The facts in this case are not sufficient to sustain a conviction of manslaughter degree. Reynolds v. State, 154 Ala. 14, 45 So. 894; Lay v. State, 26 Ala. App. 458, 162 So. 319; Curlette v. State, 25 Ala. App. 179, 142 So. 775; Barnett v. State, 27 Ala. App. 277, 171 So. 293; 29 C.J. 1155-6; Birmingham Ry., Light Power Co. v. Drennen, 175 Ala. 338, 347, 57 So. 876, Ann.Cas. 1914C, 1037; Crisp v. State, 21 Ala. App. 449, 109 So. 282. Thos. S. Lawson, Atty. Gen., and Noble J. Russell, Asst. Atty. Gen., for the State.

F. D. McArthur, of Birmingham, for appellant. Under the evidence there could be no conviction of manslaughter in the first degree, and it was error to refuse defendant's requested charge so stating. Jordan v. State, 229 Ala. 415, 416, 157 So. 485; Lay v. State, 26 Ala. App. 458, 162 So. 319; Curlette v. State, 25 Ala. App. 179, 142 So. 775, 776; Copeland v. C. of G. R. Co., 213 Ala. 620, 105 So. 809; Crisp v. State, 21 Ala. App. 449, 109 So. 282; Id., 215 Ala. 2, 109 So. 287. A. A. Carmichael, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.

Wm. N. McQueen, Acting Atty. Gen., and Geo. C. Hawkins, Asst. Atty. Gen., for petition. If defendant drove an automobile so recklessly along a public highway and in such manner as to endanger human life, and death resulted, the act would be manslaughter in the first degree whether the positive intention to kill was proven or not. Mitchell v. State, 60 Ala. 26; Harrington v. State, 83 Ala. 9, 3 So. 425; Williams v. State, 83 Ala. 16, 3 So. 616; Reed v. State, 25 Ala. App. 18, 142 So. 441; Reynolds v. State, 24 Ala. App. 249, 134 So. 815; Barnett v. State, 27 Ala. App. 277, 171 So. 293, certiorari denied 233 Ala. 182, 171 So. 296; Pratt v. State, 27 Ala. App. 301, 171 So. 393; Hammell v. State, 21 Ala. App. 633, 111 So. 191; Curlee v. State, 25 Ala. App. 179, 142 So. 775; Reed v. State, 225 Ala. 219, 142 So. 442; Duncan v. State, 30 Ala. App. 356, 6 So.2d 450. Where evidence was in conflict but that for the State was sufficient to support a conviction, if believed, the affirmative charge was properly refused. Smith v. State, 17 Ala. App. 610, 88 So. 51; Cox v. State, 21 Ala. App. 172, 106 So. 71; Freeman v. State, 241 Ala. 178, 1 So.2d 917.

Charge 7, the affirmative charge as to manslaughter in the first degree, was erroneously refused to defendant. Curlette v. State, 25 Ala. App. 179, 142 So. 775; Barnett v. State, 27 Ala. App. 277, 171 So. 293; Willis v. State, 29 Ala. App. 365, 197 So. 62; McHugh v. State, 30 Ala. App. 231, 3 So.2d 569. It was error to refuse charge 10. Barnett v. State, supra; Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219. Charge 14 is a correct statement of law applicable to this case. Tidwell v. State, 70 Ala. 33; Fitzgerald v. State, 112 Ala. 34, 20 So. 966; Washington v. State, 18 Ala. App. 82, 89 So. 103. Charge 27 is a correct charge and should have been given. Harrington v. State, 83 Ala. 9, 3 So. 425; Reynolds v. State, 24 Ala. App. 249, 134 So. 815; Jones v. State, 33 Ala. App. 451, 34 So.2d 483; Gills v. State, 35 Ala. App. 119, 45 So.2d 44; Clayton v. State, 36 Ala. App. 175, 54 So.2d 719; Gurley v. State, 36 Ala. App. 606, 61 So.2d 137.

Code 1940, Tit. 14, § 320; Harrington v. State, 83 Ala. 9, 3 So. 425; Williams v. State, 83 Ala. 16, 3 So. 616; Johnson v. State, 94 Ala. 35, 10 So. 667. There must be actual knowledge or its equivalent of peril of person injured, coupled with conscious failure to act so as to avert injury, to constitute wilful or wanton conduct. Curlette v. State, 25 Ala. App. 179, 142 So. 775; Barnett v. State, 27 Ala. App. 277, 171 So. 293; Willis v. State, 29 Ala. App. 365, 197 So. 62. Homicide may result from carelessness of such low degree or trial character in performance as not to involve criminality. Author, supra; Crisp v. State, 21 Ala. App. 449, 109 So. 282. Sufficiency of evidence to sustain a conviction is properly tested by motion for new trial.

Solicitor's comment on defendant's failure to testify was not injurious where court sustained defendant's objection and instructed jury to disregard comment and not be influenced by same. Watkins v. State, 21 Ala. App. 585, 111 So. 43; Lucas v. State, 24 Ala. App. 468, 137 So. 902; Curlette v. State, 25 Ala. App. 179, 142 So. 775; Gable v. State, 31 Ala. App. 280, 15 So.2d 594. HARWOOD, Judge.

Willis v. State, supra; Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219; Copeland v. Central of Ga. R. Co., 213 Ala. 620, 105 So. 809; Lewis v. State, 27 Ala. App. 155, 167 So. 608. Appellant must have been conscious at the time of his failure to act so as to avert injury — must have realized at the time that he was not acting so as to avert injury to the person of whose presence he had actual knowledge. Curlee v. State, 25 Ala. App. 179, 142 So. 775. The scintilla rule does not apply in criminal cases.

Although the solicitor should not comment on defendant's failure to testify, there is no prejudicial error when the court immediately instructs the jury that no adverse presumption should arise on defendant's failure to testify. Kilpatrick v. State, 213 Ala. 358, 359, 104 So. 656; Watkins v. State, 21 Ala. App. 585, 111 So. 43; Id., 215 Ala. 484, 111 So. 44; Lucas v. State, 24 Ala. App. 468, 137 So. 902; Id., 223 Ala. 677, 137 So. 903; Curlette v. State, 25 Ala. App. 179, 142 So. 775; Arant v. State, 232 Ala. 275, 167 So. 540; Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Gilbert v. State, 20 Ala. App. 565, 104 So. 45; Stone v. State, 105 Ala. 60, 17 So. 114; Carter v. State, 30 Ala. App. 251, 4 So.2d 195; Wade v. State, 18 Ala. App. 322, 92 So. 97; 7 Ala. Dig., Criminal Law, 1037, 1044, 1055. When the jury is instructed in absence of defendant such error is cured by calling in the defendant and the jury and repeating the instructions in his presence.

Beddow, Ray Jones, of Birmingham, and Jas. E. Smith, Jr., of Tuscumbia, for appellant. The trial court erred in refusing the affirmative charge requested in writing by appellant as to manslaughter in the first degree. Barnett v. State, 27 Ala. App. 277, 171 So. 293; Broxton v. State, 27 Ala. App. 298, 171 So. 390; Pratt v. State, 27 Ala. App. 301, 171 So. 393; Willis v. State, 29 Ala. App. 365, 197 So. 62; Curlette v. State, 25 Ala. App. 179, 142 So. 775. Manslaughter in the second degree is the unintentional killing of another in the commission of an unlawful act, and this whether the unlawful act be malum prohibitum or malum in se. Thompson v. State, 131 Ala. 18, 31 So. 725; Braxton v. State, supra. Thos. S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty. Gen., for the State.

This court has said, where persons are killed by automobiles, " 'if there is evidence tending to show that the blow struck by the automobile being driven by defendant was intentional, or the automobile was being so driven as to evidence a wanton and reckless disregard of human life at the time and place and under the circumstances,' this would be voluntary manslaughter." Barnett v. State, ante, p. 277, 171 So. 293; Curlette v. State, 25 Ala. App. 179, 142 So. 775. Without entering into a detailed discussion of the testimony in the instant case, we simply find that there was sufficient evidence to justify the jury in rendering a verdict of manslaughter in the first or second degree, and therefore the requested written charges instructing the jury to find the defendant not guilty under these charges were properly refused.