dissenting. 1. I do not concur in the ruling .announced by the majority in the first division of the opinion. A witness was permitted to testify, over objection of counsel for the defendant, that “He [the deceased] prayed for himself, and asked ■God to forgive Mr. Herrington for doing him that way.” This testimony was admitted as a “part of the res gestee.” When it ■was offered, counsel for the defendant objected to its admission, among others, upon the ground that it was not a part of the res ..gestee, and “that it did not relate to how the act was done, nor the ■motive, nor. tend to fix blame upon the defendant for the shoot'ing;” and further, “that the language, while not illustrating the issue, was calculated to have a sensational effect upon the jury, and excite undue prejudice against the defendant.” The objections raised to this testimony were well founded. The evidence was of ■such character as tended to accomplish- substantial injury to the •cause of the accused, by generating prejudice against him in the minds of the jurors. It was irrelevant, 'and had no bearing upon ■the law of the ease. No principal fact was in, issue which the ■ declaration tended to illustrate. With respect to the admission •of declarations as res geste, it is said in 1 Gr. Ev. (15th ed.) §108: “There .are other declarations which are admitted as original evidence, being distinguished from hearsay by their connection with the principal, fact under investigation. The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its ‘birth to some preceding circumstance, and, in turn, becomes the prolific parent of others; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res geste, may always be shown to the jury, *320along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and. in the exercise of his sound discretion.” Under this rule the declarations are admissible only in connection with some principal fact material to the case, for the purpose of explaining the fact. Where there is no principal fact to be illustrated, the-declaration will have no legal office to perform, and, if liable to have an improper influence upon the jury, it should be excluded. Upon the point that the declarations must be relevant to the issue on trial, before they would be admissible as res gestaj, see the cases of Monroe v. State, 5 Ga. 85, 134 ; Armistead v. State, 18 Ga. 704 (2) ; Brown v. State, 28 Ga. 199 (3).
2. Nor do I concur in the conclusion announced in the fourth division of the opinion. The charge excepted to was as follows: “If Herrington, at the'time he shot Smith, had reason to believe and did believe that Smith was merely going to run into him and strike him with his hand, and do nothing to him worse than that, that would be a battery,- and Herrington had no right to take Smith’s life; and if he did so under these circumstances, he would be guilty of murder.” One of the grounds upon which this charge was assigned as error was that it tended to exclude from the consideration of the jury the defense of justifiable homicide. The court had previously instructed the jury upon the law of justifiable homicide. There was nothing stated by the judge suggesting a qualification of that part of the charge set out in the foregoing excerpt. Indeed, 'the language of the. excerpt purports to apply the law to the particular case, and in positive terms instructs the jury that, under conditions such as are therein enumerated, the defendant would not have been justified in taking the life of the deceased. If the court was in error in giving this instruction, it was harmful error and sufficient cause for the grant of a new trial. Under the Penal Code, §70, a person may take the life of another when done in defense of his person, as against one who manifestly intends and endeavors, by violence or surprise, to commit a felony upon him. In this case, if the accused shot the deceased in order to save his own life or in order to prevent the deceased from committing a felonious, assault upon him, he would have been justified under the provisions of the code to which allusion has just been made. The-charge of the court amounted to an instruction, as a matter of *321law, that a stroke from the bare'hand of„ the deceased could not have amounted to a felony. This position is not tenable. Conditions are numerous where one person may by a stroke of the hand take the life of another; as, for example, where the assailant has great physical power and the person assailed is of feeble, vitality, either from the infirmities of old age or from waste by disease or from extreme youth. In such cases it is obvious that death may result from a blow from the hand administered by such, an assailant. These may be said to be extreme cases, hut there are others where the disparity is not so marked. The same element of fact is common to all. In the case at bar there was great physical inequality between the parties. The deceased was a young man, about 23 years of age, vigorous and strong, and the accused was an old man, with no right arm and his left hand “crippled.” He did not have the means of warding off a blow, and the court as a matter of law could not say that a blow from the hand of the deceased delivered upon the person of the accused would or would not have produced fatal results. That question should have been left to the jury, and, as in any other case where there is evidence tending to show that the accused took the life of the deceased in order to defend his own life, or to prevent a felony from being committed upon him, the jury should have been allowed to determine whether, under all the circumstances, the defendant was justified. This position is in harmony with the reasoning in Baldwin v. State, 75 Ga. 482, Strickland v. State, 98 Ga. 84 (25 S. E. 908), and Alexander v. State, 118 Ga. 26 (44 S. E. 851). The last two of these cases relate to the refusal of certain requests to charge; but in each instance the ruling clearly recognizes that it is for the jury to say whether, under circumstances of physical inequality, the weaker may defend as against a blow from the hand of the stronger by using a deadly weapon. In Alexander’s case, Mr. Justice Lamar, speaking for the court, said: “Under the limitations placed by Civil Code, §4334, on the powers of a judge, it is generally of doubtful propriety for him to enumerate a given state of facts and tell the jury what the effect thereof is, or what use .they must make of the facts. But it is forbidden for the judge to enumerate a state of facts, and then tell the jury what use they must make of them.” That is in effect what the court did in the case now under consideration. The charge of the court was open *322to the criticism made upon it, and the error was of such character as to require the grant of a new trial.