concurring specially. 1. The verdict and judgment in this ease should be set aside and a new trial granted, but this should be done on the ground that the evidence, as it appears in .the record, does not authorize the verdict. The evidence presented by the State may be briefly summarized by saying that the corpus delicti was proved, and contradictory statements by the accused, the first statement being one made to a witness for the State to the effect that the deceased was killed by a strange negro, who had escaped; the second statement being, in effect, that the accused and the deceased were scuffling and the pistol went off and shot the deceased, and that he, in this manner did the killing. No presumption of malice can arise from this statement, because the accused exculpated himself in the same statement wherein he admitted the killing. This was not a confession of guilt. Futch v. State, 90 Ga. 472 (8), 480 (16 S. E. 102); Owens v. State, 120 Ga. 296, 299 (48 S. E. 21); Perkins v. State, 124 Ga. 6 (53 S. 17). The accused, in his statement on the trial, detailed circumstances making a clear case of homicide due to misfortune or accident, where there was no evil design, or intention, or culpable neglect.- In this statement he said that the deceased was advancing upon him in anger with a pistol, snapping the pistol; where*565upon the accused grabbed it, and in the scuffle the deceased was killed by his own pistol in his own hand. Just a few minute's previously the deceased had threatened the life of the accused. If the statement is to be believed, the accused is entitled to an acquittal, because under the circumstances therein stated he was guilty of no penal offense whatever. Penal Code, § 40.
2. I can not agree with my associates in the opinion that the court committed reversible error in giving in charge to the jury, under the facts of the case, Penal Code, § 40 in its entirety. To make the defense of accident or misfortune available to one who has killed another, it must not only appear that the homicide was the result of misfortune or accident, but it must also appear that there was no evil design, or intention, or culpable neglect. Wallace v. State, 95 Ga. 470 (20 S. E. 250). It is true that the facts of one case are rarely duplicated in the facts of another case; and it is unusual, to say the least, when it is possible to find, among our reported cases, an adjudication upon exactly the same facts. It is by no means unusual, however, to find among the ^decisions of this court an approval of the trial court where the same section of the Penal Code has been given in charge in its entirety and error has been assigned thereon. Roberts v. State, 138 Ga. 815 (2), 816 (76 S. E. 361); Jones v. State, 140 Ga. 478 (79 S. E. 114). In the Roberts ease the assignments of error are not reported in detail. Prom the original record it will be found that error was assigned because this entire section was given in charge, for the same reasons assigned in the instant case, and for a number of other reasons, all of which were adjudicated adversely to the plaintiff in error. Although one may not intend to kill another, if in fact he does kill him in such a manner as will imply an intention to kill, the law will declare the homicide to be done with malice aforethought, and consequently to be murder. Penal Code, § 67; Pool v. State, 87 Ga. 526 (13 S. E. 556); 1 Bishop’s New Criminal Law, § 327. “Malice is evil intent, which in law does not necessarily mean hatred, ill will or malevolence, but consists in any unlawful act wilfully done without just excuse or legal occasion, to the injury of another person.” 1 Wharton’s Criminal Law (11th' ed.), §§ 137, 146. Under our own decisions malice is implied where one kills another under circumstances which the law neither justifies nor in any sense mitigates. Therefore, to eon*566stitute pure accident or misfortune, it is necessary that there should be no evil intent in a case of homicide. In the case before us no evil intent or culpable neglect appears, and it follows that the defendant is entitled to an acquittal, under section 40 of the Penal Code. Surely the court' did not err in charging that section in its entirety. The charge suggested by the majority of this court in the opinion .is founded on section 40, and on no other authority.