I think that the excerpt from the charge of the court as set out in the opinion by BRICKEN, P. J., states a correct proposition of law, except in its invasion of the province of the jury in charging upon the effect of the evidence. BRICKEN, P. J., in Sawyer v. State, 20 Ala. App. 504, 103 So. 309, gives this definition of involuntary manslaughter:
"Generally it is defined as the unintentional killing of another in the commission of an unlawful act."
In McBride v. State, 20 Ala. App. 434, 102 So. 728, the writer said:
"If, therefore, the person driving the automobile which killed deceased did not keep to the right of the intersection of the center of Twenty-Sixth and Avenue F while turning from Twenty-Sixth street into Avenue F, such person was guilty of a violation of section 20, Acts 1911, p. 634, * * * and punishable under section 3333 of the Code of 1923. There was evidence tending to prove that the person driving the car did not drive to the right of the intersection of the two streets as is provided in the statutes above cited. If this was so, and death resulted therefrom, and the jury so found beyond a reasonable doubt, the person would be guilty as charged in the indictment."
To the same effect is the decision of this court in State v. Massey, 20 Ala. App. 56, 100 So. 625, and Pippin v. State,19 Ala. App. 384, 97 So. 615. 1 Mayf. Dig. p. 639, subdivs. 7 and 8. It is also stated as a general rule without exception that "the unintentional killing of another in doing an unlawful act is manslaughter." Especially is this so where the unlawful act is a misdemeanor either at the common law or by statute. 29 C.J. p. 1149, par. 136. This rule has been applied to an unintentional homicide occasioned by the operation of a motor vehicle in violation of regulations imposed by law as is stated in the text in 29 C.J. p. 1152, par. 138, and sustained by the decisions of many states cited under note 76.
I make no effort to reconcile the decisions above cited with the decisions from the Supreme Court of Iowa, cited and quoted from in the opinion. I content myself with expressing the opinion that the rule in Iowa does not obtain in this jurisdiction, for the sole reason that the charge of the court took away from the jury the right to say whether at the time of the killing the defendant was intentionally violating the speed limit. I concur in the conclusion to a reversal.