1. In one ground of his motion for new trial the defendant complains that the court erred in ruling out the evidence of the witness Jim Bichardson, and in withdrawing the same from the consideration of the jury, said evidence being as follows: “ I had occasion to arrest Jim Lee Wells pretty soon after the killing, and he had a pistol when I arrested him.” This evidence appears in the brief of the evidence, which was duly approved by the court as being true and correct. Where complaint is made in a motion for new trial that the court ruled out certain testimony of a named witness, and in the brief of the evidence it appears that the witness did testify to the facts so ruled out, and both the motion for new trial and the brief of the evidence are duly approved by the presiding judge, this court can not hold that the brief of the evidence is incorrect, but must reconcile the two statements on the theory that, while at one time the court made the ruling complained of, at some stage of the examination the testimony was admitted. Hnder such facts, the ruling will not require the grant of a new trial. Woods v. State, 137 Ga. 85 (72 S. E. 908); Kent v. Central of Ga. Ry. Co., 144 Ga. 7 (85 S. E. 1017).
2. The defendant alleges that the' court erred in charging the jury as follows: “It is contended on the part of the defendant that the deceased had been guilty of frequent sexual intercourse with his wife. I charge you, gentlemen, where in a murder case the defendant sets up the defense that the homicide -was committed because the deceased had committed an act or acts of adultery with the wife of the defendant, it is incumbent upon the defendant to show that the killing was necessary to prevent the act of adultery, or to prevent the completion of the act after it had been begun. If you find from the evidence or the defendant’s statement that the act of adultery had been completed, and a reasonable time, sufficient for reason to reascend its throne, had elapsed before the homicide was committed, the killing would be attributed to deliberate revenge, and the defendant would be guilty of the offense *178of murder.” The errors assigned are: (a) that this charge injected into the case a contention and an issue not made either by the evidence or by the defendant’s statement, or by any inference to be drawn therefrom, and was hurtful and harmful to him, and tended to confuse and mislead the jury; (&) that the court instructed the jury to find the defendant guilty if in their opinion there had been time for reason to ascend its throne after the commission of the acts of adultery referred to by the defendant, notr withstanding the fact that no defense was urged for the killing on the ground of adultery; (c) that said instruction, when viewed in the light of the defendant’s statement showing his long knowledge of the acts of adultery by his wife, is an intimation by the court that the defendant was making an unsuccessful attempt to establish the contention that the killing was justified on account of such acts of adultery; (d) that the last sentence of this instruction directed the jury to find the defendant guilty if they should find from the evidence that a considerable period of time had elapsed since the acts of adultery between the deceased and the defendant’s wife, when the defendant in his statement admitted that a great period of time had elapsed in which he made no effort to resent the acts of adultery; (e) that the entire defense of the defendant was based upon self-defense; (/) that this charge conveyed to the jury the fact that the defendant was endeavoring to set up two defenses for the killing, one based upon adultery, when such was not the case, and was therefore inapt, hurtful, and misleading.
The defendant made a statement to the jury, in which he told them that he had been drafted into the military service and was sent to France. On his return he found that his wife had been guilty of acts of adultery which had resulted in the birth of a child. Iiis wife told him that the deceased, by persuasion and constant importunities, had induced her to yield to his lustful embraces, in consequence of which she became pregnant and was delivered of a child begotten of her by the deceased. Upon getting this information, he declined to go back to his wife or live with her, and had ever since lived separate and apart from her. On the day of the homicide he and the deceased met; and the latter walked up to him and said: “Eph, how come you didn’t speak to me just now when I spoke to you ? ” The defendant replied: “ I didn’t hear you say anything, and I didn’t say anything to you.” The *179deceased said: “You are a God damned liar, you heard me. You are just mad with me cause I went with Cora [wife of the defendant] when you were in the army; and I have been going with her since you came back. These shoes, I bought them with some of the money you sent back.” The defendant replied: “ That is all right; you are welcome to go with her and take her and live with her, and I don’t ever intend to go back and live with her as long as I live.” The deceased then said: “ What in the hell is the use of me having to take care of her, when I can go with her and have just as good a time as I want to without marrying her ? ” The defendant replied: “All right, you are welcome to stay with her and go with her all you want to. Is that what you stopped me here for, to curse and bulldoze me about what you done while I was in the army ? ” The deceased replied: “ I didn’t stop you for'a damn thing else.” The defendant said: “Well, all right, I will go along to church where I started; but I don’t care to talk to you at all concerning that, no way at all.” The deceased replied: “You had better talk now, because, if you don’t you are liable not to get no God damn chance.” The above interview took place in the morning. The defendant further stated that he and the deceased met that night. The deceased said to him: “Well, Eph, you must come up to see me sometime,” and the defendant replied: “ All right, I will, you must come.” The deceased made no reply. As he went down the road the deceased kept looking around at him. The deceased walked up by the side of a woman, caught her by an arm, snatched his pistol out of his left hip pocket and fired under his arm back at the defendant. ’ The first shot did not hit the defendant, who jumped out of the road and fell across a ditch on its side. As the defendant was struggling to get up, the deceased shot him again and hit him- in the leg, when the defendant pulled out his pistol and shot at the deceased as fast as he could, the shots taking effect and killing the deceased.
The instructions co’mplained of were not erroneous for the reasons assigned by the defendant. In a criminal case the defendant has “ the right to make to the court and jury such statement in the case as he may deem proper in his defense ” (Penal Code (1910), § 1036); and where the defendant in the exercise of this right made a statement to the jury, in which he told them that the deceased had been guilty of acts of adultery with his wife while he *180was in. the military service of his country in France, which resulted in the birth of a child begotten of the wife by the deceased, and that on the day of the homicide the deceased boasted to him of these illicit relations and that he could continue them, the. defendant will be held to have made this statement in justification or mitigation of tire homicide, although he did not expressly state or urge by his counsel that he killed the deceased on account of his acts of adultery with defendant’s wife; and the court did not err in giving to the jury instructions applicable to a homicide resulting from acts of adultery committed by the deceased with the wife of the defendant. While the court is not required to charge upon a theory of defense arising solely from the statement of the accused, in the absence of a timely written request so to charge (Lampkin v. State, 145 Ga. 40 (6)), the court is authorized to call the attention of the jury to a contention or theory of defense arising from the defendant’s statement and to give instructions pertinent to such theory, although the defendant may not expressly state that he relies on such theory of defense. The alleged grounds of error in the above instruction, that the “entire defense of the defendant was based upon the law of self-defense,” and that it was inapt and harmful, because it misled the jury into believing that the defendant was endeavoring to set up two defenses, one based upon adultery, are not well taken, the contrary appearing from the statement of the defendant to the jury in his own defense. The present case does not fall within the rulings made in Teasley v. State, 104 Ga. 738 (30 S. E. 938), Rooks v. State, 119 Ga. 431 (46 S. E. 631), Strickland v. State, 8 Ga. App. 421 (4) (69 S. E. 313), and Bennett v. State, 19 Ga. App. 442 (91 S. E. 889), to the effect that it is error for the trial judge to give to the jury an instruction wholly unwarranted by the facts in the case. The last sentence of this instruction is not erroneous, the court having fully instructed the jury upon the law of self-defense, and having instructed the jury to acquit the defendant if they found that he was acting in self-defense.
3. The verdict is supported by the evidence, and is not contrary to law.
Judgment affirmed.
All the Justices concur, except