The defendant was indicted and tried for murder. He was convicted of voluntary manslaughter and sentenced to serve 20 years. Motion for new trial was duly filed, amended and overruled. Defendant appeals. Held:

2. Defendant complains that the court erred in failing to charge the law of involuntary manslaughter in the commission of an unlawful act, contending the evidence that the victim pointed a pistol at him as well as the evidence of simple assault, both being unlawful acts, required a charge on involuntary manslaughter in the commission of an unlawful act. But the unlawful act referred to in Code Ann. 26-1103 is the act of the person who commits the manslaughter, not the act of the victim. While such a charge might have been required if the defendant were guilty of a simple assault, he testified in this instance that the victim struck the first blow by knocking him down. A charge of this Code section was not required. There is no merit in this complaint.

The wife's testimony shows there was a killing without provocation. The defendant's testimony shows there was an accident or justification. Only by the use of imagination or fantasy could it be inferred that the deceased was killed involuntarily by the defendant in the commission of the unlawful act of simple assault.

3. Since the wife's testimony shows at most, murder, and the defendant's testimony shows at most, justification, the grade of offense was for the jury to determine by sifting the evidence. The evidence was sufficient to sustain the verdict.