007); Bond v. State, 104 Ga. App. 627, 122 S.E.2d 310 (1961) (decided under former Code 1933, § 26-1007).

Essential elements of involuntary manslaughter in commission of unlawful act are, first, intent to commit unlawful act, and secondly, killing of human being without having so intended, but as proximate result of such intended unlawful act. Paulhill v. State, 229 Ga. 415, 191 S.E.2d 842 (1972).

An unlawful act within meaning of section is an act prohibited by law; that is to say, an act condemned by some statute or valid municipal ordinance of this state. Silver v. State, 13 Ga. App. 722, 79 S.E. 919 (1913) (decided under former Penal Code 1910, § 65); Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007); Walters v. State, 90 Ga. App. 360, 83 S.E.2d 48 (1954) (decided under former Code 1933, § 26-1007).

Unlawful act involuntary manslaughter can stem from acts malum prohibitum or acts malum in se. Silver v. State, 13 Ga. App. 722, 79 S.E. 919 (1913) (decided under former Penal Code 1910, § 65); Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007).

Involuntary manslaughter in commission of an unlawful act is not a reducible felony. Hardrick v. State, 96 Ga. App. 670, 101 S.E.2d 99 (1957) (decided under former Code 1933, § 26-1007).

To be entitled to a charge on involuntary manslaughter under O.C.G.A. § 16-5-3, the evidence had to support the conclusion that the killing resulted unintentionally from an unlawful act other than a felony. Oliver v. State, 274 Ga. 539, 554 S.E.2d 474 (2001).

In defining involuntary manslaughter, court should give rules.

- In defining involuntary manslaughter it is error for court to fail to give in charge to jury, even without request, rules of law applicable in determining what is an unlawful act. Pope v. State, 52 Ga. App. 411, 183 S.E. 630 (1936) (decided under former Code 1933, § 26-1007).

Unlawful act involuntary manslaughter requires intentional commission of unlawful act. Solomon v. State, 113 Ga. App. 116, 147 S.E.2d 467 (1966) (decided under former Code 1933, § 26-1007).

When involuntary manslaughter may be established by unlawful act committed unintentionally.

- Involuntary manslaughter may be proved by evidence showing that an unlawful act was committed unintentionally, but as a result of conduct so reckless that it imports a thoughtless disregard for consequences or indifference to safety to others and reasonable foresight that death or bodily harm will result. Solomon v. State, 113 Ga. App. 116, 147 S.E.2d 467 (1966) (decided under former Code 1933, § 26-1007).

Subsection (a) construed.

- O.C.G.A. § 16-5-3(a) is properly not charged when defendant's action would constitute a felony (assault with a deadly weapon). Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983); Smith v. State, 253 Ga. 476, 322 S.E.2d 58 (1984).

Not unlawful act of victim.

- Unlawful act referred to in statute was act of person committing manslaughter, not act of victim. McManus v. State, 130 Ga. App. 840, 204 S.E.2d 813 (1974).

Cause in fact of death.

- Statute requires that unlawful act be cause in fact of victim's death. Burns v. State, 240 Ga. 827, 242 S.E.2d 579 (1978).

Intentionally pointing a pistol at another in fun or otherwise.

- Intentionally to point a pistol or gun at another, not intending to shoot is unlawful, and if the weapon is accidentally discharged, the crime would be involuntary manslaughter. Leonard v. State, 133 Ga. 435, 66 S.E. 251 (1909) (decided under former Penal Code 1895, §§ 65, 67); Baker v. State, 12 Ga. App. 553, 77 S.E. 884 (1913) (decided under former Penal Code 1910, §§ 65, 67).

Intentionally to point a pistol at another, in fun or otherwise, save in instances excepted by statute, is unlawful; and if, while performing such unlawful act, the pistol is accidentally discharged, the person so acting, if not guilty of murder, would be guilty of involuntary manslaughter in commission of an unlawful act. Delegal v. State, 92 Ga. App. 744, 90 S.E.2d 32 (1955) (decided under former Code 1933, § 26-1007).

Evidence was sufficient to sustain defendant's conviction when testimony showed that the defendant, a minor, was unlawfully in possession of a handgun which defendant had cocked and recklessly pointed at another causing that person's death. Smith v. State, 234 Ga. App. 314, 506 S.E.2d 659 (1998).

Russian Roulette.

- Involuntary manslaughter conviction was supported by sufficient evidence after a witness saw the defendant pull a handgun from a pocket, pull the gun's handle back, and make a downward motion, after which the gun fired, injuring the victim, who died of the wound two days later; additionally, the defendant twice contacted the witness after the shooting and asked the witness to lie and implicate another person as the perpetrator, and admitted to an agent that the victim was shot during a game of "Russian Roulette." Kelly v. State, 277 Ga. App. 762, 627 S.E.2d 458 (2006).

Carrying of a concealed weapon was not an "unlawful act other than a felony" that justified a charge on felony involuntary manslaughter in a prosecution for voluntary manslaughter; the concealment, while unlawful, did not cause the death, defendant's firing of the gun did so. Carlton v. State, 224 Ga. App. 315, 480 S.E.2d 336 (1997).

Accidental discharge of pistol killing bystander.

- Assault upon officer, causing accidental discharge of the officer's pistol, thereby killing bystander constitutes involuntary manslaughter. Grey v. State, 126 Ga. App. 357, 190 S.E.2d 557 (1972).

Death of a child resulting from a negligent omission to comply with the parental duty stated in O.C.G.A. § 19-7-2 would amount to involuntary manslaughter by the commission of an unlawful act. Lewis v. State, 180 Ga. App. 369, 349 S.E.2d 257 (1986).

Lesser included offense of murder.

- Rational trier of fact could reasonably have found the defendant guilty beyond a reasonable doubt of murder. Under such circumstances, the jury was certainly authorized to find defendant guilty of felony-grade involuntary manslaughter as a lesser included offense. Thomas v. State, 183 Ga. App. 819, 360 S.E.2d 75 (1987).

In homicide trial, defendant's act was clearly felony of aggravated assault, not the misdemeanor of pointing a weapon at another, where the testimony showed that victim, as well as the three passengers in the victim's car, were aware of and understandably apprehensive of immediate violent injury, and defendant's own testimony ("I was showing the gun to him so he would leave me alone.") revealed that defendant's purpose in pointing the weapon was to place the victim in apprehension of immediate violent injury, and the request for a charge on misdemeanor manslaughter was properly denied. Rhodes v. State, 257 Ga. 368, 359 S.E.2d 670 (1987); Rameau v. State, 267 Ga. 261, 477 S.E.2d 118 (1996).

Because the unlawful use of a knife, a deadly weapon, while repeatedly stabbing the victim constituted the felony of aggravated assault, a charge on involuntary manslaughter would have been improper. Harris v. State, 257 Ga. 385, 359 S.E.2d 675 (1987).

Defendant was, at the very least, engaged in the commission of an aggravated assault when defendant pointed the gun at the victim and the gun fired, since aggravated assault is a felony, the trial court did not err by refusing to charge on felony involuntary manslaughter. Brooks v. State, 262 Ga. 187, 415 S.E.2d 903 (1992).

Driving under influence of whiskey on wrong side of road supports conviction of involuntary manslaughter in commission of unlawful act. Tillman v. State, 61 Ga. App. 724, 7 S.E.2d 285 (1940) (decided under former Code 1933, § 26-1007).

Intent to harm victim not inconsistent with conscious disregard of risk of harming another.

- Multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive; therefore, the jury's verdicts that the defendant, by shooting a gun in a parking lot and killing a bystander, was guilty of aggravated assault under O.C.G.A. § 16-5-21 and involuntary manslaughter predicated on reckless conduct, O.C.G.A. §§ 16-5-3(a) and16-5-60(b), were not inconsistent because the defendant could both commit assault with the intent to harm the victim and, at the same time, consciously disregard a substantial risk of harming another. State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015).

Underlying misdemeanor of reckless conduct.

- An indictment against a defendant is not defective where the felony of involuntary manslaughter is based on an underlying misdemeanor of reckless conduct. Turnipseed v. State, 186 Ga. App. 278, 367 S.E.2d 259 (1988).

Verdicts for aggravated assault and involuntary manslaughter/reckless conduct not inconsistent.

- Multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive; therefore, the jury's verdicts that the defendant, by shooting a gun in a parking lot and killing a bystander, was guilty of aggravated assault under O.C.G.A. § 16-5-21 and involuntary manslaughter predicated on reckless conduct, O.C.G.A. §§ 16-5-3(a) and16-5-60(b), were not inconsistent because the defendant could both commit assault with the intent to harm the victim and, at the same time, consciously disregard a substantial risk of harming another. State v. Springer, 297 Ga. 376, 774 S.E.2d 106 (2015).

Evidence insufficient.

- In a prosecution for malice murder, where the jury was not authorized by the evidence to find that the death occurred as a result of an unlawful act other than a felony, the trial court correctly refused to give a charge on involuntary manslaughter. Smith v. State, 267 Ga. 838, 483 S.E.2d 589 (1997).

Lawful Act - Unlawful Manner Involuntary Manslaughter

Essential elements of offense of involuntary manslaughter in commission of a lawful act, are: (1) killing of a human being; (2) without any intention to do so; (3) in commission of a lawful act; (4) which might probably produce death; and (5) in a manner not justified by law. Roughlin v. State, 17 Ga. App. 205, 86 S.E. 452 (1915) (decided under former Penal Code 1910, § 65).

In defining lawful act - unlawful manner involuntary manslaughter, it is best to address criminal negligence.

- In absence of timely written request for broader instruction, it is sufficient to define offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection in language of section, although it is better to charge that it must result from criminal negligence, which is something more than ordinary negligence which would authorize a recovery in a civil action. Jordan v. State, 103 Ga. App. 493, 120 S.E.2d 30 (1961) (decided under former Code 1933, § 26-1007).

To render lawful act carelessly performed, resulting in death criminal, carelessness must have been gross, implying indifference to consequences. Collins v. State, 66 Ga. App. 325, 18 S.E.2d 24 (1941) (decided under former Code 1933, § 26-1007).

Lawful act - unlawful manner involuntary manslaughter need not be charged absent request.

- There was no error in failing to charge on involuntary manslaughter by committing a lawful act in an unlawful manner where there was no request for such charge. Hart v. State, 157 Ga. App. 716, 278 S.E.2d 419 (1981).

Use of excessive force in self defense as involuntary manslaughter.

- Self-defense is a lawful act which can be performed in an unlawful manner should jury conclude that more force was utilized than necessary. Hodge v. State, 153 Ga. App. 553, 265 S.E.2d 878 (1980), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

When there is issue of excessive force in act of self-defense and denial of intent to kill, a jury is authorized to find that death was caused unintentionally by commission of a lawful act (self-defense) in an unlawful manner (use of excessive force). Mullins v. State, 157 Ga. App. 204, 276 S.E.2d 877 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

Provisions on involuntary manslaughter in the commission of a lawful act in an unlawful manner are applicable when evidence would authorize the jury to find that the defendant caused the death unintentionally while acting in self-defense but that defendant used excessive force. Facison v. State, 152 Ga. App. 645, 263 S.E.2d 523 (1979).

When force used exceeds that necessary for self-defense, the law will consider defender the aggressor and if the defender's act results in a homicide, the offense is at least manslaughter. Spradlin v. State, 151 Ga. App. 585, 260 S.E.2d 517 (1979), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

Clearly reckless conduct.

- Since the defendant's act of repeatedly striking a child over 100 times with a belt was so clearly reckless conduct that it could not qualify as a lawful act, the defendant was not entitled to a jury instruction on lawful act-unlawful manner involuntary manslaughter. Paul v. State, 274 Ga. 601, 555 S.E.2d 716 (2001), cert. denied, 537 U.S. 828, 123 S. Ct. 123, 154 L. Ed. 2d 41 (2002).

Involuntary manslaughter based on use of excessive force is inapplicable where defendant used gun.

- Although a defendant who uses a gun in self-defense is entitled to a charge on the law of self-defense, the defendant is not also entitled to the charge on the law of lawful act - unlawful manner involuntary manslaughter on the theory that force used was excessive. Appleby v. State, 247 Ga. 587, 278 S.E.2d 366 (1981).

One who causes death of another by deliberate use, as opposed to accidental discharge, of a gun, allegedly in self-defense, will not be heard to assert that, although he or she used excessive force, death was not intended and the act was lawful; since the deadly force of a gun is known to all, and it cannot be argued that the excessive force of a gun was unintentional. Benford v. State, 158 Ga. App. 43, 279 S.E.2d 236 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

It is unnecessary to give instruction as to involuntary manslaughter where defendant asserts that he or she fired gun in self-defense. Pass v. State, 160 Ga. App. 64, 286 S.E.2d 53 (1981).

Use of gun in self-defense in an unlawful manner constitutes crime of reckless conduct, under O.C.G.A. § 16-5-60, and thus is not a lawful act within meaning of O.C.G.A. § 16-5-3(b). Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980); Farmer v. State, 246 Ga. 253, 271 S.E.2d 166 (1980); Appleby v. State, 247 Ga. 587, 278 S.E.2d 366 (1981); Pass v. State, 160 Ga. App. 64, 286 S.E.2d 53 (1981).

Although excessive force by use of gun in self-defense will not authorize O.C.G.A. § 16-5-3(b) charge, excessive force by use of knife may; it can be error not to charge on O.C.G.A. § 16-5-3(b) if a knife was used in self-defense. Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983).

Effect of manslaughter conviction when charge requested and evidence supported murder conviction.

- When there is evidence which supports a verdict of guilty of the more serious offense of murder, and there is slight evidence of the lesser included offense of manslaughter, the appellant, who requested a charge on and was convicted of the lesser offense, may not successfully urge that the evidence was insufficient. Vick v. State, 166 Ga. App. 572, 305 S.E.2d 17 (1983).

Criminal Negligence

Element differentiating lowest grade of involuntary manslaughter from noncriminal killing is that in former, negligence must be more than ordinary negligence which would be sufficient to authorize recovery in civil action, and must go to extent of being gross or culpable negligence, whereas in latter there is absence of culpable negligence in performance of lawful act which resulted in death of human being. Collins v. State, 66 Ga. App. 325, 18 S.E.2d 24 (1941) (decided under former Code 1933, § 26-1007).

Mere negligent killing, without more, may not amount to murder. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936) (decided under former Code 1933, § 26-1007).

Negligence which will render unintentional homicide criminal is such carelessness or recklessness as is incompatible with a proper regard for human life. An act of omission, as well as commission, may be so criminal as to render death resulting therefrom manslaughter; but the omission must be one likely to cause death. Foy v. State, 40 Ga. App. 617, 150 S.E. 917 (1929) (decided under former Penal Code 1910, § 65).

Criminal negligence implies knowledge of willful or wanton disregard of probable effects.

- Criminal negligence necessarily implies not only knowledge of probable consequences which may result from use of a given instrumentality, but also willful or wanton disregard of probable effects of such instrumentality upon others likely to be affected thereby. Consequently, criminal negligence is not shown as against a defendant who uses every means in the defendant's power for the safety of those whom it is alleged defendant's negligence has affected. Foy v. State, 40 Ga. App. 617, 150 S.E. 917 (1929) (decided under former Penal Code 1910, § 65); Thomas v. State, 91 Ga. App. 382, 85 S.E.2d 644 (1955) (decided under former Code 1933, § 26-1007).

Criminal negligence must be such as shows an indifference to injurious results of negligent acts and must be inconsiderate of others. In order for one to be held to have been indifferent to the safety of others or inconsiderate of their welfare, it must appear that the person knew, or that an ordinarily prudent person under similar circumstances would have known, that the person's act would probably endanger others. It seems obvious that, for an act thus to appear dangerous, there must of necessity be some commonly recognized danger inherent in it. The instrumentality in connection with which there is negligence must be of a kind that is dangerous because of the manner in which it is handled. Geele v. State, 203 Ga. 369, 47 S.E.2d 283 (1948) (decided under former Code 1933, § 26-1007).

Negligence necessary to constitute crime is equivalent of and, in fact, is recklessness. Geele v. State, 203 Ga. 369, 47 S.E.2d 283 (1948) (decided under former Code 1933, § 26-1007).

Indictment

Indictment defective.

- State failed to allege that the defendant committed an unlawful act which under any circumstances could be the proximate cause of the unintentional death, thus the defendant's general demurrer should have been granted. Scraders v. State, 263 Ga. App. 754, 589 S.E.2d 315 (2003).

Jury Instructions

Charge should cover involuntary manslaughter where there is doubt as to intention.

- When evidence and statement, taken together or separately, raise doubt, although slight, as to intention to kill, law of involuntary manslaughter should be given in charge. Kerbo v. State, 230 Ga. 241, 196 S.E.2d 424 (1973).

Charge on involuntary manslaughter unwarranted where killing was intentional.

- Charge on involuntary manslaughter is not warranted where evidence establishes without conflict that killing was intentional rather than unintentional. Bullock v. State, 150 Ga. App. 824, 258 S.E.2d 610 (1979); Ward v. State, 151 Ga. App. 36, 258 S.E.2d 699 (1979); Ward v. State, 153 Ga. App. 743, 266 S.E.2d 556 (1980).

Because the defendant conceded that the defendant shot at the victims intentionally, albeit in self defense, a charge on the lesser offense of involuntary manslaughter, which requires a lack of intent, was not warranted. Harris v. State, 272 Ga. 455, 532 S.E.2d 76 (2000).

If jury authorized to find only intentional pointing of pistol, charge on involuntary manslaughter required.

- If from testimony jury would have been authorized to find only an intentional pointing of a pistol, a misdemeanor, justifying a conviction of involuntary manslaughter in commission of unlawful act other than a felony, it was error not to charge the jury on involuntary manslaughter. Kerbo v. State, 230 Ga. 241, 196 S.E.2d 424 (1973).

Charge on involuntary manslaughter not required when defendant testifies victim struck first blow.

- While charge of involuntary manslaughter in commission of unlawful act might be required if defendant were guilty of a simple assault, such a charge is not required when defendant testifies that victim struck first blow by knocking defendant down. McManus v. State, 130 Ga. App. 840, 204 S.E.2d 813 (1974).

Felonious involuntary manslaughter does not invoke felony-murder rule.

- Voluntary manslaughter, and felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke felony-murder rule as to death of main victim. Therefore, if jury finds felonious manslaughter, it should not go on to reason that this offense, being itself a felony, turns killing into a felony murder. The jury should be instructed in accordance with this principle. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).

Error in failure to charge on involuntary manslaughter.

- Given evidence at trial that the defendant, age 15, may have been "playing with" a gun near the back of the defendant's father's head when the defendant shot the defendant's father, the trial court erred in refusing the defendant's request for a charge on involuntary manslaughter as a lesser included offense of malice murder, not just as a lesser included offense of felony murder, and appellate counsel was ineffective in failing to make this argument. Seabolt v. Norris, 298 Ga. 583, 783 S.E.2d 913 (2016).

Felony or misdemeanor status, not jury consideration.

- Even though the jurors indicated they would not have voted defendant guilty of involuntary manslaughter had they known it was punishable as a felony, the legal status of the crime (felony or misdemeanor) and the resulting punishment when a guilty verdict is returned, is of absolutely no concern to the jury. The juror's testimony clearly showed correct application of law to facts, so even if the charge confused the jury and was thus error despite being a correct statement of the law, any such error was harmless. Howard v. State, 213 Ga. App. 542, 445 S.E.2d 532 (1994).

Jury instruction properly defining criminal negligence.

- Court did not err in charging that "if you find that the death of the child occurred as a result of negligent omission of the defendant, then this negligent omission would be involuntary manslaughter by an unlawful act," since the court charged that, in order for the accused to be found guilty of any crime, the jury must determine beyond a reasonable doubt that the alleged criminal act or omission was committed with criminal intent or criminal negligence, and properly defined criminal negligence as "reckless conduct such as shows an indifference to the injurious results of a negligent act, and indifference to the safety of others, and a lack of consideration for their welfare." Lewis v. State, 180 Ga. App. 369, 349 S.E.2d 257 (1986).

Charge on unlawful act involuntary manslaughter upheld where no reasonable view would support contrary finding.

- When the court did not instruct on involuntary manslaughter in the commission of a lawful act in an unlawful manner, a misdemeanor, but instructed only on involuntary manslaughter in the commission of an unlawful act, a felony, and no reasonable view of the evidence would have authorized a finding that the death resulted from the commission of a lawful act, the charge was not defective. Lewis v. State, 180 Ga. App. 369, 349 S.E.2d 257 (1986).

Instruction on involuntary manslaughter unwarranted.

- Because the state did not allege that the felony murder victim died as a result of non-felony conduct, but the victim's death occurred as a result of the defendant's commission of a felony in the course of fleeing and attempting to elude the police, an involuntary manslaughter instruction was not warranted. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).

When the defendant was charged with felony murder, with cruelty to a child in the first degree as the underlying felony, the trial court properly denied the defendant's request for a jury instruction on felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) as a lesser included offense. Contrary to the defendant's argument, the state did not present any evidence that the child died as a result of lack of medical care; furthermore, because the defendant argued that it was the child's parent who shook the child and that the defendant only tried to revive the child, such an instruction was not necessary because the evidence showed either the charged crime or no crime. Bostic v. State, 284 Ga. 864, 672 S.E.2d 630 (2009).

In a murder prosecution, as defendant claimed the defendant killed the victim in self-defense, the defendant was not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act under O.C.G.A. § 16-5-3(b) since if the defendant was justified in killing under the self-defense statute, O.C.G.A. § 16-3-21, the defendant was guilty of no crime at all; but if the defendant was not so justified, the homicide did not occur in the course of a lawful act. Hooper v. State, 284 Ga. 824, 672 S.E.2d 638 (2009).

With regard to a defendant's convictions for felony murder, with the underlying felony being rape, among other crimes, and although the defendant filed a written request for a jury charge on involuntary manslaughter, the defendant was not entitled to a jury charge on statutory rape as the defendant failed to specify statutory rape as the underlying misdemeanor. Further, the defendant was not entitled to such a jury charge as statutory rape was not a lesser included offense to forcible rape. Mangrum v. State, 285 Ga. 676, 681 S.E.2d 130 (2009).

Uncontroverted forensic evidence that a four-year-old homicide victim had suffered repeated blows to the head, approximately 15, consistent with those inflicted in boxing, did not warrant an instruction on involuntary manslaughter under O.C.G.A. § 16-5-3(a). This evidence was inconsistent with the commission of an unlawful act, such as battery or reckless conduct, other than a felony. Boyd v. State, 286 Ga. 166, 686 S.E.2d 109 (2009).

Trial court did not err in refusing to charge a jury on involuntary manslaughter under O.C.G.A. § 16-5-3(a) because the defendant shot the victim, the defendant's spouse, three times in the chest, thigh, and the back of the victim's left arm, and the arm wound was sustained while the victim was either lying prone on the floor or crawling on the victim's hands and knees. These injuries were inconsistent with the commission of an unlawful act other than a felony, and certainly not consistent with the defendant's claimed misdemeanor of reckless conduct. Hall v. State, 287 Ga. 755, 699 S.E.2d 321 (2010).

Trial court did not err by failing to give the defendant's requested charge on the lesser included offense of involuntary manslaughter, O.C.G.A. § 16-5-3, because the defendant's admitted act of purposefully putting a gun to the fearful victim's head and pulling the trigger constituted the felony offense of aggravated assault, O.C.G.A. § 16-5-21, not reckless conduct, O.C.G.A. § 16-5-60(b); the defendant's testimony that the victim began crying when the victim saw the gun provided evidence that the victim perceived the gun to be a loaded weapon that could be used to inflict a violent injury, which was a reasonable perception, and the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011).

Trial court did not err by refusing to charge the jury on involuntary manslaughter, O.C.G.A. § 16-5-3, because a charge on involuntary manslaughter was not generally allowed when the defendant alleged self-defense as the defendant did regarding the shots the defendant fired at the victim after the first shot, and under the facts, the defense of accident as to the first shot did not require such a charge; a charge on involuntary manslaughter in the commission of an unlawful act other than a felony was not required, given that the evidence relied upon by the defendant established either that the pistol discharged accidentally when the victim wrestled for the pistol's control or that the defendant intentionally fired the weapon. Davis v. State, 309 Ga. App. 831, 711 S.E.2d 324 (2011).

Trial court did not err by denying the defendant's request to charge the jury on involuntary manslaughter as a lesser included offense of the felony murder charge because the defendant's admitted act of purposefully firing a gun at the victim constituted the felony offense of aggravated assault, not reckless conduct; the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296 (2012).

In an action charging the defendant with felony murder while in the commission of aggravated battery, felony murder while in the commission of aggravated assault, felony murder while in the commission of cruelty to a child, two counts of aggravated battery, aggravated assault, cruelty to a child, and battery, the defendant was not entitled to a jury instruction on involuntary manslaughter as there was no evidence to find that the defendant committed the misdemeanor of reckless conduct or failure to seek medical care. Mathis v. State, 293 Ga. 35, 743 S.E.2d 393 (2013).

Evidence did not support a charge for involuntary manslaughter as the defendant's act of firing from the car clearly established the felony of aggravated assault and not mere reckless conduct. Browder v. State, 294 Ga. 188, 751 S.E.2d 354 (2013).

Trial counsel was not ineffective for failing to argue for involuntary manslaughter as a lesser included offense of murder, pursuant to O.C.G.A. § 16-5-3(a), because the jury would have had to believe that the use of a loaded gun to strike the victim was not used as a deadly weapon, and the theory of the defense was that the defendant was not present. Wells v. State, 295 Ga. 161, 758 S.E.2d 598 (2014).

Trial court did not err in denying the defendant's request to instruct the jury on involuntary manslaughter as a lesser included offense of malice murder as the evidence established either that the defendant intentionally shot and killed the victim or that the handgun discharged accidentally and, thus, there was no evidence to support such an instruction. Schmidt v. State, 297 Ga. 692, 778 S.E.2d 152 (2015).

To the extent that the evidence showed that the defendant and the shooter shared a criminal intent to commit an assault upon the first victim, the defendant was chargeable with the foreseeable acts undertaken by the shooter in the furtherance of that shared intent, even if the shooter did something or employed some instrument that the defendant subjectively did not expect; thus, when the shooter employed a deadly weapon to assault the first victim, the defendant was chargeable with the use of a deadly weapon. Accordingly, the defendant either was a party to felony murder and aggravated assault, or the defendant was guilty of no crime at all, and the trial court did not err when the court decided not to charge the jury on involuntary manslaughter. Cash v. State, 297 Ga. 859, 778 S.E.2d 785 (2015), cert. denied, 137 S. Ct. 137, 196 L. Ed. 2d 106 (U.S. 2016).

When the defendant was convicted of malice murder and cruelty to children arising out of the death of the 17-month-old victim, the defendant's request to charge on involuntary manslaughter by committing a lawful act in an unlawful manner based on the witnesses' testimony that the defendant told them that the defendant had been playing and throwing the victim on the bed before the defendant later discovered the victim in distress was properly denied because the undisputed evidence established that the victim's injuries could not have been sustained in the manner the defendant related, and the injuries were so severe that the injuries could only have been inflicted by something akin to a blow from a fist or a kick with tremendous force. Kellam v. State, 298 Ga. 520, 783 S.E.2d 117 (2016).

Appellant's conviction for murder was affirmed because the trial court did not err in refusing to give a requested jury charge on the lesser included offense of involuntary manslaughter as any error was harmless since the evidence showed that the appellant brought the gun along at the request of another, and the only witness who saw the fatal shots fired refuted that the shots were shot in the air, thus, the evidence did not support the lesser included offense charge. Reddick v. State, 301 Ga. 90, 799 S.E.2d 754 (2017).

In a felony murder and cruelty to a person age 65 or older case, trial counsel was not ineffective for failing to submit jury instructions on involuntary manslaughter and reckless conduct as counsel's theory of the case was that the victim's death was the result of an accident because there was no conclusive evidence that the defendant knew that the daycare van did not pick up the victim or that the daycare was closed; the defendant denied intentionally locking the victim out of the house; counsel's whole focus was on a not guilty strategy, and counsel sought to avoid admitting even to any negligent, much less reckless, intent; and counsel's decision to pursue an "all or nothing" defense did not fall below a reasonable standard of attorney conduct. Smith v. State, 301 Ga. 348, 801 S.E.2d 18 (2017).

Trial court did not plainly err in failing to instruct the jury on involuntary manslaughter based on reckless conduct as a lesser included offense of the murder charges because the defendant's possession of cocaine with intent to distribute, the defendant's aggravated assault of the victims as part of the defendant's effort to regain the drugs, and the defendant's possession of the gun as a convicted felon were themselves felonies; and to support a jury charge on involuntary manslaughter, the unlawful act underlying the unintentional death of the victim had to be an act other than a felony. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).

When the rightful owner of the parcel on which the defendant resided hired a tow truck company to enter the property to remove old vehicles parked on the parcel, and the defendant shot and killed one of the tow truck company employees, the trial court did not plainly err in refusing to give the defendant's requested charges on criminal negligence and on involuntary manslaughter as a lesser included offense of murder because, by finding the defendant guilty of malice murder, the jury found beyond a reasonable doubt that the defendant shot at the victim with malice aforethought; and the defendant did not show that the failure of the trial court to give the charges at issue likely affected the outcome of the trial. Reed v. State, 304 Ga. 400, 819 S.E.2d 44 (2018).

In a murder case, the trial court did not err when the court failed to give charges related to involuntary manslaughter because, according to the defendant's testimony at trial, the defendant intentionally pointed a gun at the victim's leg prior to the gun going off during a subsequent struggle with the victim; the record supported the crime of aggravated assault inasmuch as the defendant intentionally pointed a gun at the victim, eliminating any entitlement to charges of involuntary manslaughter and pointing a gun; and the defendant was not entitled to charges on involuntary manslaughter and reckless conduct since the defendant approached the victim with an intent to fight and intentionally pointed a gun at the victim. Overton v. State, 305 Ga. 597, 825 S.E.2d 159 (2019).

Trial court did not commit plain error by failing to sua sponte charge the jury on involuntary manslaughter because the defendant admitted that the defendant shot the victim intentionally, albeit in self-defense. Martin v. State, 306 Ga. 538, 832 S.E.2d 402 (2019).

Instruction on reckless conduct unwarranted.

- Trial court did not err by failing to include reckless conduct on the verdict form as a lesser-included offense of felony murder because a separate reckless conduct option was not required to be on the verdict form since there was no evidence of reckless conduct other than that which directly related to the death of the victim; thus, the reckless conduct charge had to be in the context of involuntary manslaughter. Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014).

Charge on involuntary manslaughter as lesser included offense.

- Habeas court properly granted relief to the inmate on the claim that appellate counsel was ineffective for failing to argue that the trial court erred by not giving a charge on involuntary manslaughter as a lesser included offense of malice murder based on the inmate's statement to police that the inmate did not know the gun was loaded when the inmate pointed the gun at the inmate's father and the fact that the evidence was not overwhelming. Seabolt v. Norris, Ga. , 782 S.E.2d 264 (2016).

In an action for felony murder and cruelty to children, the trial court erred by failing to charge the jury on the lesser included offense of involuntary manslaughter because there was some evidence that the defendant was guilty of the lesser offense, including that a nurse practitioner told the defendant the child needed to go to the emergency room and the defendant took the child to the emergency room but refused treatment due to financial concerns, allowing a jury to conclude that the defendant endangered the child. Castro-Moran v. State, Ga. App. , 845 S.E.2d 708 (2020).

Charge on O.C.G.A.

§ 16-5-3(b) unwarranted if killing results from unlawful act. - When killing decedent, even if unintended, was done as incident to unlawful, criminally negligent act of brandishing knife at others, failure to charge provisions of statute was not error. Keye v. State, 136 Ga. App. 707, 222 S.E.2d 172 (1975).

When firing pistol was not lawful, defendant is not entitled to charge of involuntary manslaughter. Truitt v. State, 156 Ga. App. 156, 274 S.E.2d 42 (1980).

Evidence adduced at trial did not reflect that defendant's use of a gun amounted to reckless conduct or any other misdemeanor, and although the trial court properly charged the jury on self-defense and accident, it did not err by refusing to charge the jury on involuntary manslaughter as a lesser included offense of murder. Brown v. State, 277 Ga. 53, 586 S.E.2d 323 (2003).

Requested jury instruction on involuntary manslaughter was properly denied because the defendant's conduct in producing and displaying a loaded revolver in close proximity to the defendant's victim, who allegedly was under the influence of drugs, and the victim's young child, with the defendant's finger inside the trigger guard while the defendant was watching the road and trying to drive, constituted the crime of crime of reckless conduct under O.C.G.A. § 16-5-60(b). Reed v. State, 279 Ga. 81, 610 S.E.2d 35 (2005).

In a trial for voluntary manslaughter, aggravated assault, and battery, it was not error to refuse to charge on the lesser included offense of involuntary manslaughter under O.C.G.A. § 16-5-3(a). Such a charge required an unlawful act that was not a felony, and the only such act supported by the evidence was the striking of the victim with a gun, which constituted the felony of aggravated assault under O.C.G.A. § 16-5-21. Moon v. State, 291 Ga. App. 499, 662 S.E.2d 283 (2008).

Charge where evidence authorizes finding of excessive force in self-defense.

- Trial court charged jury on law of self-defense and the evidence would have authorized the jury to find that defendant caused the death of another unintentionally while acting in self-defense, a lawful act, but that the defendant used excessive force, in an unlawful manner; the trial court erred in failing to charge the jury on involuntary manslaughter since the charge on self-defense left open the issue of application of involuntary manslaughter. Allen v. State, 147 Ga. App. 701, 250 S.E.2d 5 (1978).

Defendant is entitled to instruction on involuntary manslaughter when such instruction is timely requested and when there is evidence that homicide was caused by use of excessive force in self-defense. Jackson v. State, 143 Ga. App. 734, 240 S.E.2d 180 (1977), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

Charge on O.C.G.A.

§ 16-5-3(b) not required. - Evidence does not require a charge of involuntary manslaughter for the commission of a "lawful act" in an "unlawful manner," that is, self-defense (lawful act) with use of excessive force (unlawful manner), after the defendant confronted the victim with a hidden, extremely long knife, the deadly force of which is known to all. Fitzhugh v. State, 166 Ga. App. 320, 304 S.E.2d 127 (1983).

Defendant is not entitled to an instruction on involuntary manslaughter in a prosecution for felony-murder when the defendant bases the defense upon a claim of justification and the court charges the jury as to self defense and accident. Willis v. State, 258 Ga. 477, 371 S.E.2d 376 (1988); Lee v. State, 259 Ga. 230, 378 S.E.2d 855 (1989); Clark v. State, 271 Ga. 27, 518 S.E.2d 117 (1999).

Charge on O.C.G.A.

§ 16-5-3(b) unwarranted where aggravated assault committed. - When a person deliberately gets a gun and brandishes the gun at another in order to scare the other, thus committing an aggravated assault, such circumstances do not give rise to a charge on lawful act - unlawful manner involuntary manslaughter. Brown v. State, 166 Ga. App. 765, 305 S.E.2d 386 (1983).

Instruction on involuntary manslaughter unwarranted where self-defense asserted.

- Defendant was not entitled to an instruction on the law of involuntary manslaughter where defendant asserted that defendant was attacked by the victim and drew the gun and fired in self-defense. Smith v. State, 251 Ga. 229, 304 S.E.2d 716 (1983); Johnson v. State, 259 Ga. 235, 378 S.E.2d 859 (1989).

Defendant who seeks to justify homicide under the "self-defense" statute, O.C.G.A. § 16-3-21, is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, whatever the implement of death. For if defendant is justified in killing under O.C.G.A. § 16-3-21, defendant is guilty of no crime at all. If defendant is not so justified, the homicide does not fall within the "lawful act" predicate of O.C.G.A. § 16-5-3(b), for the jury, in rejecting defendant's claim of justification, has of necessity determined thereby that the act is not lawful. Saylors v. State, 251 Ga. 735, 309 S.E.2d 796 (1983); Moore v. State, 177 Ga. App. 569, 340 S.E.2d 222 (1986); Mims v. State, 180 Ga. App. 3, 348 S.E.2d 498 (1986); Stewart v. State, 182 Ga. App. 576, 356 S.E.2d 535 (1987); Thompson v. State, 257 Ga. 481, 361 S.E.2d 154 (1987); Kennedy v. State, 193 Ga. App. 784, 389 S.E.2d 350, cert. denied, 193 Ga. App. 910, 389 S.E.2d 350 (1989); Nobles v. State, 201 Ga. App. 483, 411 S.E.2d 294, cert. denied, 201 Ga. App. 904, 411 S.E.2d 294 (1991).

Defendant in a murder trial who argued that actions were lawful in defending self with an ax but did so in an unlawful manner, in that the force used was excessive, and who received a self-defense instruction, was not entitled to an additional charge on the lesser included offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner. Jordan v. State, 171 Ga. App. 558, 320 S.E.2d 395 (1984).

Trial court did not err in failing to charge on involuntary manslaughter in the course of a lawful act, where the defense was based upon self-defense, which was fully charged to the jury. King v. State, 177 Ga. App. 788, 341 S.E.2d 307 (1986).

Although the defendant who uses a gun in self-defense is entitled to a charge on the law of self-defense, that defendant is not also entitled to a charge on the law of lawful act-unlawful manner-involuntary manslaughter on the theory that the use of the gun was unnecessary (i.e., the force used was excessive). Pullin v. State, 257 Ga. 815, 364 S.E.2d 848 (1988); Reid v. State, 206 Ga. App. 367, 425 S.E.2d 315 (1992).

Charge on involuntary manslaughter is not required when the defendant asserts using a gun in self-defense. Lamon v. State, 260 Ga. 119, 390 S.E.2d 582 (1990).

Trial court acted properly in not giving the jury a requested instruction on involuntary manslaughter in the commission of a lawful act in an unlawful manner, pursuant to O.C.G.A. § 16-5-3(b), because defendant asserted self-defense in the fatal shooting of the victim and the jury was instructed on the issues of self-defense and accident. Mize v. State, 277 Ga. 148, 586 S.E.2d 648 (2003).

It was not error to fail to give an instruction on involuntary manslaughter when the defendant claimed that the killing of the victim was done in self-defense. Shipman v. State, 288 Ga. App. 134, 653 S.E.2d 383 (2007).

Charge on involuntary manslaughter was not authorized in a case in which the defendant alleged self-defense. Similarly, as to the defendant's claim of accident, a charge on involuntary manslaughter in the commission of a lawful act was not warranted because, under the definition of involuntary manslaughter in O.C.G.A. § 16-5-3(b), no crime would have occurred. Finley v. State, 286 Ga. 47, 685 S.E.2d 258 (2009).

Defendant's requested charge on misdemeanor involuntary manslaughter was not justified by the defendant's statement to police that the victim attacked the defendant and that the defendant accidentally strangled the victim in an attempt to restrain the victim because one who sought to justify homicide as having been committed in self-defense was not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner. Moore v. State, 325 Ga. App. 749, 754 S.E.2d 792 (2014).

Trial court did not err in refusing to give the defendant's requested charge on involuntary manslaughter because all the evidence presented showed that the defendant intentionally shot the victim, and by the defendant's account, no crime happened because the defendant was shooting in self-defense. Therefore, the crimes were either committed as charged or not committed at all, and there was no evidence that the defendant was committing a non-felonious unlawful act. Stepp-McCommons v. State, Ga. , 845 S.E.2d 643 (2020).

Instruction on involuntary manslaughter unwarranted when battered person syndrome asserted.

- Defendant who sought to justify killing a victim by battered person syndrome was not entitled to an additional instruction on involuntary manslaughter resulting from the commission of a lawful act in an unlawful manner under O.C.G.A. § 16-5-3(b) because if the act was justified, it was not a crime, and if not justified, it was not a lawful act. Demery v. State, 287 Ga. 805, 700 S.E.2d 373 (2010).

Failure to charge jury was not prejudicial.

- Failure to charge the jury on involuntary manslaughter in the commission of a lawful act was not so blatantly apparent and prejudicial that it raised a question whether defendant was deprived of a fair trial because of it, especially when the evidence adduced by the state authorized the jury to find beyond a reasonable doubt that defendant was guilty of voluntary manslaughter, the offense upon which the jury was instructed under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Chambers v. State, 205 Ga. App. 16, 421 S.E.2d 88, cert. denied, 205 Ga. App. 899, 421 S.E.2d 88 (1992).

Failure to charge on unlawful act involuntary manslaughter.

- While the trial court erred in rejecting the defendant's written request to charge the jury on unlawful act involuntary manslaughter, pursuant to O.C.G.A. § 16-5-3(a), as a lesser included offense of the crime of murder, the error was harmless because there was overwhelming evidence inconsistent with the defendant's version of events, but supportive of the jury's finding the defendant guilty of malice murder. Rogers v. State, 289 Ga. 675, 715 S.E.2d 68 (2011).

In the defendant's murder trial, even if failure to give a requested charge on involuntary manslaughter under O.C.G.A. § 16-5-3(a) based on the defendant's statement that the defendant shot into the air was error, it was harmless based on the testimony of multiple witnesses and the defendant's own statement to police that the victim was shot at close range by two people standing over the victim. Bonman v. State, 298 Ga. 839, 785 S.E.2d 288 (2016).

If state's evidence raises issue of manslaughter court should charge thereon, even without request.

- If jury can find from state's evidence that accused unintentionally killed deceased in commission of an unlawful act, or without due caution and circumspection during a lawful act resulting in culpable negligence, the state's evidence places lesser crime of manslaughter in the case and requires charge thereon without request. Drake v. State, 221 Ga. 347, 144 S.E.2d 519 (1965) (decided under former Code 1933, § 26-1007).

When act may or may not be lawful, both grades should be charged.

- When act from which death results may or may not be lawful under facts, both grades of law of involuntary manslaughter should be given in charge. Warnack v. State, 3 Ga. App. 590, 60 S.E. 288 (1908), later appeal, 5 Ga. App. 816, 63 S.E. 935; 7 Ga. App. 73, 66 S.E. 393 (1909) (decided under former Penal Code 1895, § 65).

Court may charge on both accident and involuntary manslaughter.

- Despite fact that defenses of accident and involuntary manslaughter may be inconsistent, since jury, upon finding presence of one, would be precluded from finding the other, a court may properly charge on both theories of law. Benford v. State, 158 Ga. App. 43, 279 S.E.2d 236 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

Charge on manslaughter not misleading when evidence authorizes finding of mistake.

- It is not misleading to charge on voluntary manslaughter in a case when the jury might be authorized to find that defendant shot deceased by mistake, intending to shoot a person making an assault on the defendant. Sinkfield v. State, 222 Ga. 51, 148 S.E.2d 409 (1966) (decided under former Code 1933, § 26-1009).

Failure to charge on manslaughter not erroneous.

- In a prosecution for felony murder, defendant's "catchall" request to charge on "murder, manslaughter, and aggravated assault," pursuant to the pattern charges "Part 4B (as applicable)" was not precisely adjusted to the principles of the case, and the failure to charge on manslaughter was not erroneous. Lane v. State, 268 Ga. 678, 492 S.E.2d 230 (1997).

There was sufficient evidence to convict a defendant of felony murder under O.C.G.A. § 16-5-1 based upon the actions of participating in the attack by hitting the victim with the bat even though the defendant did not actually shoot the victim; thus, instructions tracking O.C.G.A. § 16-5-21(a)(2) aggravated assault could properly be based on another perpetrator's use of a gun but the victim's acts of self-defense were not provocation that justified an O.C.G.A. § 16-5-3(a) involuntary manslaughter instruction. Ros v. State, 279 Ga. 604, 619 S.E.2d 644 (2005).

Trial court did not err in refusing to give the defendant's two requested jury charges on involuntary manslaughter because the defendant's own testimony that the gun the defendant was holding made contact with the victim, and when the gun did the defendant gave a push and told the victim to get back, revealed that the defendant's purpose in pointing the weapon was to place the victim in apprehension of immediate violent injury so that there was no basis for a charge on involuntary manslaughter. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829 (2011).

Court refusal to give misdemeanor grade involuntary manslaughter charge.

- It is not error to refuse to give a requested charge on misdemeanor grade involuntary manslaughter where the defendant asserts that he or she caused the death of another by the use of a gun in self-defense. Moore v. State, 251 Ga. 499, 307 S.E.2d 476 (1983).

In a prosecution for felony involuntary manslaughter, the trial court did not err in refusing the defendant's requested jury charge on unlawful-act involuntary manslaughter, because the jury considered the defendant's theories of self-defense and accident and rejected them, and evidence in opposition to these defenses showed that the defendant struck the victim with the barrel of the gun, which went off, killing the victim, and the evidence presumed that the defendant committed an aggravated assault under O.C.G.A. § 16-5-21(a)(2). Gore v. State, 272 Ga. App. 156, 611 S.E.2d 764 (2005).

Erroneous instructions regarding murder or voluntary manslaughter were harmless where conviction was of involuntary manslaughter. McGraw v. State, 85 Ga. App. 857, 70 S.E.2d 141 (1952) (decided under former Code 1933, § 26-1009).

To warrant instructions on involuntary manslaughter evidence must authorize determination that death occurred unintentionally from commission of unlawful act other than a felony, or from commission of lawful act in unlawful manner likely to produce death or great bodily harm. Hewitt v. State, 127 Ga. App. 180, 193 S.E.2d 47 (1972); Trask v. State, 132 Ga. App. 645, 208 S.E.2d 591 (1974); Henderson v. State, 153 Ga. App. 801, 266 S.E.2d 522 (1980).

Decision to charge on involuntary manslaughter is a fact question which must be decided on a case-by-case basis. Byrer v. State, 260 Ga. 484, 397 S.E.2d 120 (1990).

To warrant instruction on involuntary manslaughter, there must be evidence to authorize a determination that death occurred unintentionally from the commission of an unlawful act other than a felony. Byrer v. State, 260 Ga. 484, 397 S.E.2d 120 (1990).

Trial court's instruction on felony involuntary manslaughter as a lesser included offense of felony murder was not improper when there was evidence that the defendant intentionally pointed a gun at the victim in violation of O.C.G.A. § 16-11-102 just before the gun fired. Moore v. State, 286 Ga. App. 313, 649 S.E.2d 337 (2007).

Involuntary manslaughter should be charged, upon request, where there is "slight evidence" to support the charge. Richardson v. State, 250 Ga. 506, 299 S.E.2d 715 (1983).

Involuntary manslaughter charge warranted in arson prosecution.

- In a prosecution for felony murder and arson, the trial court erred in refusing to grant defendant's charge on involuntary manslaughter where despite defendant's concession that defendant intentionally set the fire, there was sufficient evidence from which the jury could conclude that the defendant set the fire without intending to burn down the motel building. Reinhardt v. State, 263 Ga. 113, 428 S.E.2d 333 (1993), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).

If evidence authorizes finding of involuntary manslaughter failure to charge thereon is error. Johnston v. State, 232 Ga. 268, 206 S.E.2d 468 (1974).

When there is evidence from which jury would be authorized to find accused guilty of involuntary manslaughter in commission of a lawful act without due caution and circumspection, it is error for judge to omit to instruct jury on law relating to that grade of manslaughter. Maloof v. State, 139 Ga. App. 787, 229 S.E.2d 560 (1976).

Charge on involuntary manslaughter unwarranted. See Lancaster v. State, 250 Ga. 871, 301 S.E.2d 882 (1983); Moses v. State, 264 Ga. 313, 444 S.E.2d 767 (1994); Smith v. State, 264 Ga. 857, 452 S.E.2d 494 (1995); Grano v. State, 265 Ga. 346, 455 S.E.2d 582 (1995); Brown v. State, 269 Ga. 67, 495 S.E.2d 289 (1998).

Trial court did not err in refusing to charge on involuntary manslaughter when the defendant offered no evidence concerning intent, whereas the state offered testimony that the defendant told the victim, while defendant was beating the victim, that defendant was going to kill her, and whereas several witnesses testified that the defendant told them after the beating that the victim deserved to die. Elliott v. State, 253 Ga. 417, 320 S.E.2d 361 (1984).

When an act that causes a death is a felony, a requested involuntary manslaughter charge is properly denied. Mayweather v. State, 254 Ga. 660, 333 S.E.2d 597 (1985); Rouse v. State, 265 Ga. 32, 453 S.E.2d 30 (1995); Smith v. State, 267 Ga. 502, 480 S.E.2d 838 (1997).

Requested charges on involuntary manslaughter, pointing a firearm at another, and simple assault, were properly refused, where defendant's testimony (that defendant fired shots with the intention of frightening a group) established as a matter of law the offense of aggravated assault, and the testimony that members of the group were frightened and dropped to the ground was inconsistent with the requested charges. Hawkins v. State, 260 Ga. 138, 390 S.E.2d 836 (1990).

Charge on involuntary manslaughter is not warranted, even if it is the sole defense, if the evidence does not support the charge. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991).

There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen's arrest, and, hence, defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which defendant was not licensed to carry, as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991).

Defendant, who confessed to intentionally setting defendant's son's bed on fire with the five year-old asleep in it was not entitled to a charge to the jury on involuntary manslaughter; arson was a felony, so involuntary manslaughter would not apply. Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004).

Because there was no evidence that the defendant was in lawful possession of the gun with which the victim was shot, there was nothing to support a jury charge on misdemeanor involuntary manslaughter as well as felony involuntary manslaughter as a lesser included offense of felony murder. Moore v. State, 286 Ga. App. 313, 649 S.E.2d 337 (2007).

Trial court did not err by refusing to charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner, O.C.G.A. § 16-5-3(b), as a lesser included offense of a felony murder charge based on the underlying offense of cruelty to children: the defendant had not requested such a charge in writing; moreover, the evidence, including the defendant's claim that the child's death was caused by an accidental fall while the defendant was playing with the child, did not warrant a charge on lawful act-unlawful manner involuntary manslaughter. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).

When evidence established either that defendant intentionally shot and killed the victim or that a pistol discharged accidentally and no offenses occurred, this showed either commission of felony murder and aggravated assault or commission of no offense, and the trial court did not err in refusing to give a lesser included offense charge on involuntary manslaughter based on reckless conduct. Lashley v. State, 283 Ga. 465, 660 S.E.2d 370 (2008).

Because a defendant was a convicted felon in possession of a firearm, a felony under O.C.G.A. § 16-11-131(b), the defendant was not entitled to a jury instruction on involuntary manslaughter under O.C.G.A. § 16-5-3(a), a killing resulting from an unlawful act other than a felony. Finley v. State, 286 Ga. 47, 685 S.E.2d 258 (2009).

Instructions on both voluntary manslaughter and involuntary manslaughter not warranted.

- In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as no evidence of provocation was presented and the evidence showed that the victim was killed during the defendant's effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007).

Court did not err in refusing to charge both kinds of involuntary manslaughter.

- See Eller v. State, 183 Ga. App. 724, 360 S.E.2d 53 (1987).

No improper sequential charge.

- When the trial court instructed the jury on the law of malice murder and felony murder, the offenses for which the defendant was indicted, and the included offense of involuntary manslaughter, the court did not give an improper sequential charge as involuntary manslaughter does not contain an element that mitigates a greater offense. McNeal v. State, 263 Ga. 397, 435 S.E.2d 47 (1993).

Failure to request charge not ineffective assistance when defense was alibi.

- In the defendant's trial for murder, felony murder, and voluntary manslaughter, arising out of the stabbing of a robber, the defendant's counsel was not ineffective in failing to request a jury instruction on involuntary manslaughter as a lesser included offense, O.C.G.A. § 16-5-3(a), because the defendant's defense was alibi: that the defendant was not at the scene but at a cookout. Woods v. State, 342 Ga. App. 301, 802 S.E.2d 822 (2017).

Jury charge on proximate cause.

- Because the instructions given by the trial court adequately expressed the requirement that the children's deaths and/or injuries had to have been the proximate result of the alleged criminal acts of involuntary manslaughter in the commission of reckless conduct and cruelty to children in the second degree, the trial court did not err in declining to give the defendant's additional requested instructions on proximate cause. Johnson v. State, 341 Ga. App. 425, 801 S.E.2d 294 (2017).

Incomplete charge.

- When the defendant requested a charge on involuntary manslaughter as a lesser included offense, but the request did not specify pointing a gun or pistol at another, it was not error to fail to charge on involuntary manslaughter while pointing a gun or pistol. Lashley v. State, 283 Ga. 465, 660 S.E.2d 370 (2008).

Jury instructions considered as whole to determine whether misleading.

- Although a portion of the trial court's main charge which states that "a person convicted under subsection (a) is guilty of a misdemeanor" is inappropriate, the trial court's instructions must be considered as a whole to determine whether they would mislead a jury of ordinary intelligence. Cooper v. State, 167 Ga. App. 440, 306 S.E.2d 709 (1983).

Indictment

Conviction for manslaughter upon indictment charging murder is proper, although there is no count for manslaughter in the indictment. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1009).

Involuntary manslaughter in commission of unlawful act is always included in indictment for murder.

- Indictment having been laid for murder and charging that mortal wound was inflicted by shooting deceased with a pistol and proof being that this was manner in which deceased was killed, a verdict of involuntary manslaughter would find support in the pleading, for reason that involuntary manslaughter is the unlawful killing of a human being and such crime is always included in an indictment for murder - that is, the indictment necessarily included within itself all essential ingredients of involuntary manslaughter in commission of an unlawful act. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1009).

When defendant's indictment charged that while committing possession of a firearm by a person under the age of 18 years, in violation of O.C.G.A. § 16-11-32, defendant caused a victim's death without any intention to do so, the indictment was fatally defective because it was not sufficient to allege that the unintentional death was caused solely by defendant's possession of the firearm, as the state did not allege an unlawful act which under any circumstances could be the proximate cause of the unintentional death. Scraders v. State, 263 Ga. App. 754, 589 S.E.2d 315 (2003).

Application Generally

Application of rule of lenity.

- Defendant was not entitled to be sentenced under the rule of lenity for misdemeanor involuntary manslaughter under O.C.G.A. § 16-5-3(b) rather than felony involuntary manslaughter under O.C.G.A. § 16-5-3(a), although the defendant was convicted of both crimes, because the two crimes did not address the same criminal conduct and no ambiguity was created by different punishments being set forth for the same crime. Campbell v. State, 297 Ga. App. 387, 677 S.E.2d 312 (2009), cert. denied, No. S09C1263, 2009 Ga. LEXIS 411 (Ga. 2009).

Former Penal Code 1895, § 65 (now O.C.G.A. § 16-5-3) made no exception in case of convicts but included all persons. Westbrook v. State, 133 Ga. 578, 66 S.E. 788, 25 L.R.A. (n.s.) 591, 18 Ann. Cas. 295 (1909) (decided under former Penal Code 1895, § 65).

Convictions for involuntary manslaughter and cruelty to children were not inconsistent because the jury could have found from the evidence both that the defendant maliciously caused the victim excessive pain, and that defendant's actions caused the victim's death, though defendant may not have intended to kill the victim. Sanders v. State, 245 Ga. App. 561, 538 S.E.2d 470 (2000).

Verdict of involuntary manslaughter will be referred to highest grade of that offense, i.e., manslaughter in commission of an unlawful act, unless jury specifies otherwise. Bulloch v. State, 10 Ga. 47, 54 Am. Dec. 369 (1851) (decided under prior law); Wright v. State, 78 Ga. 192, 2 S.E. 693 (1886) (decided under former Code 1882, § 4324); Thomas v. State, 121 Ga. 331, 49 S.E. 273 (1904) (decided under former Penal Code 1895, § 65); Register v. State, 10 Ga. App. 623, 74 S.E. 429, later appeal, 12 Ga. App. 1, 76 S.E. 649 (1912), later appeal, 12 Ga. App. 688, 78 S.E. 142 (1913) (decided under former Penal Code 1910, § 65).

Murder and manslaughter are different grades of offense of unlawful homicide. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007).

On trial for manslaughter, evidence of previous threats or declarations by accused is inadmissible. Hicks v. State, 55 Ga. App. 149, 189 S.E. 373 (1937) (decided under former Code 1933, § 26-1007).

Erroneous exclusion of testimony negating malice was harmless.

- When in a murder trial, the jury returns a verdict of guilty of involuntary manslaughter in commission of an unlawful act without an intent to kill, such verdict is equivalent of finding the defendant not guilty of murder and thus there was no malice, and also acquitted the defendant of voluntary manslaughter and thus found there was no intention to kill the deceased; hence, ruling out of certain testimony which the defense hoped would negative intent or malice, if error, was harmless because the jury found in the defendant's favor on issues the defendant was seeking to support by an answer which was ruled out. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, § 26-1007).

Unintended death caused by unlawful blow with nondeadly weapon constitutes involuntary manslaughter.

- If jury should find that weapon used was one which would not ordinarily produce death, and therefore was not a deadly weapon, and circumstances demonstrated to satisfaction of jury that there was no intention to kill, then, even though blow was not justified, accused would be guilty only of offense of involuntary manslaughter. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, § 26-1007).

Accidental discharge of gun.

- If the gun discharged accidentally, in the absence of criminal negligence, then no crime was committed and, as the jury was instructed, acquittal was required. Clark v. State, 265 Ga. 243, 454 S.E.2d 492 (1995).

Evidence supported a defendant's conviction for involuntary manslaughter as there was ample evidence that the state disproved the defendant's accident defense since: (1) the defendant was hurt by the fact that the defendant's significant other had begun a relationship with the victim; (2) the defendant threatened to blow the victim's and the significant other's heads off a few weeks before the shooting; (3) defendant testified that the victim was standing in the defendant's way, that the defendant was searching for a cell phone, and that the defendant pulled out several items, including a gun; (4) a door hit the defendant in the back, causing the gun to discharge into the victim's chest; (5) the defendant testified that the defendant was careless with the gun; and (6) a detective testified that after the detective Mirandized the defendant, the defendant stated that "(the defendant) put a shell in every chamber" and that "(the defendant) fired every shell, every round." Noble v. State, 282 Ga. App. 311, 638 S.E.2d 444 (2006).

Reckless handling of a gun may be basis of involuntary manslaughter. Pool v. State, 87 Ga. 526, 13 S.E. 556 (1891) (decided under former Code 1882, § 4324); Austin v. State, 110 Ga. 748, 36 S.E. 52, 78 Am. St. R. 134 (1900) (decided under former Penal Code 1895, § 67).

Evidence was sufficient to sustain the conviction because one witness testified that the defendant shot the victim without provocation, and the defendant struck the victim with the barrel of a gun which went off, killing the victim, after the defendant had gone to the victim's apartment to settle a debt. Gore v. State, 272 Ga. App. 156, 611 S.E.2d 764 (2005).

Shooting, believing gun to be unloaded, constitutes involuntary manslaughter. Irvin v. State, 9 Ga. App. 865, 72 S.E. 440 (1911) (decided under former Penal Code 1910, § 65).

Killing to prevent escape of prisoner arrested without warrant.

- An officer killing to prevent escape of prisoner arrested without warrant is at least guilty of manslaughter in commission of an unlawful act. O'Conner v. State, 64 Ga. 125, 37 Am. R. 58 (1879) (decided under former Code 1873, § 4324).

When defendant admits act but denies intention to kill, former Code 1933, § 26-1103 deserves special scrutiny. Jackson v. State, 234 Ga. 549, 216 S.E.2d 834 (1975); Jackson v. State, 143 Ga. App. 734, 240 S.E.2d 180 (1977), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991) (see O.C.G.A. § 16-5-3).

Section inapplicable where, had victim survived, offense would have been a felony.

- If the victim had survived, defendant would have been guilty not merely of pointing a pistol at another but of aggravated battery, which itself is a felony, O.C.G.A. § 16-5-3(a) is inapplicable. Raines v. State, 247 Ga. 504, 277 S.E.2d 47 (1981).

Homicide resulting from assault constitutes involuntary manslaughter.

- Simple assault being a misdemeanor, an unintentional homicide proximately resulting from such unlawful act would amount to involuntary manslaughter and not murder. Norrell v. State, 116 Ga. App. 479, 157 S.E.2d 784 (1967) (decided under former Code 1933, § 26-1009).

When the defendant unlawfully commits an assault and battery upon the deceased, without any purpose or intention to kill, but thereby, during commission of such unlawful but not felonious act, inflicts a wound by reason of which the deceased dies, the defendant is guilty of involuntary manslaughter in the commission of an unlawful act. Jackson v. State, 69 Ga. App. 707, 26 S.E.2d 485 (1943) (decided under former Code 1933, § 26-1009).

Homicide occurring in commission of crime punishable by confinement in penitentiary cannot be involuntary manslaughter. Norrell v. State, 116 Ga. App. 479, 157 S.E.2d 784 (1967) (decided under former Code 1933, § 26-1009).

Homicide resulting from shooting at another constitutes murder.

- Under former Code 1933, § 26-1702 shooting at another was a crime punishable by confinement in the penitentiary, and therefore a homicide resulting from such unlawful act constituted the crime of murder. Norrell v. State, 116 Ga. App. 479, 157 S.E.2d 784 (1967) (decided under former Code 1933, § 26-1009) (see O.C.G.A. § 16-5-21).

Homicide resulting from aggravated assault.

- When appellant's admitted and undisputed conduct disclosed commission of an act which would be a felony if the victim had lived, i.e., aggravated assault by shooting at another unless legally excusable, a charge under O.C.G.A. § 16-5-3(a) was not authorized. Simmons v. State, 164 Ga. App. 643, 298 S.E.2d 313 (1982).

Merger with aggravated assault.

- Defendant's sufficiency challenge became moot on appeal as the trial court merged the involuntary manslaughter count into the aggravated assault count for sentencing purposes. Ramirez v. State, 288 Ga. App. 249, 653 S.E.2d 837 (2007).

Failure of defense counsel to make a written request for a charge on involuntary manslaughter did not deprive appellant of due process and the trial judge did not err in failing to give such a charge where the unlawful act engaged in by appellant was aggravated assault, a felony, and when there was no evidence of any lawful act committed by appellant when appellant caused the unarmed victim's death. Jester v. State, 250 Ga. 119, 296 S.E.2d 555 (1982).

Reckless conduct as lesser included offense of aggravated assault.

- Aggravated assault count of the indictment merged with the malice murder conviction, and the felony murder count, predicated in part on aggravated assault, was vacated by operation of law; thus, the claim of error that the trial court erred by refusing to charge the jury on reckless conduct as a lesser-included offense of aggravated assault was moot when the defendant was not convicted of aggravated assault. McCluskey v. State, 307 Ga. 740, 838 S.E.2d 270 (2020).

No merger with nonhomicide counts.

- Defendant's convictions of involuntary manslaughter while in the commission of a simple battery, aggravated assault, aggravated battery, cruelty to children, and reckless conduct were not mutually exclusive, and the trial court did not err in not merging the nonhomicide counts upon sentencing. Waits v. State, 282 Ga. 1, 644 S.E.2d 127 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

O.C.G.A. § 16-5-3 inapplicable when gun is used because a gun is a deadly weapon and assault with a deadly weapon constitutes aggravated assault, a felony. Pass v. State, 160 Ga. App. 64, 286 S.E.2d 53 (1981).

In cases involving intentional discharge of gun, charge on either subsection is not necessary. Strickland v. State, 250 Ga. 624, 300 S.E.2d 156 (1983).

Shooting another without provocation cannot constitute involuntary manslaughter. Fann v. State, 254 Ga. 514, 331 S.E.2d 547 (1985).

Evidence disclosing aggressive behavior of deceased and unintentional killing.

- Whenever the evidence discloses that the deceased displays aggression toward the defendant, unprovoked, and there is some evidence from which the jury could have found the killing was not intentional, a requested charge on involuntary manslaughter should be given. Hodge v. State, 153 Ga. App. 553, 265 S.E.2d 878 (1980), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).

Death caused by victim's loss of control during drag race.

- When indictment for involuntary manslaughter plainly alleges that it was loss of control by deceased in drag race, the deceased's own independent act, which caused death, and not any act on part of defendant, indictment fails to allege essential elements of offense of involuntary manslaughter. Thacker v. State, 103 Ga. App. 36, 117 S.E.2d 913 (1961) (decided under former Code 1933, § 26-1009).

This state does not have a reckless homicide statute; it has only voluntary and involuntary manslaughter statutes which create degrees of homicide less than murder. A history of punishing recklessly caused homicide as murder simply has nothing to do with deficiencies in felony-murder scheme because it provides no category of homicide less culpable than murder. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).

Jury instructions considered as whole to determine whether misleading.

- Although a portion of the trial court's main charge which states that "a person convicted under subsection (a) is guilty of a misdemeanor" is inappropriate, the trial court's instructions must be considered as a whole to determine whether they would mislead a jury of ordinary intelligence. Cooper v. State, 167 Ga. App. 440, 306 S.E.2d 709 (1983).

Evidence was sufficient to sustain defendant's conviction, when defendant, an apartment security guard, instructed another security guard to put a key in the lock on a door and, when the victim opened the door from the inside, defendant's gun immediately discharged, striking the victim in the chest and fatally wounding the victim. Cross v. State, 199 Ga. App. 266, 404 S.E.2d 633, cert. denied, 199 Ga. App. 905, 404 S.E.2d 633 (1991).

Evidence establishing that codefendants became intoxicated, and, in violation of order requiring them to get child care when they intended to drink, placed baby between them in bed, and that one codefendant rolled over onto baby, causing the baby's death, was sufficient to support involuntary manslaughter conviction. Bohannon v. State, 230 Ga. App. 829, 498 S.E.2d 316 (1998).

Establishment of the causal relationship between defendant's physical contact with son and the child's death by the testimony of a pediatrician and the medical examiner that the death resulted from "Shaken Baby Syndrome" was sufficient for conviction. Hill v. State, 243 Ga. App. 124, 532 S.E.2d 491 (2000).

Evidence showed the defendant was guilty of felony murder under O.C.G.A. § 16-5-1 and involuntary manslaughter under O.C.G.A. § 16-5-3 after beating the defendant's child to death together with the defendant's love interest where the defendant's child was struck at least 100 times and with such force that the fat beneath the child's skin was emulsified, entered broken capillaries, and clogged the vessels leading to the child's lungs. Marshall v. State, 276 Ga. 854, 583 S.E.2d 884 (2003).

Evidence was sufficient to allow a rational trier of fact to have found beyond a reasonable doubt that the defendant committed involuntary manslaughter by causing the victim's death, without any intention to do so, by the commission of the unlawful act of simple battery. Jones v. State, 265 Ga. App. 97, 592 S.E.2d 888 (2004).

Sufficient evidence supported two defendants' convictions for involuntary manslaughter; evidence that both defendants purposefully involved the shooter in their confrontation with the victim, knew the shooter was armed with a rifle, and assisted the shooter in pursuing the victim, was sufficient to enable a rational trier of fact to find both defendants guilty beyond a reasonable doubt as parties to the shooter's crimes or any lesser included offenses. Morris v. State, 276 Ga. App. 775, 624 S.E.2d 281 (2005).

While the defendant and the codefendant insisted that their victim had a gun, no other witness saw the victim with a gun, and no such gun was found at the scene of the victim's shooting death; there was evidence that the defendant chased the victim as the victim ran away and shot the victim from behind, so the jury was entitled to reject the defendant's claims of self-defense and defense of another, and the evidence supported the defendant's convictions of voluntary manslaughter, O.C.G.A. § 16-5-3, and possession of a firearm during the commission of a crime, O.C.G.A. § 16-11-106. Windham v. State, 278 Ga. App. 663, 629 S.E.2d 837 (2006).

Defendant's involuntary manslaughter conviction was affirmed on appeal as: (1) the victim's statement was properly admitted, and not hearsay; (2) the Vienna Convention on Consular Affairs did not afford the defendant any relief; (3) a fireman was properly allowed to remain on the jury, despite previously working with law enforcement on many investigations and having a friendship with the chief assistant district attorney; (4) a reference to the defendant's immigration status did not warrant a mistrial; and (5) challenged portions of the state's argument were not improper. Banegas v. State, 283 Ga. App. 346, 641 S.E.2d 593 (2007).

Because sufficient direct and circumstantial evidence showed that the defendant, a prior felon wielding a weapon, engaged in a fight with the two victims, fatally wounding one and shooting the other in the arm, and thereafter fled from police, the defendant's convictions for involuntary manslaughter, reckless conduct, fleeing and eluding, and possession of a firearm by a convicted felon were upheld on appeal. Alvin v. State, 287 Ga. App. 350, 651 S.E.2d 489 (2007).

There was sufficient evidence to support a defendant's conviction for involuntary manslaughter of the defendant's romantic friend given the evidence of the defendant's admission that the defendant placed the friend in a headlock during a fight, and the medical examiner's findings that the friend was strangled to death. As a result, the jury was authorized to exclude all other reasonable hypotheses and conclude that the defendant unintentionally caused the friend's death while committing simple battery. Lemon v. State, 293 Ga. App. 488, 667 S.E.2d 654 (2008).

Sufficient evidence was presented to convict a defendant of felony involuntary manslaughter under O.C.G.A. § 16-5-3(a), possession of a knife during the commission of a crime, and misdemeanor involuntary manslaughter by causing the victim's death in the commission of a lawful act in an unlawful manner under O.C.G.A. § 16-5-3(b) because the defendant, who had been drinking, had been involved in an altercation with the victim over money, the victim jumped on the defendant's back and began hitting the defendant, and the victim subsequently died from a stab wound. Campbell v. State, 297 Ga. App. 387, 677 S.E.2d 312 (2009), cert. denied, No. S09C1263, 2009 Ga. LEXIS 411 (Ga. 2009).

Evidence that a defendant was the only person home with defendant's 17-month-old son when the son became unresponsive, along with the defendant's admission that the defendant had shaken defendant's son to make the son stop crying and shaken the son again to try to wake the son up was sufficient to support the defendant's convictions for involuntary manslaughter and child cruelty. Lewis v. State, 304 Ga. App. 831, 698 S.E.2d 365 (2010).

Evidence was sufficient to support defendant's conviction for felony involuntary manslaughter in violation of O.C.G.A. § 16-5-3(a) because several eyewitnesses testified that, following an argument with the victim, defendant, who had been drinking whiskey, drew a cocked and loaded handgun from defendant's jacket in another's residence, pointed the gun directly at the victim, and deliberately shot the victim at point blank range. In addition, the sheriff who responded to the scene testified that defendant said that defendant shot the victim after the victim had been running the victim's mouth. Snell v. State, 306 Ga. App. 651, 703 S.E.2d 93 (2010).

Evidence was sufficient to enable a rational trier of fact to find defendants guilty of involuntary manslaughter since both defendants repeatedly beat the defendants' eight-year-old son with a foot long glue stick, then forced the child into a wooden box, beating the boy about the head as the defendants did so, and when numerous medical experts testified that the cause of the child's death was either blunt force trauma or asphyxiation. Smith v. State, 288 Ga. 348, 703 S.E.2d 629 (2010), aff'd, 2020 U.S. App. LEXIS 3975 (11th Cir. Ga. 2020).

Evidence was sufficient to convict the defendant of, inter alia, four counts of felony murder, one count of involuntary manslaughter, and one count of aggravated assault in connection with the abuse and resulting death of the 18-month-old victim because a forensic child pathologist reviewed the findings of the victim's autopsy and opined that the pooling of blood on the front of the victim's body was consistent with the victim's belly being pressed against an object like the mattress or pad of a crib; and the defendant saw the boyfriend spank the children on the night of the victim's murder and watched as the boyfriend pushed the victim's face into the crib. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).

Evidence was sufficient to find the defendant guilty of two counts of involuntary manslaughter and one count of second degree cruelty to children as the defendant's actions were the proximate cause of the victims' deaths and injuries because a toppled space heater ignited a fire in the victims' bedroom, causing their injuries while the defendant was absent; the defendant knew that space heaters could cause fires; there was sufficient space in the boyfriend's vehicle to fit all four children; and, with the foregoing knowledge, the defendant left the defendant's three children completely unattended for an extended period of time in a combustibles-filled room, sleeping on a mattress that was placed directly on the floor next to a space heater. Johnson v. State, 341 Ga. App. 425, 801 S.E.2d 294 (2017).

Evidence sufficient to support conviction for involuntary manslaughter in commission of unlawful act.

- See Lewis v. State, 180 Ga. App. 369, 349 S.E.2d 257 (1986).

Involuntary manslaughter conviction based on methamphetamine.

- Evidence that the defendant was involved in loading capsules with methamphetamine, one of which the defendant knew contained more of the drug than the others, that the decedent acted strangely after consuming the capsule with more drug in it, that the decedent went off into the woods, and the defendant and others left the area where the decedent disappeared without looking for the decedent and seeking medical attention was sufficient to support the conviction for involuntary manslaughter. Ayers-Jones v. State, 350 Ga. App. 657, 829 S.E.2d 878 (2019).

Statement of deceased victim admitted.

- When the deceased victim was unavailable, statements the victim made which were relevant to show motive for the defendant's fatal act, made shortly before the victim's death to one to whom no reason to lie or to misrepresent existed, were properly admitted, and not hearsay; moreover, as the defendant was found guilty of involuntary manslaughter rather than murder, the admission of this testimony appeared to have been harmless. Banegas v. State, 283 Ga. App. 346, 641 S.E.2d 593 (2007).

Circumstantial evidence insufficient.

- Conviction for involuntary manslaughter under O.C.G.A. § 16-5-3(b) was reversed because the state failed to meet its burden of proof in a circumstantial evidence case; the evidence showed that a parent was caring for an infant, the defendant had no significant contact with the infant, the defendant had not harmed the infant in the past, and the defendant had no knowledge of the abuse. Edwards v. State, 272 Ga. App. 540, 612 S.E.2d 868 (2005).

Conforming verdict to pleadings and evidence.

- When the jury returns a verdict of "involuntary manslaughter," without specification, the trial court does no more than conform the verdict to the pleadings and the evidence when it asks the foreman to conform the verdict to the language of O.C.G.A. § 16-5-3(a), unlawful act involuntary manslaughter, when there is no evidence of lawful act - unlawful manner involuntary manslaughter. Brown v. State, 166 Ga. App. 765, 305 S.E.2d 386 (1983).

Mutually exclusive convictions cannot stand.

- Defendant's convictions for felony murder based on aggravated assault and involuntary manslaughter could not stand because they were mutually exclusive as the jury illogically found that defendant acted with both criminal intent and criminal negligence in shooting a woman. Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003), overruled by State v. Springer, 297 Ga. 376, 774 S.E.2d 106, 2015 Ga. LEXIS 487 (2015).

Verdicts of involuntary manslaughter and felony murder not mutually exclusive.

- Verdicts convicting the defendants of involuntary manslaughter under O.C.G.A. § 16-5-3 and felony murder were not mutually exclusive since the evidence authorized the jury to logically conclude that the defendants had committed several acts of child abuse, some of which may have been non-felony acts of abuse that inadvertently led to or contributed to the child's death and others that may have constituted felony cruelty to children, under O.C.G.A. § 16-5-70(b), which would have served as the underlying basis for the felony murder conviction. Smith v. State, 288 Ga. 348, 703 S.E.2d 629 (2010), aff'd, 2020 U.S. App. LEXIS 3975 (11th Cir. Ga. 2020).

Guilty verdicts for involuntary manslaughter and as a party to the felony murder of the victim while in the commission of aggravated assault of the victim with a blunt object were not mutually exclusive as the verdicts were supported by evidence of separate acts, committed at separate moments during the night the victim was killed. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).

Guilty verdicts for involuntary manslaughter and as a party to the felony murder of the victim while in the commission of cruelty to children in the first degree by application of force against the victim were not mutually exclusive as the defendant aided the defendant's boyfriend, by omission or commission, to perpetrate numerous acts of abuse against the victim at different moments during the time preceding the victim's death. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).

Sentence for felony murder and involuntary manslaughter prohibited.

- Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, it was error for the trial court to sentence the defendant for involuntary manslaughter in light of the convictions for felony murder as there was only one homicide. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Owner of an automobile, while riding in car, may in some circumstances be guilty of manslaughter when the car is involved in a fatal accident. 1948-49 Op. Att'y Gen. p. 78 (decided under former Code 1933, § 26-1009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 371 et seq. 40A Am. Jur. 2d, Homicide, §§ 61, 62.

C.J.S.

- 40 C.J.S., Homicide, § 127 et seq.

ALR.

- Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606.

Homicide by wanton or reckless use of firearm without express intent to inflict injury, 5 A.L.R. 603; 23 A.L.R. 1554.

Drunkenness as affecting existence of elements essential to murder in second degree, 8 A.L.R. 1052.

Homicide by unlawful act aimed at another, 18 A.L.R. 917.

Discharge of firearm without intent to inflict injury as proximate cause of homicide resulting therefrom, 55 A.L.R. 921.

Negligent homicide as affected by negligence or other misconduct of the decedent, 67 A.L.R. 922.

Absence of evidence supporting charge of lesser degree of homicide as affecting duty of court to instruct as to, or right of jury to convict of, lesser degree, 102 A.L.R. 1019.

Corpus delicti in prosecution for killing of newborn child, 159 A.L.R. 523.

Test or criterion of term "culpable negligence", "criminal negligence", or "gross negligence", appearing in statute defining or governing manslaughter, 161 A.L.R. 10.

Criminal responsibility for injury or death resulting from hunting accident, 23 A.L.R.2d 1401.

Who other than actor is liable for manslaughter, 95 A.L.R.2d 175.

Homicide based on killing of unborn child, 40 A.L.R.3d 444, 64 A.L.R.5th 671.

Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.

Homicide by withholding food, clothing, or shelter, 61 A.L.R.3d 1207.

Propriety of predicating manslaughter conviction on violation of local ordinance or regulation not dealing with motor vehicles, 85 A.L.R.3d 1072.

Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 A.L.R.4th 983.

Criminal liability for injury or death caused by operation of pleasure boat, 18 A.L.R.4th 858.

Propriety of lesser-included-offense charge of voluntary manslaughter to jury in state murder prosecution - Twenty-first century cases, 3 A.L.R.6th 543.

Sufficiency of evidence to support homicide conviction where no body was produced, 65 A.L.R.6th 359.

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