dissenting. 1. In the headnotes I have expressed the opinion of the majority of the court; but as I can not agree to the rulings in the first and third headnotes, I can not concur in the judgment of affirmance. I am of the opinion that the judge erred in overruling the motion for a new trial, and that the accused is entitled to have a trial in which there will be no such expressions by the court as are complained of in the first and second special grounds of the motion for a new trial, and a trial without such conduct on the part of the counsel for the State as is referred to in the third headnote. One accused of crime is entitled to a trial in which there can be no doubt as to whether the verdict was affected by untoward incidents such as would usually be prejudicial in less important matters than the issue of life or personal liberty. Hpon the same theory upon which it has been held that while dissevered excerpts from a charge, considered apart from their context, may seem to be erroneous, when in fact the charge considered as a whole, including the portions of which complaint is made, is obviously free from error, so, conversely, my experience has convinced me that in many cases it has happened that though perhaps no single assignment of error considered by itself alone would require a reversal of a judgment refusing a new trial, because under the rules of jurisprudence the act or ruling, without more, of which complaint is made is not deemed necessarily prejudicial, nevertheless, when one matter which would not of itself compel a new trial (though it can not be denied that the trial would have *647been more regular had it not occurred) is followed by another and another of the same kind, it is apparent, considering all of the irregularities together, that an atmosphere was created in which a feeling of impartiality could not survive. It was this thought that led Bleckley, Chief Justice of all Georgia judges, past, present, and prospective, to remark, in a case of the nature to which we have referred, that he did not like the complexion of the case, and to adjudge that a real, fair trial should be had. It is my opinion that when the learned trial judge, in ruling upon the objection of the solicitor-general to allowing a witness to testify who had been present while other witnesses testified, although the witnesses had been ordered to be sequestered and had been sent beyond the hearing of the court, instead of ruling directly upon that proposition, addressed to counsel for the defendant the remark, “Well, go ahead and use him; you seem to be fishing anyhow,” it would be evident to the solicitor-general that the court was of the opinion that in overruling the objection of State’s counsel he was doing no injury to the State, for the reason that there was only a possibility that there would be any evidence to come from that witness which would counteract the case already made in behalf of the State. And the use of the word “anyhow,” in concluding the remark, to my mind contains a pregnant intimation to one unlearned in the law that the court might have sustained the objection of State’s counsel unless he had been of the opinion that the evidence would be unimportant, and therefore the use of the language, “Well, go ahead and use him; you seem to be fishing anyhow,” would likely give the impression that the judge, though not intending to convey any opinion, was really of the opinion that the defendant ought to be convicted. He admits the testimony upon the ground that it is not likely that any testimony in behalf of the defendant can be secured, and that defendant’s counsel is himself aware of the hopelessness of his case and for that reason has gone to fishing, as the common expression is among lawyers when counsel does not know what a witness will testify, and yet is in such straits for testimony that he is willing to try any resource. I am of the opinion that the expression comes clearly within the inhibition of section 4863 as an intimation of opinion upon the evidence; but under the principle above referred to it certainly must be doubtful whether it was not or could not *648have been so construed. If the jury could have been impressed (and not because it is certain that they were impressed) with the idea that the trial judge thought the guilt of the accused had been established, it is my opinion that the doubt should be resolved in favor of one accused of a heinous crime, though perhaps in a particular case, and if standing alone, the error might not require the grant of a new trial.
2. But during the examination of the same witness that the court permitted to testify because the defendant’s counsel was only “fishing anyhow,” and when he had answered that he had found certain injuries on the defendant’s ankles and legs, and defendant’s counsel had elicited from the witness an answer that this could have been caused by falling through the porch or flooring, something like that, and the solicitor-general moved to rule out the answer of the witness because it had “absolutely no connection with the case — there is no proof that this injury was caused by him falling through a hole in the floor or any other hole that he fell through,” the court did not rule upon the objection at all. Instead he asked the witness a question, “Did you say he had an .abrasion on both legs,” to which the witness replied, “Yes, sir.” The court has the right to ask witnesses questions. The defendant was contending that his left foot was caught in a small hole on the porch, thus causing an accidental discharge of the gun. It seems to me that it was possible and probable that when the court, instead of ruling upon the objection made by the solicitor-general, turned to the witness and proceeded to call attention to the fact that the defendant had an abrasion on both legs, as and when he did, tended necessarily to impress the jury that the court was of the opinion that the defense of accidental shooting was manufactured. Many mtpi sit upon juries to whom such service is not unusual, and ordinarily expect to hear the court rule upon objections to testimony. The defendant had no testimony that he was injured by falling through a hole, and to that extent the objection of the solicitor-general was correct; but the defendant had made a statement in which he stated that by reason of one of his feet getting caught in the hole, and this causing him to fall, the gun was accidentally discharged. The court, instead of ruling upon the objection made by State’s counsel, which it seems he would naturally have had to overrule, because the credibility of the defend*649ant’s statement is as much subject to the consideration of the jury-in attempting to reach the truth of the case as all or any part of the sworn testimony, proceeded to prove by the witness that he had an abrasion on both legs. I do not mean to say that the court has not the right to ask questions of the witnesses; but it must be a matter of doubt whether, in asking the particular question under the circumstances set forth, in the record, the jury was not impressed that the court felt that it was his duty to establish by this witness that the story of falling through the hole was manufactured. It may be that this expression would not of itself require the grant of a new trial; but this circumstance transpired on the heels of that of which complaint is made in the first ground. It was a departure from the usual procedure of a presiding judge; and can we be sure that it worked no prejudice to the defendant— that it did not diminish his right to an impartial trial ?
3. Conceding, but not deciding, that the court did not err in omitting to charge the law of manslaughter as contained in section 6'4 of the Penal Code, I am of the opinion that the court should have sustained the fourth special ground of the motion for a new trial. It is perfectly plain that the solicitor-general was trying to get to the jury evidence which he well knew was inadmissible. I say well knew, because, not only is the able solicitor-general well learned in the law, but the court had ruled that testimony as to the contention of the State’s leading witness as to the reasons why he had been convicted of incest, as derived from witnesses who had said they were sorry they had testified against him, was inadmissible. And yet, as appears from the statement certified in the motion for a new trial, the court permitted the solicitor-general to indirectly bring this matter to the attention of the jury three different times, though under the rules of court the act of State’s counsel placed him in contempt of court as proceeding in direct opposition to its ruling, and attempting, after the court’s decision, to invoke another ruling. The court took no notice of the transgression, though defendant’s counsel repeated his objection. In my opinion this could not have failed to be prejudicial to the accused; but even if it was not certainly prejudicial, who can certainly say that it was not? Therefore, in the doubt as to whether it was not prejudicial, the defendant, should be accorded a trial free from such an incident, almost unparalleled in our records.
*6504. The evidence showed that the accused killed his brother-in-law in attempting to shoot the father of the deceased; the father-in-law of the accused; and the State’s case largely depended upon his testimony. A quarrel arose about the accused giving whisky to a child of his wife. The evidence showed that this child was probably the offspring of incestuous relations between this State’s witness and his daughter, the wife of the accused; for there was introduced in evidence the verdict of a jury in Walker County, finding the father guilty of incest with this daughter. Quite a volley of words were passed between the accused and the State’s witness, and after the deceased (son of the witness) came upon the scene he was shot by the accused and instantly killed. The issue in the case was whether the accused would have been justified if he had killed the witness, or whether the killing of the witness would not have been justifiable. The defendant claimed that the killing was accidental; and that though he had been compelled by his fear of hi's father-in-law to run from the' house and was attempting to find safety in flight, and though he had a loaded gun in his hand, he would not have shot as and when he did had not his foot slipped into a hole in the floor of the porch, which caused the gun to fire while his hand was upon the trigger merely as a precaution looking to the use of the weapon in self-defense if it should become absolutely necessary. The jury would have been fully authorized to have acquitted the defendant if they believed his statement. His defense depended solely upon his statement, and for that reason it was peculiarly important to his right to a fair trial that his credibility should not be disparaged in any other way than that provided by law, and certainly not by any conduct or circumstance which might lead the jury to the conclusion that the court thought he was guilty.