Manslaughter from negligence may occur either from the doing of a lawful act in an unlawful manner or without proper care or caution, or from negligent omission to do some act the law requires one to do. But negligence cannot be predicated upon an omission to do an act, unless there was some legal obligation to perform it.56

If death is a direct result of the omission of one to perform a duty, the person guilty of such omission is chargeable with manslaughter; but if such omission or duty was wilful or malicious the crime is murder.57 As an illustration of homicide by negligence, if a person carelessly points a gun at another without examining whether or not it is loaded, and it happens to be loaded and is discharged and death results therefrom, the person so using the gun is guilty of manslaughter.58

53 Steffy vs. People, 130 111., 101;

Crosby vs. People, 137 111., 325. 54 21 Am. & Eng. Ency. Law, 179 c2nd Ed.

55 Wilson vs. People, 94 111., 301, 324. 56 Reg. vs. Smith, 11 Cox, C. 0., 210.