1. The State contended that Benjamin F. Dixon was a deputy United States marshal, and that he, assisted by M. C. Towery, sheriff of the county, was attempting, at the time of the homicide, to execute certain warrants against George and Decatur Crawley, defendants. One ground of the motion for new trial assigns error upon the admission of testimony to the effect that Dixon held the position of Deputy United States marshal, over the objection that the testimony was a mere conclusion of the witness. After stating Dixon’s official position, the witness further testified: “ He acted as deputy marshal, and arrested United States prisoners. “ He was doing business for the government. Ho had been for some time.” Another ground of the motion for new trial assigns error upon the admission in evidence of the warrants against George and Decatur Crawley. The warrants and affidavits were substantially alike in each instance, and it will suffice to state the contents of one. The caption was: “ United States of America, Northern District of Georgia. Office of United States Commissioner. At Blairsville, Georgia.” The affidavit proceeded: “Before me, W. C. Carter, a Commissioner duly appointed by the District Court of the United States of America, for the Northern District of Georgia, . . personally came O. W. Barber, Agt. Dept. Justice, who being duly sworn deposeth and saith that on or about the 1st day of Sept., 1918, within the Northern District of Georgia, one George Crawley did then and there carry on the business of a distiller without having given bond as required by law . . Yio. the Selective Draft Law, and contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States. [Signed] Omar W. Barber, Spt. Agt. Dept, of Justice. Sworn to and subscribed before me, this 27th day Sept., 1918. W. E. Candler, U. S. Com. Northern District of Georgia.” The warrant issued upon the affidavit contained a similar caption, and proceeded:' “The President of the United States of America. To the Marshal of the United States for the Northern District of Georgia, or his Deputies, or either of them. Whereas, complaint on oath has been made to me, charging that, on or about the 1st *590day of Sept., 1918, within the Northern District of Georgia, one George Crawley did then and there . . vio. Selective Draft Law: Now, therefore, you are hereby commanded, in the name of the President of the United States of America, to apprehend the said George Crawley and bring him forthwith before me, or some Judge or Justice of the United States, or other United States Commissioner, that he then and there may be dealt with according to law for said offense. Given under my hand and seal, 27 day of Sept., 1918. W. E. Candler, U. S. Commissioner. (Seal).” The objections urged to the admissibility of the warrants were: (1) that the papers had not been properly identified; (2) that there was "no supporting affidavit;” (3) that the warrants do not set forth any crime against the United States of America or the State of Georgia. The sheriff testified that he and the deputy marshal had the warrants above mentioned, at the time they were attempting to make the arrest. The warrants were not in all respects regular, but they were sufficient authority to the officers for arresting the offenders for violation of the selective-draft law. When considered in connection with the context, there was no error in permitting the witness to testify that Dixon was deputy United States marshal, or in admitting the warrants over the objections stated. In another ground of the motion error is assigned upon the admission of the testimony of the sheriff, to the effect that after the deceased was shot his intestines protruded from the wound. The testimony was admitted over the objection that it was irrelevant and prejudicial; as the witness had previously stated that the wound was mortal. This ground of the motion is without merit.
2. A witness was permitted to testify that ho had seen “ some red clothes hanging up, looked like handkerchiefs around the yard, three or four.” Also, that he had heard Decatur talking a "right smart about it,” referring to the local selective-draft board in the county. Also, that when he was in the Crawleys’ cornfield, Prank got a notice and was speaking of mailing a paper to the local board. Witness thought that Decatur was present, but was not certain. Felix'said: “I would not mail it and I would not go.” “Lawrence says, ‘Frank, you better go; you are not too old,’ and Felix says, ‘What in the hell do you know?’ and -Lawrence says, ‘That is my father’s old record; it is all I have to go by.’” The witness said, “ Boys, we ought to all go ” and register. Also, that witness *591had heard Decatur talk about his brother having gone to Camp Gordon; “said he was at Camp Gordon, and asked me about my brother, and I asked them about theirs,” and “said they had not heard from George in a long time.” All of this testimony was objected to in the several grounds of the motion, on the ground that it was irrelevant. The ground of objection was well taken, and the evidence should have been excluded; but it does not appear to be harmful; and a new trial will not be granted on the error alone of admitting this evidence.
3. One ground of the motion for a new trial is as follows: “Because the court erred in failing to charge the law of circumstantial evidence, as contained in section 1010 of the Penal Code, to wit: ‘To warrant a conviction on circumstantial evidence the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other hypothesis save that of the guilt of the accused.’ Defendants contend that under the evidence three of tlie defendants necessarily could not have been convicted except upon the theory that a conspiracy existed between all of tlie parties, and that the proof of conspiracy necessarily rested upon circumstantial evidence, there being absolutely no direct evidence that any conspiracy did exist; and the court, having charged tlie law applicable to a conspiracy, should have charged also the law of circumstantial evidence.” As to this ground the opinion of the majority is as follows:
The four defendants were tried jointly. The evidence is directly to the effect that tlie four defendants were at the house at the time of the homicide, and that two of them shot the deceased, one of them indicting upon the deceased a mortal wound. Another of the defendants was, at the time of the homicide, engaged in a struggle with the sheriff, the companion of the deceased, while the fourth defendant was actively interfering with the sheriff in his attempt to open a door leading into the room where the shooting occurred and to go to the rescue of the deceased. There was no request to give in charge the provision of section 1010 of the Penal Code, quoted above. The case against the defendants is not dependent solely upon circumstantial evidence; and, under the repeated rulings- of this court, the failure to give in charge the rule relating to circumstantial evidence was not error. If the jury believed beyond a reasonable doubt that one or more of the *592defendants shot and killed the deceased without justification, aud if they believed that the other defendants were present aiding and abetting the slayer or slayers in the commission of the homicide, they would have been authorized to convict such defendants. The case against neither of the defendants depended entirely on circumstantial evidence. Even if the State depended upon circumstantial evidence to establish an essential fact, to wit, the conspiracy, in order to connect one or more of the defendants with the commission of the homicide, the mere failure to charge the rule above stated, in the absence of a request so to do, was not error requiring the grant of a new trial.
The opinion of the writer is as follows: The deceased received two gunshot wounds, only one of which was necessarily mortal. The sheriff testified that ho saw both George and Decatur Crawley shooting at the deceased at the same time; and each of them admitted in their statements to the jury that he had shot the deceased, neither admitting that he had inflicted the mortal wound. Such evidence would not show which of them inflicted the mortal wound. In order to convict either for the homicide under these circumstances, it would be necessary to prove that they were in conspiracy. McLeroy v. State, 125 Ga. 240 (54 S. E. 125); Scroggs v. State, 147 Ga. 737 (95 S. E. 226); Fudge v. State, 148 Ga. 149 (95 S. E. 980). The same may be said of Eosa Crawley and Blain Stewart, neither of whom shot at the deceased, and therefore could not -have been the actual slayer. Both were present and engaged in conduct tending to show that they were aiding and abetting George and Decatur Crawley in such manner as would show a conspiracy. While there was positive evidence of circumstances tending to show a conspiracy, such positive evidence did not identify with certainty any one of the defendants as the actual slayer of the deceased; and in order to hold one or all of them responsible for the crime, it was necessary to show that the homicide was committed by one of the defendants while in pursuance of a conspiracy. There was no positive evidence of an agreement to kill the deceased; and in order to show a conspiracy, it was necessary to rely on the circumstances of concert of action among the defendants, which, as circumstantial evidence, pointed to the existence of a conspiracy. Such being the case, the court, without request, should have charged the law applicable to cases of cir*593eumstantial evidence. Weaver v. State, 135 Ga. 317 (69 S. E. 488); Baynes v. State, 135 Ga. 219 (69 S. E. 170); Fudge v. State, and Scroggs v. State, supra.
4. One theory of the defense was that the deceased made a deadly assault on George and Decatur Crawley by shooting at them with a pistol, when they did not know that he was an officer trying to make an arrest, and when they were not attempting to resist or evade arrest, and deceased was shot in the resistance of such deadly assault. This theory was based entirely on the statements made by two of the defendants before the jury. The judge charged generally upon the law of justifiable homicide, but did not charge with réspect to the contention stated above, to the effect that the defendants would not be guilty, if, being assaulted in the manner indicated, they shot without knowing that the deceased was an officer attempting to make an arrest, or that it was the duty of the officer under the circumstances to inform the defendants of his purpose to make the arrest. The eleventh and twelfth grounds of the amended motion for a new trial complain of the omission to so instruct the jury. Conceding, without deciding, that the grounds of the motion for a new trial stated correct principles of law, as they depended entirely upon the statements of the prisoners made before the jury, and there was no written request for a charge as contended, such grounds do not show sufficient cause for reversal.
5-8. The rulings announced in the fifth, sixth, seventh, and eighth headnotes do not require elaboration.
Judgment affirmed.