1. The'defendant was indicted for the murder of Ida Daniels. The proof showed that the real name of the deceased was Ida Daniels, but that she was generally known by the nickname of Sister. Held, that this was sufficient proof of the allegation of the indictment that the person killed was Ida Daniels, it being permissible to designate in the indictment the person killed by her proper name, if known, or by some name by which she was commonly and generally known. When the deceased is referred to in the indictment by her proper name, proof of such name is sufficient, although the evidence discloses that the deceased was commonly and generally known by another name. Irwin v. State, 117 Ga. 722 (45 S. E. 59).
2. The evidence authorized a verdict of guilty of murder.
3. The court charged the jury as follows: “You look to all the evidence and facts and circumstances in this case, and, after considering the defendant’s statement, determine whether the defendant is innocent in this case.” The exception to this charge is, that it is not the province of the jury to determine whether the defendant is innocent, but to determine whether the State has carried the burden of showing the guilt of the . defendant beyond a reasonable doubt. The judge fully instructed the jury upon the presumption of the defendant’s innocence, and stated that the burden rested upon the State to establish his guilt beyond a reasonable doubt, and that if such doubt existed in their minds they should give him the benefit of such doubt and acquit him. Held, that this instruction, in view of the court’s instructions upon the presumption of the innocence of the defendant, and upon the burden resting upon the State to prove his guilt beyond a reasonable doubt, and of the further instruction of the judge to the jury, that, if such a doubt existed in their minds, they should give the defendant the benefit thereof and acquit him, was not so erroneous, if error at ail, as to require the grant of a new trial. Innocence and guilt are involved in every criminal ease. In the eye of the law innocence is presumed, and always exists if the State ■ fails to rebut the presumption of its existence and to prove guilt beyond a reasonable doubt. Clearly the jury had the right to determine whether -• the defendant was innocent; and this instruction, laying down the method of reaching a conclusion on this matter, was not erroneous, as the issue was one of guilt or innocence. This instruction was not open to the objection that it required the defendant to prove his innocence beyond a reasonable doubt. In Dorsey v. Slate, 110 Ga. 331 (35 S. E. 651), the charge was such that the jury might have been impressed with the idea that the defendant had to establish his defense beyond a reasonable doubt.
'4. The defendant excepts to this charge of the trial judge: “I charge you, *781gentlemen, that if two parties intentionally agree to have a fight and to engage in mutual combat with deadly weapons and in such fight or mutual combat one kills the other, the person so killing would be guilty under the law of the crime of murder or voluntary manslaughter.?’ The above excerpt is only a part of the legal principle embraced in one para-' graph of the charge; and while if standing alone it might seem to be objectionable for reasons which might be assigned, when taken .as a Whole it is unobjectionable. The error in this excerpt assigned by the defendant is that this instruction was not authorized by the evidence. There were .in evidence some facts and circumstances tending to show that the defendant and one Will Clark harbored bad feelings toward each other growing out of their illicit relations with the deceased, and that, meeting in the presence of the deceased, and both being armed with pistols, after some words had passed between the defendant and the deceased they drew their weapons and began to shoot at each other, when the deceased was killed by shots fired by the defendant. Thus it became necessary to determiné whether the defendant would have been justified if he had killed Clark, and, if not justified, whether he would have been guilty of murder or manslaughter if he had succeeded in killing Clark; in order to determine whether he was justified in killing the deceased, and, if not justified, whether he was guilty of murder or manslaughter in killing the deceased. Under these facts and circumstances, the exception to this instruction is without merit. Being suddenly aroused by. anger, and mutually intending to fight, the law of mutual combat was involved. Gann v. State, 30 Ga. 67; Caruthes v. State, 95 Ga. 343 (22 S. E. 837); Findley v. State, 125 Ga. 579 (54 S. E. 106); Giles v. State, 126 Ga. 549 (55 S. E. 405); Buchanan v. State, 153 Ga. 866 (113 S. E. '87). Mutual combat sufficiently appears where it is shown that there was a mutual intent by the accused and' the deceased to fight and one or more shots were fired. Bailey v. State, 148 Ga. 401 (96 S. E. 862).
5. The court gave in charge to the jury the principle of law on mutual combat embraced in section 73 of the Penal Code. The exception to this charge is, that, under the evidence, the case was one of murder orv justifiable homicide, and for this reason this instruction was without evidence to support it, and tended .to confuse the jury. Held, that there was some evidence to support this instruction, under the theory'dealt with in the preceding headhóte. • Vi '
6. The court charged the jury as.follows: “The defendant in this ease‘contends that Will Clark was shooting at him, and that in order to save his own life, or to prevent a felony being committed upon him, that he shot the said Will Clark in defense of his own life, and that he did'not ■ shoot the deceased and had no intention of killing her.” This charge is excepted to, (a) because the defendant did not contend that he shot át ' Clark and not at the deceased, (h) becarise this charge amounted to an . instruction that the jury should not believe the defendant’s .statement, ' and (e) because it amounted to an expression of opinion by the. court that the defendant’s statement was untrue. Held, that these exceptions ■ are without merit. That this instruction stated one of the' contentions ,. of the defendant is conclusively shown by his exceptions to another in-
*782No. 3993. March 12, 1924.struction of the court to the jury, which will be dealt with in the following headnote.
7. The court charged the jury as follows: “The defendant in this case contends that he is not guilty. He contends that Will Clark was shooting at him, and that in order to save his own life and to prevent a felony being committed upon him that he shot the said Will Clark in defense of his own life, and did not shoot the deceased -and had no intention of killing her. Gentlemen of the jury, you look to all the evidence, facts and circumstances of the case, and after considering the defendant’s statement determine whether or not the contentions are true. ” The errors assigned on this charge are: (a) the failure of the court “to charge the jury that if the jury found that Will Clark was shooting at the defendant, and that, in order to save his own life or to prevent a felony from being committed upon him, he shot at Will Clark, and that in so doing he killed the deceased, . . the-jury would be authorized to acquit him;” and (&) the failure of the court to charge section 76 of the Penal Code. On this subject the court charged the jury as follows: “If you find that Will Daniels, the defendant in this ease, shot at Will Clark and killed Ida Daniels, the deceased, the killing of Will Clark, if he had killed him, would have been justifiable, then the killing' of Ida Daniels would be justifiable. If the defendant shot at Will Clark and killed Ida Daniels, and the killing would have been voluntary manslaughter had he killed the said Will Clark, then the killing of Ida Daniels would be voluntary manslaughter. If the defendant shot at Will Clark under such circumstances that the offense would have been murder had he killed him, then the killing of Ida Daniels, the deceased, would be murder if the defendant killed her.” Held: (1) That, in view of the instruction of the court to the jury last quoted, the first exception to the charge complained of is without merit. (2) That the excepion to the charge complained of, that the court did not charge section 76 of the Penal Code, is without merit. Failure to give another appropriate instruction in connection with the instruction excepted to does not render the latter erroneous. Hays v. State, 114 Ga. 25 (4) (40 S. E. 13); Bertha Mineral Co. v. Simpson, 154 Ga. 672 (2) (115 S. E. 75).
Judgment affirmed.
All the Justices coneur.