1. The court below charged the jury as follows: “He says, in the first instance, that he was enraged at the conduct of his wife, Rosa Lee Burley; that she had made certain statements to him with reference to her being kept by other men, and that she would not return to him; that they together with him would have to provide a support for her. He contends further outside of this outrage.” The defendant excepts to this charge, on the ground that he did not make the statement and contention attributed to him by the judge therein. The judge approved this ground with-the following statement: “The theory set out therein was by counsel for defendant presented to the jury in their argument.” Held:
(а) It is error for the trial judge to tell the jury that the defendant, who is charged with the murder of his wife, “says, in the first instance, that he was enraged at the conduct of his wife,” when it does not appear either from the evidence or Ms statement that he made any such statement or contention. This is so for the reason that the judge should not give to the jury an instruction not warranted by the evidence in the case or the statement of the defendant. Rooks v. State, 119 Ga. 431 (46 S. E. 631); Shannon v. State, 147 Ga. 172 (93 S. E. 86); Taylor v. State, 155 Ga. 785, 787 (118 S. E. 675).
(б) The fact that the theory set out in the above instruction was presented by counsel for the defendant in their argument to the jury did not justify the court in giving this instruction. Horton v. State, 120 Ga. 307 (47 S. E. 969); Tanner v. State, 145 Ga. 71 (88 S. E. 554); Key v. State, 21 Ga. App. 300 (94 S. E. 283). We would not, however, for this reason alone grant a new trial.
2. The trial judge gave the jury this instruction: “I charge you, gentlemen, that upon proof of the killing the law presumes both malice and motive.” The defendant excepts to this charge, on the grounds: (a) that it is an incorrect statement of the law; (6) that motive is a substantive fact which must be proved, and is not presumed as a matter of law; and (c) that it is an expression of opinion by the judge that motive had been proved. Held:
(a) Where the evidence adduced by the State presents two conflicting theories of fact, one based upon evidence showing the commission of the homicide without circumstances of justification, mitigation, or alleviation, thus indicating malice, and the other upon the proved statement of the defendant that he shot the deceased because she had a knife and was coming upon him, from which an inference might be drawn by the jury which negatived the existence of malice, it became a question of fact, to be determined by the jury, as to which one of these inconsistent theories was in accord with the real truth of the occurrence; and in such a ease it would be proper for the trial judge to instruct the jury, that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, excuse, or justification, and that it would be incumbent on the defendant to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him. Mann v. State, 124 Ga. 760 *850(53 S. E. 324, 4 L. R. A. (N. S.) 934); Warren v. State, 140 Ga. 227 (78 S. E. 836).
No. 4348. September 20, 1924.(6) This case presenting the two conflicting theories of fact, above mentioned, the above instruction, without qualification or explanation to the effect that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, excuse, or justification, and that the burden of rebutting such presumption would not rest upon the defendant where circumstances of alleviation, excuse, or justification appeared from the evidence adduced against him by the State, was erroneous. Surles v. State, 148 Ga. 537 (97 S. E. 538).
3. The defendant assigns error upon the failure of the judge “to charge the law of manslaughter,” on the ground that it was demanded by the evidence and the statement of the defendant. Held, that this is too vague and indefinite an assignment of error to raise any question for decision by this court. Wilson v. State, 156 Ga. 42 (118 S. E. 427).
4. The defendant complains that “the trial judge failed to charge the jury upon the law of accident, which was demanded by the evidence and the statement of the defendant, and the failure of the trial judge to charge upon the law of accident deprived this defendant of his legal right before the jury trying said case.” Held, that a charge upon this subject was not required, either under the evidence or the statement of the defendant, and the court did not err in failing to charge upon the theory of this homicide being committed by misfortune or accident.
Judgment reversed.
All the Justices concur, Gilbert, J., specially. L. D. McGregor, B. W. Ware, J. G. Davis, and J. P. Wilhoit, for plaintiff in error. George M. Napier, attorney-general, M. L. Felts, solicitor-general, and T. B. Gress, assistant attorney-general, contra.