dissenting. I am unable to agree with my colleagues in their judgment in the present case. There is no question that there was sufficient evidence to support the finding of the jury, but since, in my opinion, the requested charge as set out in the majority opinion was a correct application of the principle of misfortune or accident as contained in Code, § 26-404, as applied to the defendant’s statement, and should have been given in charge to the jury, the failure to do so requires the grant of a new trial. The first four lines of the requested charge is a verbatim statement of the Code,. § 26-404. Then, in explaining the application of this section, the defendant in effect requested the judge to charge the jury that if he did not intentionally drive his car against the car in which the deceased was riding, and was not driving his car in a reckless and wanton manner, or was not operating his car at a greater rate of speed than forty miles per hour, or was not intoxicated, or was not driving his car at so high a rate of speed as to render the said automobile obviously dangerous to others traveling on the highway, whereby the collision occurred, and was not caused by any evil design, intention, or culpable neglect (in the words of § 26-404) on his part, then such collision would be attributable to misfortune or accident and he should be acquitted. Thus viewed, the homicide was the result of misfortune and accident. The charge is not, under any rational construction, one instructing the jury that in order to find the defendant guilty of the offense charged they must find that the collision was the result of an evil design and intent as ruled by the majority opinion. I have read and reread this charge many times and I believe that this is plain. It is of course to be admitted that in the offense of involuntary manslaughter there exists no intent to kill. This request was not dealing with the elements of the offense that must be proved by the State in order to secure a conviction, but was a request instructing the jury to acquit the defendant if they found the occurrence was the result of accident or misfortune, that is, if they found that he did not commit any of the unlawful acts charged *394in the indictment and that the collision was not the result of evil design and intent, or culpable neglect.
The effect of the majority opinion is that the principle of accident or misfortune as embodied in the Code, § 26-404, can never be applicable in a charge of involuntary manslaughter even though the defendant’s statement clearly raises the defense that the homicide was the result of accident or misfortune. In doing so I am confident that the majority are committing a grave error. The principle of the Code, § 26-404, may be pertinent in a charge of involuntary manslaughter when duly requested, where the defendant’s statement is to the effect either (1) that the commission of unlawful acts was the result of misfortune or accident, or (2) that he committed none of the unlawful acts charged in the indictment and the homicide was not the result of evil design or intent, or culpable neglect, or (3) that though he committed the unlawful acts charged they were not the proximate cause of the injury. See Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203). The defendant’s statement falls within the second category and therefore I think the charge should have been submitted to the jury. See Metropolitan St. R. Co. v. Johnson, 90 Ga. 500 (16 S. E. 49). The requested instruction recited verbatim the Code, § 26-404, which is as follows: “A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.” In explaining this section the requested charge in effect points out that an act resulting from a design or intention, or culpable neglect is the opposite of an accident. This explanation is correct. Thus, in effect, the request said that if the defendant was not guilty of any of the unlawful acts charged in the indictment and that the collision was unmixed with any design or intent, or culpable neglect on his part, the killing was accidental and he (the defendant) should be acquitted. Moseley v. Patterson, 27 Ga. App. 133, 136 (107 S. E. 623); Allen v. State, 134 Ga. 380 (67 S. E. 1038).