(concurring specially). I think the result reached is correct, but I cannot consent to the doctrine that instructions 5 — I, 5 — 2, 5' — 3, 5 — 4, and 6 are not erroneous. I think they have no application to the case and if defendant had been convicted of manslaughter in the first degree they would 'have been highly prejudicial. Defendant shot and killed Pond. The jury-must characterize that act as a single transaction. The jurors can render *618but one verdict. If that verdict is not guilty, they acquit of all wrong. If their verdict is for unlawful shooting, a misdemeanor, they acquit of felony and of 'justifiable or excusable homicide. The verdict operates both ways. It fixes the precise offense. The offense is neither more nor less. 'For all legal purposes the act is just what the jurors find it to be. The defendant cannot thereafter be prosecuted or punished for either a higher or lower offense while the verdict stands. As to those he has been acquitted. What the jury might have found to be a misdemeanor has on investigation been found to be not a misdemeanor, but a component part of a felony. A homicide which would not ibe manslaughter in the first degree, except for the fact that the slayer was engaged in the commission of a misdemeanor at the time of the killing, cannot be raised to the aggravated degree, by the simple process of reasoning that the included offense of assault is a misdemeanor, therefore defendant was'engaged in a misdemeanor and consequently guilty of manslaughter. A mere included offense which is in reality nothing but a lower degree of the same offense does not aggravate the homicide. Any other view would lead to ridiculous results. To sustain the instructions complained! of would lead by logical deduction to every unlawful act of violence resulting in death being murder.
But the jury did not resort to the reasoning suggested to them by the erroneous instructions. They acquitted defendant of manslaughter in the first degree, and for that reason I am unable to see how those instructions were prejudicial. The verdict was manslaughter in the second degree. This verdict is proper if the killing resulted from the culpable negligence of defendant.
Conceding all that defendant claims for his act, namely, that he was attempting to arrest deceased andl to stop the car in which deceased was riding, he fired his gun at the tire of the car and by accident killed deceased. By doing so he employed a force to stop the car which was exceedingly dangerous to the life of the occupants of the car unless controlled with great precision. It was not so controlled, and unless defendant was such a master hand with a gun as to be morally certain he could hit the tire and hit it exactly right to puncture it, there could be little use in using 'the gun at all. A jury might properly say the use of the gun on a mere chance of 'hitting the tire was culpable negligence. Such culpable *619negligence having caused the death of Pond, they might properly find defendant guilty of manslaughter in the second degree.
I am loath to throw any unnecessary burden upon officers in the discharge of their duties. But where their safety is in no way endangered and1 all they have to fear is the possible escape of a miscreant wanted for a misdemeanor, they should devise some means of taking him alive. I concur in affirming the judgment.