The evidence relied on by the State for a conviction tends to show that the accused committed murder, whereas the statement of the accused and the evidence introduced in his behalf tend to sustain the defense of justifiable homicide. The law of voluntary manslaughter was not involved. McBeth v. State, 122 Ga. 737 (50 S. E. 931). The court did not err in failing to instruct the jury in regard thereto. No error is assigned upon any ruling during the trial, nor upon any charge or any other omission to charge the jury. The evidence authorized the verdiet.
Judgment affirmed.
All the Justices concur, except Pish, G. J., and Atkinson, J., dissenting,' and George, J., absent.Fish, C. J., and Atkinson, J. There was evidence which would have warranted a finding that the defendant and the deceased, upon a sudden quarrel, each being armed with a deadly weapon, mutually engaged in a mortal combat, each using his weapon and intending to kill the other therewith. Under such circumstances it was the duty of the judge, without request, to give in charge to the jury the law of voluntary manslaughter as related to the doctrine of “mutual combat,” and the omission to do so was cause for new trial, the accused having been convicted of murder. Waller v. State, 100 Ga. 320 (28 S. E. 77); Butt v. State, 150 Ga. 302 (103 S. E. 466).
For the defendant Swain testified, that as he came by the shelter they shot, and when he looked under the shelter Ad and Walter were both shooting. He did not know who shot first. He kept on going. It was no time between the first shot and the next one. They just kept on shooting. After the first shot he saw them both shooting; did not know how many shots were fired, or how many pistols were shooting; did not know that Ad shot Walter; did not see it. He was the only man witness saw with a pistol; did not see anybody take a pistol from Walter after he was shot. — Young testified that after the shooting, after they had put Walter into the buggy, he saw a man (stranger) reach into Walter’s pocket, take therefrom a pistol, and put it into his own pocket.— Holden testified : “ When the first shot fired I had my back turned, and then I turned and looked up toward the shelter, and it looked like Ad was fighting smoke or dust or something with both of his hands. Then I saw him get his gun out of' his pocket, and he started to shooting. . . I did not see Walter do any shooting. I could see where he was after I looked around. . . I did not see Walter with a pistol. I don’t know he had a pistol. . . I didn’t see any pistol taken from his pocket. I didn’t stay there. I don’t know who fired the first shot. . . Ad shot so fast I couldn’t count the shots.”— Walker testified: “ I wasn’t paying them no attention until I heard the noise. I saw Walter with a pistol. I saw Walter shoot his pistol. Walter shot first; he shot before Ad shot. When he made the first shot I saw Ad fighting the smoke out of his face, and I . . went toward the shelter. I never did see Ad shoot at all. I was not looking at him all the time. When Walter shot I . . went to the church. I didn’t see any other shooting at all. I heard it, but I didn’t see it. . . I didn’t stay there no time after "Walter shot. I left right then. I saw Ad fighting smoke, and I looked and went on toward the church. Ad was fighting smoke with both hands. If he had a pistol I would have seen it. Ad was standing, facing "Walter. Walter did not have his back to him, kinder side to him. . . The first thing that attracted my attention there was a shot. I didn’t see anything. I then saw Walter shoot; that was the next thing I saw. I saw Walter shoot at Ad with a pistol. I saw Ad fighting to get out of the smoke, with his hands up this way, with his back to me. T heard words down there. The first shot I saw Walter shot it.”— Ogletree testified that he was about 250 yards away, and thought he heard eight or ten shots fired; and that all of them were close together, except that there were about fifteen or twenty seconds between the first and the others.— The accused stated that he went to the shelter to get a drink of liquor from Dunn, and while so doing Walter walked up and said, “ Don’t sell that [vile name] a drink.” Continuing, accused stated: “ I said, ‘ Keep your mouth out of my business,’ and he said,f Don’t you like what I said? ’ and I said, ‘ No I don’t,’ and that time he come out with his pistol. Just as he threw it up I turned my head that way, and the smoke was all in my eyes. I knocked the smoke out of my face and when he made his next shot, and when I got mine out I let in on him.” Alvin G. Goluclce and J. A. Beazley, for plaintiff in error. B. A. Denny, attorney-general, B. G. Norman, solicitor-general, and Graham Wright, contra.