The State relies in this case on the evidence of the condition of the deceased after he was shot, and the testimony of the witnesses, William Randolph, Rembert Casey, Farris Brewer, and Verner Brewer. William Randolph testified in substance: that he lived in Birmingham; that he was a first cousin of Russell Randolph; that he visited Russell Randolph on August 29, 1946, and went to the New Salem Church with Russell Randolph and his wife and some neighbors that night, and returned home ten minutes before twelve o'clock; that he was seventy-five years of age and did not know how old Russell Randolph was; that when he came back from church he procured a flashlight and went outdoors; that he came back in less than ten minutes, and Russell and his wife were talking very loudly; that he asked, "What's the trouble?" and Russell came to the door carrying a single-barrel shotgun and said to the witness, "Go on in the room and lay down;" that he went in and lay down and carried the flashlight with him, and in a few minutes the boy came in there and slammed the door going out, without saying anything; that in a few minutes he heard a gun fire, after which everything was quiet for about three minutes, and then he heard a woman crying out on the porch; that he got up, dressed and started to leave, and the woman said, as he was leaving, "Where are you going, Cousin William?" The witness replied: "I am leaving here. I don't stay at no house where there is a fuss." She summoned the little boy, gave him the light, and instructed him to accompany the witness to the home of a neighbor. About forty-five minutes later the sheriff came there, arrested the witness, and brought him back to the home of Russell Randolph. He and the sheriff went into the room where Russell Randolph had been shot, and he was lying across the bed with the right side of his head almost shot off. The witness does not recall any statement made by the defendant. The witness did not know which of the boys came into the room in which the witness had gone to bed before the shooting. While he was in there he lit a lamp in that room. On cross-examination and redirect *Page 265 examination, the witness substantially reiterated the foregoing testimony.
Rembert Casey testified in substance: That he lived on the same farm where Russell Randolph lived on August 29, 1946. On that night he took Russell and his wife, and the old man, his cousin, to church at New Salem, above Jefferson, in his car and got back to Russell's house about twelve o'clock. The defendant was not there, and he saw him later that night. The home of Russell Randolph was in Banks County. After the witness had gone to his home, the defendant came and asked him to take him to Commerce. He (the defendant) and his daddy had a little trouble and he shot his daddy in the head, and didn't know whether he was dead or not. The witness returned to the home of Russell Randolph expecting to take him to the doctor and found Russell lying there in the bed, dead. The defendant gave the witness no reason for shooting his father. He returned to his home with the witness, but didn't get out of the car. He took the defendant to town to see about an inquest. He talked with a Mr. Hosch and another fellow, who, being informed by the witness that there were eyewitnesses to the shooting, said that no inquest was necessary. The witness returned to the Randolph home and spent the night there. While there, the defendant's mother told the sheriff about how it happened. The defendant also told the sheriff, but the witness couldn't remember all that the defendant told him. He does remember that he said he was taking up for his mother and that the deceased had told his mother to leave or something like that. Farris Brewer, the sheriff of Banks County, testified that on the 29th of August, 1946, he was called to the home of Russell Randolph. When he got there, he found a dead man in the bed, dressed in his night clothes, his head was practically blown off. The defendant had very little to say. He did not deny it. His mother was present; she stated that everything went off all right until they got back from church. He was "fixing" to make her leave. The defendant was not there. Later he came, and asked her what was the matter, and she told him; he went then and got the gun and shot the deceased. The witness said that John had little to say. He did say his father "was wanting" to kill his mother; that he had once had trouble with his father when the latter tried to dig him to death with a hoe, and his mother *Page 266 got between them. The defendant admitted the shooting and pointed out the gun that he used. On cross-examination, the sheriff testified to the statement the defendant made, that it was in defense of his mother; that the mother said she was out on the porch when the defendant came in that night, and she related to him the trouble which she had with the deceased. On redirect examination, the sheriff stated that the mother did not tell him that Russell was sitting up in the bed with the gun pointed at her when the defendant shot him. Verner Brewer, deputy sheriff and son of the sheriff, testified substantially to the same facts as those testified by his father. In addition he exhibited the gun, pointed out as being the one doing the killing, and testified: That the defendant's mother stated that the single-barrel gun was over the doorway and the double-barrel gun was next to the bed. The shell was either on the floor or on the table. It was picked up by Russell Jr. and given to them. The double-barrel gun was not loaded. The statements made by the defendant's mother were in his presence. He related the statements substantially as his father did, adding that she said that she was on the porch crying when the defendant came home and asked her about the trouble.
The defendant's statement, corroborated by the only eyewitnesses to the shooting, Caroline Randolph, mother of the defendant, and Russell Randolph Jr., 17-year-old brother of the defendant, substantially presented a statement of fact as follows: On August 29, William Randolph, first cousin of the deceased, came to the Randolph home in Banks County and kissed Caroline Randolph, wife of the deceased in the presence of the deceased, and after they went to church and upon their return Russell Randolph commenced a quarrel about the kissing episode. He ordered her to leave the house. She asked him to let her stay until morning. He said that in the morning he was going to kill her. She went out on the porch and was sitting there crying, when the defendant and Russell Jr. came home. The defendant asked his mother what was the trouble, and she said that she told the defendant that her husband was quarreling with her about Willie kissing her and that he had a gun and was going to kill her if she didn't leave. That the defendant told her to come on and let's go in; that he is not going to hurt you; that they went in and the defendant said to the deceased, "What's the matter?" That the deceased said, *Page 267 "You'll see in the morning;" that he thereupon pointed a gun at her. She "hollowed" and screamed. The deceased said, "I told you not to come back in here. I told you, if you did I was going to kill you." That while the deceased was thus pointing a shotgun at the defendant's mother and threatening to kill her, the defendant reached to the rack over the doorway in which he, the defendant, was standing, got down another shotgun and shot the deceased in the head, killing him. The defendant stated that he intended to shoot the weapon out of his father's hands. This conclusion was also testified to by the defendant's mother and brother, obviously they could not know his intention.
An examination of the facts in this case discloses that the State relies upon the manner in which the deceased was shot, the defendant's admission that he shot him, other admissions on the part of the defendant, and statements by the mother of the defendant made in defendant's presence.
There is no material conflict in the State's evidence and that offered by the defendant and the defendant's statement. In fact a great deal of the State's evidence corroborates that of the defendant and his statement. For instance, the testimony of William Randolph that he saw the deceased with a gun in his hand before the defendant got home while he was quarreling with his wife, corroborates the testimony of Caroline Randolph that the deceased had the gun before the defendant came home.
While neither the defendant nor his mother told the sheriff as much as they told the jury, they told him nothing that conflicted with what they told the jury.
It is true that the defendant told the sheriff little of the occurrence, yet he did tell the sheriff that the defendant's "father was wanting to kill her" (his mother), and he "was taking up for his mother" and "it was in defense of his mother." The defendant's right and obligation to defend his mother is the same as his right of self-defense. Code, § 26-1015.
I concur in the opinion of the majority as to all the special assignments of error contained in the amended motion for new trial, but it is my firm conviction that the verdict and judgment are decidedly and strongly against the weight of the evidence, and that the trial court erred in overruling the motion for new trial on that general ground. "When the verdict of the jury is strongly *Page 268 and decidedly against the weight of evidence in a criminal case the court will order a new trial. . . It is justifiable homicide to kill one who intends, by violence, to commit a felony upon the person of another. . . When the circumstances are such as to excite the fears of a reasonable man, in the absence of all other proof to the contrary, the law will attribute the killing to these fears, and not to revenge or passion." Aaron v. State,31 Ga. 167.
No presumption of criminal homicide arises, where the accused admits the homicide but states circumstances of justification, and the testimony of witnesses which proves the homicide, also discloses circumstances of justification. Green v. State,124 Ga. 343 (52 S.E. 431).