When the affidavit or indictment is based upon the commission of an act which is unlawful because it is negligent, the allegations must allege facts by which it is made to appear that the act was done wantonly or with reckless disregard for the safety of others, and it must further appear that such act was the proximate cause of the death. Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, it was held to be necessary to a charge of manslaughter that the death of the decedent be made to appear the natural or necessary result of the unlawful act relied upon and that it was insufficient to charge that the killing occurred "while" the defendant was doing the unlawful act. . . . .' In Kimmel v. State (1926), 198 Ind. 444, 451, 154 N.E. 16, it was held that an affidavit for involuntary manslaughter must charge that the unlawful act was the proximate cause of the death of a human being.

When the affidavit or indictment is based upon the commission of an act which is unlawful because it is negligent, the allegations must allege facts by which it is made to appear that the act was done wantonly or with reckless disregard for the safety of others, and it must further appear that such act was the proximate cause of the death. Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, it was held to be necessary to a charge of manslaughter that the death of the decedent be made to appear the natural or necessary result of the unlawful act relied upon and that it was insufficient to charge that the killing occurred `while' the defendant was doing the unlawful act. The charge is not aided by the allegation, by way of conclusion, that the act was done with wanton and reckless disregard for the safety of others.

When the affidavit or indictment is based upon the 9, 10. commission of an act which is unlawful because it is negligent, the allegations must allege facts by which it is made to appear that the act was done wantonly or with reckless disregard for the safety of others, and it must further appear that such act was the proximate cause of the death. In Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, it was held to be necessary to a charge of manslaughter that the death of the decedent be made to appear the natural or necessary result of the unlawful act relied upon and that it was insufficient to charge that the killing occurred "while" the defendant was doing the unlawful act. The charge is not aided by the allegation, by way of conclusion, that the act was done with wanton and reckless disregard for the safety of others, Kimmel v. State (1926), 198 Ind. 444, 154 N.E. 16.

It resulted from the deliberate act of firing the pistol. Potter v. State (1904), 162 Ind. 213, 70 N.E. 129; Males v. State (1927), 199 Ind. 196, 156 N.E. 403. The appellee, in its brief, calls attention to § 8025 Burns R.S. 1926, which is as follows: "In the trial of a person charged with committing or attempting to commit a felony against 5. the person or property of another while armed with a pistol or revolver, without having a permit to carry such firearm as hereinbefore provided, the fact that such person was so armed shall be prima facie evidence of his intent to commit such felony."

. This may be true in a proper case but I do not believe that such a case has been made out here, nor can I follow the reasoning (nor in view of Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 102 A.S.R. 198, 1 Ann. Cas, 32, 64 L.R.A. 942, can we approve the holding) of the case usually cited to sustain the statement made in R.C.L. supra, viz: In re Heigo (1910), 18 Idaho 366, 110 P. 1029, Ann. Cas. 1912A, 138 32 L.R.A. (N.S.) 877, (which case held that where a bystander observed an altercation between two men, one of whom was armed, and died as the result of fright, terror and nervous shock, the man who was armed was guilty of manslaughter under an Idaho statute defining the crime).

In detail, his contention is that the allegation of the affidavit that, "while in the commission of the unlawful act of speeding as aforesaid," the appellant drove his automobile against Pens and killed him is not equivalent to and does not constitute a charge that as a result of the violation of the law by appellant Pens was struck and killed. He calls our attention to Kimmel v. State (1926), 198 Ind. 444, 154 N.E. 16; Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. 198, 1 Ann. Cas. 32, and other cases and says: "the mere averment that while this unlawful act was being done the defendant killed another does not supply the place of an averment of facts showing that the alleged unlawful act was the proximate cause of the homicide." The indictment in the case at bar is not open to the objections made, and it sufficiently charges the crime of involuntary manslaughter.

o sustain alleged error is: (1) That the evidence is not sufficient to establish the alleged fact that he was in the commission of the unlawful act as charged at the time of the alleged injury, and therefore is insufficient to establish the commission of the alleged unlawful act as charged; and (2) the evidence is not sufficient to establish the fact that the alleged unlawful act charged in the indictment to have been committed by appellant was the proximate cause of the injury to and death of Woaneta Franke, but maintains that the proximate cause of the injury to Woaneta Franke which caused her death, was her own act in suddenly running directly in front of the passing automobile of appellant, which would otherwise have passed by her in perfect safety. The rule of law pertaining to direct and proximate cause to sustain the propositions above made, as stated in the cited cases, Dunville v. State (1919), 188 Ind. 373, 123 N.E. 689; Luther v. State (1912), 177 Ind. 619, 98 N.E. 640; and Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. 198, 1 Ann. Cas. 32, is relied upon by appellant to sustain his alleged error. The facts in the Dunville case are not greatly dissimilar to the facts in the case at bar.

The giving of this instruction over objection is reversible error. Potter v. State (1904), 162 Ind. 213, 216, 217, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. 198, 1 Ann. Cas. 32. Instruction No. 42 concerned self-defense. It contained the following alleged erroneous statement, to wit: " Before such killing can be justified on the ground of self-defense, it 12. must appear to the reasonable satisfaction of the jury from the whole of the evidence that the defendant, at the time of the shooting had reasonable cause to believe and did believe that the deceased was about to kill him, or to do him some great bodily harm"; which alleged error is based upon the italicized words.

See, also, 1 East, Pleas of the Crown 260; 2 Roscoe, Crim. Ev. 800. * * * It is not charged in the indictment in this case that the homicide resulted from the reckless, careless or negligent manner in which appellant was using or handling the pistol at the time it was discharged. * * * It will be readily seen that, under the charge made by the indictment, the case at bar does not fall within that class of cases where the homicide is the result of culpable carelessness or negligence * * * in using or handling a dangerous weapon." Potter v. State (1904), 162 Ind. 213, 216, 217, 218, 70 N.E. 129, 64 L.R.A. 942, 102 Am. St. 198, 1 Ann. Cas. 32. And further deciding that the accidental discharge of a pistol, causing death, "while" the defendant was unlawfully carrying it concealed in his pocket did not make him guilty of involuntary manslaughter, the court added: "The theory of the State in the lower court, as the case appears to have been placed before the jury under the evidence and instructions of the court, was that the carrying of the revolver concealed by appellant, in violation of the statute, was the commission of an unlawful act from which the homicide resulted. It is undoubtedly true, as a general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which naturally or necessarily flow or result from such unlawful act.

40 Am.Jr.2d Homicide §§ 110, 112 (1968); 1 Wharton's Criminal Law and Procedure, §§ 211, 212, p. 463, 464 (1957). Although this defense is recognized in Indiana, Butler v. State (1967), 249 Ind. 484, 229 N.E.2d 471; Fausett v. State (1942), 219 Ind. 500, 39 N.E.2d 728; Lloyd v. State (1934), 206 Ind. 359, 189 N.E. 406; Weston v. State (1906), 167 Ind. 324, 78 N.E. 1014; Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, we find no Indiana cases which explicitly treat the accident or misadventure defense theory. From a review of decisions in Indiana and other [2] jurisdictions, we determine that the defense of homicide by accident or misadventure includes three elements: