112 Ala. 34, 20 So. 966 (1896)
It is laid down by Bishop that “every act of gross carelessness, even in the performance of what is lawful, and, a fortiori, of what is not lawful, and every negligent omission of a legal duty, whereby death ensues, is indictable either as murder or manslaughter.”1 And that author gives the reason underlying the doctrine of criminal carelessness thus: “There is little distinction, except in degree, between a positive will to do wrong and an indifference whether wrong is done or not. Therefore, carelessness is criminal, and, within limits, supplies the place of the direct criminal intent.”
He says further on this subject that “there may be a degree of carelessness so inconsiderable as not to be taken into account as criminal by the law,” and, again, that a consideration of the principles upon which criminal responsibility for the results of carelessness rests will impress the student “with the general truth that, in the criminal department, as well as in the civil, our law, under proper circumstances, declines to take into its account things trivial and small.” Our own adjudications are in line with these texts, and always predicate criminality, not upon mere negligence or carelessness, but upon that degree of negligence, or carelessness which is denominated “gross,” and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of that indifference to consequences which in some offenses takes the place of criminal intent. Thus, in Hampton v. State, 45 Ala. 82, it is said: “There must be a criminal intent, or negligence so gross as to imply it.” And in White v. State, 84 Ala. 421, 423, 4 South. 598, 599, is this language: “Gross carelessness, even in the performance of lawful acts, is punishable, if another is injured thereby.” There can, we therefore think, be no doubt, upon authority and principle, that homicide may result from carelessness of such low degree or trivial character in the performance of a lawful act as not to involve criminality in the person so carelessly performing the act; and it follows that criminality cannot be affirmed of every lawful act carelessly performed, and resulting, because of such carelessness, in the death of another. The carelessness must be aggravated, so to speak; it must be gross, implying an indifference to consequences.
For illustration, employing some of the circumstances involved in some of the tendencies of the evidence in the present case: The deceased, standing in front of a saloon counter, requests the defendant, who is behind the counter, to hand him a pistol lying on the shelf behind the defendant. If the latter, in complying with the request, threw the weapon down on the counter in front of deceased, and it was thereby discharged, killing deceased, this would be at least manslaughter in the second degree, though defendant did not intend to injure deceased, and did not suppose the pistol would be discharged; but if the defendant, in passing the weapon to deceased, inadvertently held the muzzle toward him, and it was accidentally discharged, with fatal results, the defendant is not criminally responsible; for, though that method of handing the weapon to the deceased involved, or may have involved, carelessness, it was of too slight a degree, too trivial, for criminality to be affirmed of it.
The evidence before us presents three tendencies in respect of defendant's conduct on the occasion of the shooting. First, that he intentionally, and with malice, shot the deceased. This, of course, would have justified and required conviction of murder, if the jury had found in line with this tendency of the evidence.
Second, that the pistol was discharged without intent on the part of the defendant, but when he was in the act of pointing or aiming it at the deceased. On this phase of the evidence, if believed by the jury, the defendant was guilty of manslaughter in the second degree, because of the unlawfulness of the act he was committing at the time of the shooting. Acts 1888–89, p. 67; Sanders v. State, 105 Ala. 4, 16 South. 935.
Third, that the defendant did not intentionally shoot the deceased, or point or aim the pistol at him, but that, while he did not attempt to hand the weapon to the deceased in the most careful and prudent manner, or even in such mode as would ordinarily have been adopted by careful and prudent men, he yet was not guilty of that degree of carelessness which the law terms “gross,” and which affords grounds for the implication of indifference to consequences on the part of the defendant. If the jury found only this character of carelessness on defendant's part, and that the homicide resulted from it, the defendant was entitled to a verdict of acquittal.
The trial court, in its general charge, given ex mero motu to the jury, took no account of the tendency of the evidence last considered, and, in effect, instructed the jury to convict if they found that the defendant was negligent or careless in any degree in attempting to hand the pistol to deceased, and that the homicide resulted from such carelessness. This was error, on the principles we have announced, and must work a reversal of the judgment below.
There was indeed no evidence in the case of gross carelessness on the part of the defendant in handling the weapon. According to the state's evidence, the defendant shot deceased either intentionally and maliciously, or while performing the unlawful act of pointing or aiming the pistol at him. The evidence on the part of the defendant was that the parties were on the friendliest of terms; that defendant did not intend to shoot deceased; that he did not point or aim the pistol at deceased; but that, while he was handing it over the counter, in compliance with the request of deceased, he, defendant, not having his hand on the trigger, it was accidentally discharged.
When reference is had to all this evidence, some of the charges requested by the defendant to the effect that if the jury should find there was not intentional shooting, and that defendant was not, at the time when the shot was fired, pointing or aiming the pistol at the deceased, but that the shot was accidental, they should acquit, should have been given.
We find no error in the court's rulings on evidence, or in respect of other charges refused to the defendant, each of which was faulty in one or more respects under decisions of this court. Reversed and remanded.