(After stating the foregoing facts.) 1. The only criticism made in the motion for a new trial upon the court’s instructions to the jury was confined to the following extract from the charge: “His (defendant’s) contention is that the deceased’s brother made an assault upon him with a deadly weapon, and the ■deceased was on this occasion aiding and abetting him in an effort to take his (defendant’s) life, and while he was thus aiding and-abetting his brother by holding him (defendant) at the time, he (defendant) fired the shot that took the life of the deceased;” the objection being that “one of the defendant’s theories of defense was thereby excluded.” The judge certified this ground of the motion, but qualified his certificate by the addition of the following: “I add the following note to my certificate to the above assignment. Two distinct defenses were presented and insisted upon by defendant’s counsel: one was that he did not fire the shot that took the life -of the deceased; the other was that if he did fire the fatal shot, it was fired in self-defense. In presenting the latter defense in my charge, it was done upon the supposition that he fired the fatal shot. Both defenses and the law applicable thereto were presented to the *570jury.” The criticism upon the charge has no force, when considered in the light of the judge’s note qualifying his certificate. It is not denied that the portion of the charge quoted states correctly one theory of the defense. From the judge’s certificate it affirmatively appears that the other theory was presented to the jury; and this statement is borne out by an inspection of the charge itself, which is in the record. The court could not state both theories at the same time; the statement of one, followed by instructions as to the law applicable to it, did not amount to an exclusion of the other, when the latter was given a place in the charge, and the jury were properly instructed in regard to it.
2. The verdict of guilty was amply supported by the evidence of several eye-witnesses to the tragedy; no error of law other than that dealt with above was complained of, and the judgment of the court below refusing a new trial must be affirmed.
Judgment affirmed.
All the Justices concur.