I agree with the opinion in every respect except wherein it holds that it was the duty of the court under the facts of the case to give to the jury an instruction on involuntary manslaughter. The testimony, as pointed out in the opinion, shows that the shooting done by appellant was not accidental, since he purposely fired his pistol at the time he shot and killed the deceased; and, further, that at the time he did so he intended to hit some part of the automobile in which the deceased and others were riding, but that he did not intend for the load in his pistol to strike or hit the body of the automobile containing its passengers, nor to strike any of the latter. Under the involuntary instruction authorized to be given, and which is copied in the opinion, it is properly stated (if the instruction should be given at all) that if defendant fired his shot at the casing of the wheels of the automobile "without any purpose of killing or injuring anyone in the car," etc., and "when he had reasonable grounds to believe and did believe there was no danger in so firing the pistol, and that the killing of Norma Lee Maggard resulted from his careless firing of the pistol," etc., then the jury should find him guilty of involuntary manslaughter. That language necessarily involves the idea that if defendant, though purposely and intentionally firing at the wheels of the automobile, did not do so carelessly and under the belief that there was no danger in so doing, then he was guilty of no crime and was entitled to an acquittal.

"Involuntary manslaughter" is the killing of another in the doing of some unlawful act, but without *Page 654 intention to kill him; or in the doing of a lawful act in anunlawful manner without like intention. Clem v. Commonwealth,198 Ky. 486, 248 S.W. 1036; Commonwealth v. Owens, 198 Ky. 655,249 S.W. 792; Maulding v. Commonwealth, 172 Ky. 371,189 S.W. 251; and other cases cited in those opinions. Under that definition the involuntary manslaughter instruction directed to be given in this case is necessarily predicated, as is pointed out, upon the theory that it was lawful for appellant, and he had the legal right, to shoot at some part of the automobile occupied by the decedent and which it is my conclusion is untrue, unless its occupant, or occupants, were legally chargeable with committing a felony and defendant was lawfully proceeding to arrest him or them, and it was necessary to so shoot in order to effect the arrest.

No such latter contention is made in this case, and the most that is contended is that, perhaps, some one in the automobile was guilty of a misdemeanor. In that case it is my conviction that an officer has no right to engage in the extremely hazardous and dangerous act of shooting at a moving, and more or less wabbling, vehicle containing passengers or occupants. Such an act, as I conclude, is in and of itself so fraught with recklessness and gross carelessness as to render the killing, if one occurs as a result thereof, voluntary manslaughter as a result of the doing of an unlawful act in a grossly reckless and careless manner, forming the degree of homicide embodied in instruction 3 which the opinion directs to be given and which I approve. It is bottomed upon the theory that the shooting itself was unlawful but with no intention to kill any one, which, with the further fact of gross carelessness, renders the perpetrator guilty of voluntary manslaughter and which I think is the lowest degree of homicide that defendant is entitled to under the facts of this case.

My conclusions are based upon the general principles governing the definition of involuntary manslaughter and would be entertained by me in the absence of any former expression of this court to the same effect. But, in the case of Terrell v. Commonwealth, 194 Ky. 608, 240 S.W. 81, 86, we had before us the identical question of the right of the defendant to insist on the giving of such an instruction, under practically identical facts, and we held that he was not entitled to it. The only difference between the facts of that case and those of this one is that the victim of the shooting therein was riding *Page 655 a mule instead of riding in an automobile, as was true in this case. Upon the point under consideration the opinion said: "The shooting, as testified to by defendant, was voluntary and intentional, and it was for the jury to determine whether the theory of defendant was true or whether he intended to shoot the deceased." We also pointed out in that opinion the distinction between the facts in that case, which were the same as those presented in this one (with only the immaterial difference referred to), and the case of Lewis v. Commonwealth,140 Ky. 652, 131 S.W. 517, relied on by the defendant therein. In the Lewis case wherein the giving of the involuntary manslaughter instruction was directed, there was evidence to show that the shooting was unintentional and accidental; but in the Terrell case, as in this one, the shooting was intentional and not accidental, and being so it was unlawful, but which is untrue, according to the opinion, if it was notcarelessly done. The principle announced in the Terrell opinion upon the point now under consideration was approved in the later case of Clark v. Commonwealth, 227 Ky. 418,13 S.W.2d 250.

The holding of the opinion in this case is not only contrary to the principles of law measuring degrees of homicide, but its approval opens wide the door for the useless and needless destruction of the lives of those traveling in automobiles, or of wounding them, by officers of the law claiming the right to apprehend some one or more of their occupants for the supposed commission of some trifling offense, and which, I think, is so hazardous to the lives and safety of innocent travelers that it should not be approved and that there should be visited upon the perpetrator a punishment commensurate with such dangerous conduct.

For the reasons stated I most respectfully dissent to the extent indicated. Judge DIETZMAN concurring.