1. Though it is ordinarily inapt in a criminal case to give in charge Code 38-107, in whole or in part, the instruction here complained of was harmless and does not constitute reversible error.
2. The court did not err, in the absence of a request therefor, in failing to define the term "felony" as used in Code 26-1011.
3. On the trial of one indicted for the offense of murder, where the defendant in his statement to the jury contends that he killed the deceased in self-defense, it is error for the court, after reading to the jury the provisions of the Code applicable to justifiable homicide, to fail to distinct]y inform the jury that, if they believed the accused was justified in his act, he should be acquitted.
Ralph Fountain, under an indictment charging him with the murder of William Hansel Smith by shooting him with a pistol, was tried and found guilty of murder with a recommendation to mercy, and was sentenced to life imprisonment. His motion for a new trial as amended was overruled, and the case is here on exceptions to that ruling.
1. The court charged the jury a part of Code 38-107, as follows: "In considering this case, the jury may consider all the facts and circumstances of the case the witnesses' manner of testifying, their means and opportunity for knowing the facts to which they testify, their interest or want of interest, their information, and their personal credibility so far as the same may legitimately appear from the trial of the case." Ground 1 of the amended motion complains that this charge was erroneous for the following reasons: (a) because the jury, in considering the evidence and the defendant's statement, should ascertain whether or not the defendant is guilty beyond a reasonable doubt; (b) said charge was error because it is a part of the rule of evidence for determining where the preponderance of the evidence lies in a civil case, and has no application in a criminal investigation; (c) it is always error to charge this rule of evidence in whole or in part in a criminal case, because it is applicable alone in a civil case; (d) it was error to charge a portion of this section without a charge of all of it.
Though it was inapt for the court to give the provisions of this Code section as to determining the credibility of witnesses, such error, if any, was harmless. Harper v. State, 201 Ga. 10 (1) (39 S. E. 2d, 45).
2. The court charged so much of Code 26-1011 as is applicable to the plea of self-defense; and the failure to define the word "felony" in such charge, in the absence of a request, was not such error as requires the grant of a new trial. Mills v. State, 133 Ga. 155 (4) (65 S. E. 368); Helms v. State, 138 Ga. 826 (7) (76 S. E. 353).
3. Error is assigned in special ground 3 on the failure of the court to specifically instruct the jury that, if they believed the defendant was not guilty of murder, or was justified under the law, they should return a verdict of not guilty, as well as on his failure to instruct them that, if they found that the defendant was not guilty of manslaughter, or was justified, they should return a verdict of not guilty; the complaint being that the court charged that, "if you find the defendant guilty of the offense of murder, you return one of two verdicts, either a verdict, 'We, the jury, find the defendant guilty,' or you may return a verdict, 'We, the jury, find the defendant guilty and recommend mercy,' but did not instruct the jury that on the charge of murder they could return a verdict of not guilty if they believed the defendant was not guilty, or that if he was justified they should return a verdict of not guilty. In summary, the complaint is that the jury were not instructed on the principle of law embodied in Code 2 6-1017, which provides: "The homicide appearing to be justified, the person indicted shall, upon the trial, be fully acquitted and discharged."
The charge in this case is practically identical with that given in Waller v. State, 102 Ga. 684 (28 S. E. 284). There the defendant was convicted of manslaughter. On the trial of the case, the law of murder, manslaughter, and justifiable homicide was given in charge. Error was assigned on the failure to instruct the jury that, if the defendant's act was justifiable, he should be acquitted. In holding that this failure so to charge was error requiring the grant of a new trial, this court said: "Complaint is made that the failure of the judge to give this instruction was prejudicial to the accused; and we think this complaint is well founded. The principle of homicide in self-defense was directly involved in this case, and the accused was entitled, as a substantive, affirmative defense, to the benefit of his contention that the homicide was really justifiable. It is true that, in the course of his instructions, the trial judge charged the jury that if the accused was neither guilty of murder nor voluntary manslaughter, he should be acquitted; but he did not at any time state to them what should be their finding in the event they found he was justified in his act. The effect of this instruction was to give the accused the benefit of his theory of justifiable homicide only as a negative defense, and authorized the jury to consider the facts appearing in support of that theory only in so far as it tended to negative the idea of his guilt either of murder or voluntary manslaughter; whereas justifiable homicide is in law itself a substantive and affirmative defense, and if found well supported in fact, the accused would be entitled to an acquittal without reference to the evidence which apparently tended to convict him of the offense of murder or voluntary manslaughter." P. 685, 686.
The Waller case has been cited by this court in several subsequent cases and distinguished, but the ruling therein has never been criticised. The cases of Nix v. State, 120 Ga. 162 (47 S. E. 516), Taylor v. State, 121 Ga. 348 (49 S. E. 303), Hill v. State, 164 Ga. 298 (138 S. E. 229), and Tiller v. State, 196 Ga. 508 (26 S. E. 2d, 883), hold that, where the court has given in charge the law as to justifiable homicide, it is not error in the absence of a request to fail to charge the provisions of Code 26-1011; and upon examination of these cases, they show that in each one the charge as given informed the jury that, if they believed the defendant was justified, they should return a verdict of not guilty.
It was error for the court to overrule this ground of the amended motion for a new trial.
Having held that the defendant is entitled to a new trial because of the error dealt with in the division above, it becomes unnecessary to consider special ground 4, which sought a new trial on the ground of newly discovered evidence. Nor is it necessary to pass upon the sufficiency of the evidence to support the verdict.
DUCKWORTH, C. J., dissenting. The ground upon which the ruling in division 3 is based is an attack upon an excerpt of the charge that conforms in all respects with the law, and merely instructs as to the punishment if the verdict is guilty without more, and the punishment if added to such verdict is a recommendation to mercy. This charge is not attacked because of its incorrectness but solely because other charges were not given. Without exception this court has always held that such a ground is without merit. There could never be justification for reversing a correct charge solely because the judge erred in failing to charge properly in some other respect. I therefore dissent from the ruling made in division 3, the corresponding headnote, and from the judgment of reversal. I am authorized by Mr. Justice Candler to state that he concurs in this dissent.