Warren Price was found guilty of murder; moving for a new trial, it was denied him by the presiding judge; to that denial he excepted, and the case is here for review. The wife of deceased had left him and gone back to her father’s'house, riding on horseback behind a man who seems to have been intimate with her to an extent unbecoming wifely modesty. Price, the defendant, was that father, and the difficulty between father and husband arose out of alienation of good will on account of this domestic trouble, and eventuated in the homicide by the defendant, on the occasion of an effort by deceased to see his wife and take her home, in response to a letter from her, which he stated to the friend accompanying him he had received from her, and had in his pocket. He reached the farm of the defendant after night-fall, and approached the house by a route through an obscure path between a corn and cane patch, and was shot down by Price from the portico of the house, when some distance from it,’ but within gun-range, he and his friend approaching at the time, or stopping at the moment to survey the surroundings and take a reckoning of the position, a dog having barked at the moment. The questions of law made on the motion for a new trial will be reviewed and determined now by us, after having closely scanned the evidence fully reported by the reporter at the head of this opinion.
1. The deceased, after an effort to get one or two other persons to accompany him on his visit to Price’s house, where his wife was, got a man by the name .of Tharp, with whom he had lived, to accompany him, to whom he stated that he had good news from his wife, and he wished to meet her and see Price and the family, with the view of taking her back to his own home, and that his adventure *454was peaceful, and he meant no harm, having received a letter from his wife to meet her. These statements were parts of the act of going, of the res gestee, and were properly admitted. Johnson vs. The State, this term ; 67 Ga., 460.
2. The state proved that the man with whom the wife of deceased left his home for her father’s, was seen in a dry pond, a private and hidden place, some hundred and fifty yards from her father’s, taking improper liberties with her. Defendant assigns error also on the admission of this testimony.
Viewing this circumstance in connection with the nature of the trouble which was the exciting cause of the unfortunate and bloody catastrophe, of the wife’s desire to return home with her husband, expressed to him, as he informed the witness in the very act of going to the scene where he fell; of the husband’s right to condone any offense of the sort which she had committed, and receive her again as his wife, and of all the other circumstances of this transaction, from beginning to end, which cluster around the wife and daughter as the central figure in the drama, we see no trouble in sustaining the court in letting it go to the jury, as shedding light upon that scene, and showing motive in deceased to desire to rescue his wife from the continued efforts of her paramour to prostitute her further. This whole case would be as obscure in reaching the truth of motive and conduct in the parties to the tragedy, if the woman who caused it were left out of view,— if her character and conduct at her father’s and around it with the man who took her there, wex-e not exhibited to the jury, as the great epic of Homer, the Siege of Troy, would become, if Helen were stricken from its leaves. The evidence was relevant, and bore right on the bull’s eye of the case.
3. It is again objected that the court permitted the doctor to be examined in presence of the jury, in respect to the condition of deceased,—whether or not he was in ar■ *455ticulo mortis, with a view to ascertain whether his dying declarations were admissible. Not a word of statement of the deceased, touching this transaction, was elicited. The jury heard nothing at all from the lips of the deceased about the killing, or what led to it, or had aught to do with it. That point was not reached, but after examining the doctor on his condition, whatever statement the deceased had made perished with him, and was heard by nobody in court. Yet the objection is made on the authority of Hall vs. The State, 65 Ga., 36, that a new trial ought to be granted, because the doctor’s preliminary examination, Avhich elicited nothing touching the merits of the case, Avas heard by the jury. To what extent is that case to be carried? Certainly nobody will insist that it covers the point here. For my own views respecting its true limits,' as designed by the then court, of Avhich I was a member, and as'intended to be limited by Judge CraAvford, see my dissenting opinion in McDonald vs. The State, last term. Besides, this case is one of dying declarations, not confessions of the accused. See 17 Ga., 465, 6th head-note and p. 484.
4. The Code, as well as repeated rulings of this court, affirms that attacks on the character of a witness by contradictory statements may be rebutted by proof of general good character for truth and standing in society. Code, §3575.
5. Where the questions before the jury involved an attack on the person as well as on the habitation or property of the accused, it was the duty of the court to give the jury the law touching defence of person and of habitation, and in regard to the kind of homicide, whether murder, manslaughter or justifiable homicide; and Avhen the law, in respect to each phase Avhich the facts make in the case, is fully and clearly explained in the charge, of course it is no ground of error on which a motion for a new trial can successfully rest.
6. The charge of the court, in this case, is full and clear *456It fairly presents the several defences to which the accused was entitled. It is explicit, to the effect that, if from all the circumstances which had surrounded the accused and deceased from tho inception of this difficulty to its bloody consummation, the defendant was actuated by the fears of a reasonable man, that deceased “was there to commit a serious personal inj ury upon him, his habi tation or his property, and it was necessary to kill Perry in order to prevent the consummation of these offenses, then it would not be a case' of murder, but one of justifiable homicide,” and in addition, it calls the attention of the jury to section 4334 of the Code, which declares that “all other instances which stand upon the same footing of reason and justice as those ¿numerated, shall be justifiable homicide,” and charges “that they are left to the enlightened .conscience and reason of the jury;” and then it emphasizes this section, repeating its language, and tells the jury that defendant’s counsel “invoke it as covering his case,” and repeats, “that is a matter which rests entirely with your enlightened consciences and reason. You have heard the law of manslaughter and' justifiable homicide, and if, after a calm, impartial and rigid investigation of all the testimony in the case, you find, under'your consciences, that Mr. Price was justifiable, outside of the law of homicide, as given to you, and you think it is a case that stands upon the same footing of reason and justice as a clear case of justifiable homicide, then you are authorized to acquit him.” Add to the above a distinct charge of the presumption of innocence, and the degree of evidence beyond a reasonable doubt as necessary to convict, which immediately follows, and the conclusion is irresistible that the presiding judge held the scales of justice in a merciful hand.
7. If the deceased was a mere trespasser, with no evil intent before and at the time he was shot down, he was entitled to be warned off, and then, if he did not leave, that degree of force necessary to make him leave may be used. This, in substance, is the charge of the court on this point, *457and we think it the law. 17 Ga., 465 ; 58 Ib., 35 ; Russell on Crimes, 519
8. Surely, it needs no authority to show tha-: when jurors are attacked, they may repel the attack by counter-affidavits. See Georgia Reports passim. This attack was fully and successfully repelled and overcome in this case.
91 The verdict is not contrary to law or evidence. If the deceased was not decoyed to that house that night for the purpose of killing him, it is quite certain that a delib erate purpose to kill him, whenever he came there, dwelt in the heart of the accused. The gun was loaded for that purpose; the very ball which alone would have done the work, was taken from a child playing with it,- and put in the shot-gun,-with that intent; the other shot in the gun would have done the work, and according to the doctor, the wounds they made were equally fatal; the exclamation of accused, “ Ah, I have got you at last,” as he saw, in the clear moonlight, the young man fall, is as clear evidence of purpose long meditated as the large ball that he took from the child, and to make the killing sure, rammed in the gun with the smaller shot, and showed that to wound, to frighten off, to repel an intruder, were not enough to satr isfy the accused, but sure work, the work of death, was in his heart. He expected him. To some witnesses he said every night, to another, especially that night he said he expected him. Why especially that night? Was the decoy duck his contrivance? Was the “ good news ” the poor fellow said he got from his wife sent within his knowledge, and therefore did he expect, and was he on the lookout for him ? These are questions which, under the facts proved, the jury may have answered in the affirmative; and if that be the truth, the murder has no extenuation. Or, it may be, that the words, “ especially that night,” can be explained on some other hypothesis; if so, then was he in danger as to personal hurt? Hid deceased have his pistol out or pointed? It is clear that he did not. Was there danger to his habitation ? Another man was in the *458bouse with him, and surely the two could have protected it, if attacked; but no attack was made upon it.
So that, at best for defendant, he shot, and shot to kill, and did kill, without a single word of remonstrance or caution, or warning, when it is not shown that his person or habitation was endangered at the time. And his eye was so keen and his nerves so steady that moonlight was as good as daylight would have been, to execute his purpose. The man against whom revenge was in his heart was killed, and the other accompanying him was wounded, and he left the body of his friend in the hands of the slayer and his family and of the friend lodging that night in the slayer’s house. How easy to take the pistol of deceased out of the pocket and put it by him? How easy to take out of his pocket the note of his wife which decoyed him to his death? Be all this as it may, in the jje of Him whose all-seeing eye is over every scene, certain it is that this court .has no power, in law, to adjudge either that the jury did wrong in finding defendant guilty, or that the judge did wrong in upholding the verdict.
Judgment affirmed.