¶1Was the Court right in refusing to sustain the motion in arrest of judgment in this case? We think not. Involuntary manslaughter is thus defined in the Revised Code, sections 4261, 4263 : “ Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act which probably might produce such a consequence in an unlawful manner. Provided, always, that when Such involuntary killing shall happen in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offence shall be deemed and adjudged to be murder.”
¶2Involuntary manslaughter is in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution.
¶3The first grade is punished as a felony. The second by a less punishment. The verdict had been received by the Court, and the jury discharged from the consideration of the case. Of which of .these grades of involuntary manslaughter did the verdict find the defendant guilty ? It is impossible to tell. How, then, could a legal judgment be rendered upon *119the finding ? We think the decision of this Court in the case of Davis vs. The State, 22 Ga., 101, lays down the principle which must control this case.
¶4Judgment reversed.