Thompson v. State , 131 Ala. 18 ( 1901 )

SHARPE, J.

Horse-racing along a public road is unlawful and if the homicide was caused by such unlawful act it may have amounted to manslaughter in the second degree regardless of whether the running was furious, reckless and grossly negligent. For this reason charge 15 was properly refused.

Charges 14 and 2 were both bad under the authority of this court’s recent decisions. As to 14 see Amos v. State, 123 Ala. 50, Rogers v. State, 117 Ala. 9. As to 2, see Avery v. State, 124 Ala. 20 and like decisions therein cited.

To authorize a conviction of manslaughter in the second degree the averment of intention was not necessary to be proved. Therefore, charge 8, if not positively bad, was misleading in tendency. Charge 4 was obviously bad.

Since tbe conviction was only for manslaughter in the second degree the charges given for the State on the subject of intention were not injurious to defendant. This on the same principle that charges relating to malice are held innocuous where the conviction is of manslaughter. See authorities cited 1 Mayfield’s Dig., 45, § 165.

Affirmed.