dissenting. In the opinion a new trial is granted upon four grounds. The first is, that the court erred in refusing to permit a witness for the State, upon the cross-examination, upon objection of counsel for the State, to answer the question whether the accused was accustomed to carry a gun. The second is, that the court erred in failing to charge the law of voluntary manslaughter, embraced in sections 64 and 65 of the Penal Code. The third is, that the court erred in instructing the jury that if *519the evidence in behalf of the State convinced them beyond a reasonable doubt that the defendant, with a pistol, killed the deceased, as charged in the indictment, the law would presume, until the contrary is shown, that the killing was malicious, and that, unless the evidence in behalf of the State showed justification, then it would devolve upon the defendant in this case to satisfy the jury that the killing was justifiable. The fourth is, that the court, in the instructions to the jury, confused the principles of self-defense set out in sections 70, 71, and 73 of the Penal Code. I deal with these questions in the order named.
1. Did the court err in the first of these rulings? It is true that when a homicide is committed with a deadly weapon, and the slayer is indicted for murder, it is competent for him to prove that he came by the weapon for an innocent purpose on the occasion. Aaron v. State, 31 Ga. 167. If the possession of a weapon by the slayer when the homicide is committed, and the circumstances under which the slayer came by the weapon, do not appear, he can introduce evidence to show that he had the deadly weapon for an innocent and not for an evil purpose. When, however, the circumstances attending the commission of the homicide all appear, and they show how and for what purpose the slayer procured the weapon, the mere fact that he was in the habit of carrying the deadly weapon woiild be irrelevant. In the instant case it appeared from the evidence that the defendant was a man over six feet tall and weighing 180 pounds; that he struck the deceased while he was squatting down, and without provocation. They then grappled. At that time the defendant was unarmed. Bystanders separated them; then the defendant went to his automobile, got his pistol, turned and immediately began to shoot at the deceased, his last shot proving fatal. Here we have undisputed proof of the manner in which the defendant obtained possession of his pistol, and the purpose for which he got it. In these circumstances it was wholly immaterial whether or not he was in the habit of carrying a deadly weapon. So I do not think that the trial judge erred in this ruling. Even if this evidence had been admissible, its probative force is so slight that a new trial should not be granted in a clear case of an unprovoked and brutal murder.
2. Did the court err in failing to give in charge the principles of law applicable to voluntary manslaughter, as set out in sec*520tions 64 and 65 of the Penal Code? In the ground of the motion for new trial in which this question is raised, the defendant does not clearly and distinctly raise the question whether the court erred in failing to charge the law of voluntary manslaughter applicable in cases of mutual combat. His exception is to the failure of the court to charge the principles embodied in sections 64 and 65 of the Penal Code. It is true that in this ground, after making this specific exception, the movant says that the doctrine of voluntary manslaughter was involved in the trial of the ease, from the testimony of the sworn witnesses, from which the jury would have been authorized to find that the encounter between the defendant and the deceased, resulting in the death of the latter, was the result of a sudden heat of passion on the part of both, and that there was a mutual intention to fight with deadly weapons. While I do not think that there is any clear and specific assignment of error growing out of the failure of the court to charge the law of voluntary manslaughter, applicable to a homicide growing out of mutual combat, I shall deal with this ground of the motion as if proper assignments of error were made upon both aspects of this question.
In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Under the evidence there was no actual assault by the deceased upon the defendant.! It is true that evidence of such an assault may be found in a mutual intent to fight, and in the fact of an approach by the decedent to the defendant in furtherance of this design, where it was not necessary for him to do so in self-defense. Ray v. State, 15 Ga. 223; Buchanan v. State, 153 Ga. 866, 870 (113 S. E. 87). There was no attempt by the deceased to commit a serious personal injury on the defendant. There were no other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. The defendant unjustifiably attacked the deceased, by striking him with his fist. When struck, the deceased was squatting down, and the defendant was standing up over him. The deceased, as we have seen, was a man over six feet tall and *521weighing 180 pounds. He struck the deceased with such force that the latter was dazed. The defendant struck the deceased three times. After the first blow was struck, they grappled and tussled. There is no evidence that the -deceased in this tussle struck the defendant, or attempted to commit any serious personal injury on the slayer. What the deceased did was purely in self-defense, against an unprovoked and outrageous assault. There were no other equivalent circumstances to justify the excitement of passion on the part of the slayer, and to exclude all' idea of deliberation or malice, either express or implied. Consequently there was no evidence requiring a charge upon the law of voluntary manslaughter, and the failure of the court to charge upon that subject was not error. Felder v. State, 149 Ga. 538 (101 S. E. 179); Evans v. State, 151 Ga. 434 (107 S. E. 38).
Was there any evidence of a mutual intention to fight? After the defendant struck the deceased, and they grappled, they were separated by bystanders. After this separation the deceased drew his pistol. He held it by his side. He did not point it at the defendant. He made no effort to use it in'any way. Evidently he drew it for the purpose of defending himself against any further attack from the defendant. He said nothing that indicated that he intended to use it, or intended to fight. The bystanders told him to put up his pistol, which he did. There is some difference in the testimony for the State as to the manner in-which he put the pistol up. Some of the witnesses testified that when told to put it up the deceased himself put the pistol in its holster. One of the witnesses for the State testified that he pushed the pistol into the holster. The bystanders shoved the deceased into the hallway of the' garage. The defendant demanded that the bystanders who held him, after the parties were separated, should turn him loose. He pulled loose, went immediately to his automobile, without looking back to see what the deceased was doing, got his pistol, whirled around and immediately began to shoot at the deceased. He shot a number of times. The deceased was retreating down the hallway of the garage when the defendant began to shoot. It is true that the deceased, after the defendant began to shoot at him, drew his pistol: It is inferable that it was his intention to use it in his defense against the murderous assault of the defendant, but for some reason he did not. The deceased did not *522fire a shot. The defendant shot a number of times. All of the shots of the defendant, except his last, failed to take effect. Before firing the last shot he took more deliberate aim. This shot struck the deceased, inflicting a mortal wound, of which he died. Nothing that the deceased said or did indicates, or tends to indicate, that it was his intention to engage in mutual combat with the defendant. All he did was done defensively against the deliberate and unjustified acts of the defendant. When a person is unjustifiably attacked and he defends himself, he can not be said to be engaged in mutual combat. The exercise of the right of self-defense does not make a party a mutual combatant. Otherwise the principle embraced in section 73 of the Penal Code would be applicable in every case when a person unjustifiably and feloniously attacked undertook to defend himself. Ray v. State, 15 Ga. 228 (5) ; Buchanan v. State, supra. Where the accused was the aggressor, he can not justify the killing by showing that the deceased was in the act of drawing his pistol to protect himself. Bowden v. State, 126 Ga. 578 (3) (55 S. E. 499). In his statement the defendant gave this account of the fatal rencounter: “I saw Johnny G. [the deceased] there in front of the garage. I drove up right to the edge of the curbing, my car stopped in two feet of the curb, right in front of the door, the main entrance, got out of my car and walked up to where they were at. As I was walking up I said, ‘Johnny G., have you seen Mr. Tunison? He said, ‘No,’ and I said, ‘Well, you just going to keep hiring my hand anyway, are you ?’ and he made a pass like he was going to get a pistol, and I hit him, and we clinched, and I hit him several licks in the face while we were clinched, and they separated us and they pulled me back up the street. He run backwards and jerked his gun out and throwed it on me. The others turned me loose. He throwed it on me and Wink Yaughan jumped between us and grabbed him and said, ‘Don’t do that; let’s don’t have none of that here,’ and I just stood there. I didn’t have anything in the world in my hand, no pistol about me, and he pushed him on around the corner of the door, back in the garage, and I was still standing about ten feet above the door. My car was standing out in front, and he pushed him around the corner, and I thought he was gone. I went on out to my car to get into my car to go home. I was through with it. I didn’t want to hurt the boy or nothing, and I *523had done had all the trouble with him I wanted to have, and I went to get in my car. I looked around to see what had become oi him with that pistol, and I saw him. He was trying to get the pistol out, he was pulling it, and I just reached in the car and grabbed my gun and wheeled and began shooting just as rapid as I could right at him, and he was dodging and wheeling, looked like he was trying to look around the smoke of my pistol when I was shooting, and I thought-1 was in danger of my life; hadn’t I would not have shot; if he had not had his pistol, getting his pistol out, I would have never have touched mine. I had no idea of getting my pistol at all when I went to the car, and when I got out of my car I had no more idea of having trouble with him than I have with you all now. I simply got out to have a conversation with him and Mr. Thompson, thought we would get all together there and have a conversation, and I shot to save my own life. I thought he was fixing to shoot me and he was trying to shoot; looked like he was shooting all the time to me, had his pistol pointed right towards me, right down the edge of the wall, had his side to me kind of this way [indicating], dodging that way and dodging down as I was shooting, looked like he was trying to look under my smoke to get a shot at me, and why he didn’t shoot I don’t know. I thought he was shooting all the time. They say there was no empty shells in his pistol, but I thought he was shooting at me all the time. I was looking every minute to get hit with a bullet. . . . What I done I done to save my own life.”
The defendant does not say in his statement that he shot under the excitement of passion. The evidence for the State makes a clear case of wilful and unprovoked murder. The statement of the accused tends to show that he, acted in self-defense. In these circumstances the court did not err in failing to charge upon the subject of voluntary manslaughter, as embraced in sections 64 and 65 of the Penal Code. Wilder v. State, 148 Ga. 270 (96 S. E. 325) ; Lamar v. State, 153 Ga. 216 (2) (111 S. E. 914). Nor was the law of voluntary manslaughter, as relating to mutual combat, involved under the evidence, as there was nothing in the evidence tending to show any mutual combat on the part of the deceased, all of his acts in the rencounter resulting in his death being purely defensive. If voluntary manslaughter was involved undér the statement of the accused, it is admitted that his counsel made no request *524for a charge upon the' subject, and in the-absence of such-request the failure of the court to charge upon such subject, when the theory of voluntary manslaughter arises solely from the statement of the defendant, does not require the grant of a new trial. Felder v. State, supra. So the judgment should not be reversed for the court’s failure to charge upon the law of voluntary manslaughter.
3. The defendant complains of the court’s instruction to the jury set out in the fifth special ground of his motion for new trial. The court, in substance, instructed the jury that if the evidence for the State convinced them that on or about June 24, 1926, the defendant, in the County of Morgan, with a pistol, killed the deceased, as set out in the indictment, then upon such proof the law presumes, until the contrary is shown, that the killing was malicious, and that unless the evidence in behalf of the State convinced them that it was justifiable homicide, it would devolve upon the defendant in the case to satisfy them that the killing was justifiable. The defendant excepts to this charge upon the ground that the true law is, that upon proof of the killing the presumption of malice arises, and the burden rests upon the defendant to show justification or mitigation, unless the State’s evidence shows one or the other. In other words, the defendant contends that it is not the true law that the burden is placed upon him unless the State’s evidence shows full 'justification;, but that such burden would only rest upon him if the State’s evidence failed to show justification or mitigation. On the other hand, if either justification or mitigation appeared from the evidence introduced by the State, the burden would not be shifted, and it would not rest upon the defendant to rebut the presumption of malice.
The law presumes every homicide to be felonious, until the contrary appears from circumstances of alleviation, or of excuse, or of justification; and it is incumbent on a defendant charged with murder to make out such circumstances to the satisfaction of the jury, unless they arise out of the evidence' produced against him. Hudgins v. State, 2 Ga. 173, 188. Where the evidence relied upon by the State to establish - the fact of homicide discloses circumstances of mitigation or justification, such evidence does not raise a presumption of malice. If either mitigation or justification appears from the evidence -produced by the State, there is no presumption of malice. Dowdy v. State, 96 Ga. 653 (23 S. E. 827); Green *525v. State, 124 Ga. 343 (supra); Mann v. State, 124 Ga. 760 (supra); Elliott v. State, 132 Ga. 758 (64 S. E. 1090); Surles v. State, 148 Ga. 537 (97 S. E. 538); Burley v. State, 158 Ga. 849 (2) (124 S. E. 532). So if justification did not appear from tlie evidence introduced-by the State, but mitigation or alleviation did appear therefrom, this charge would have been erroneous and would require the grant of a new trial. But neither justification, mitigation, nor alleviation appeared from the evidence produced against the defendant by the State; and for this reason thife instruction does not require the grant of a new trial. This instruction further placed upon the defendant the burden of showing • that the homicide was justifiable. In some circumstances this charge would have put upon the defendant a greater burden than the law imposes. If by his evidence or by his statement the defendant made a ease tending to show circumstances of alleviation or mitigation, although he did not show justification, he would have carried the burden which the law placed upon him, and this charge, placing upon him a greater burden than the law imposed, would require the grant of a new trial. But the defendant relies solely upon self-defense in this case. In his statement he sets up full justification. He states no facts which would make the homicide more than justifiable homicide. He states that what he did was to save his own life against a felonious assault upon him by the deceased. In these circumstances the burden was upon him to show justification, neither justification nor mitigation appearing from the evidence of the State, and mitigation or alleviation not appearing from his evidence or his statement. So this instruction of the court was not erroneous because too narrow, or because it placed upon the defendant a burden greater than that imposed by law, under the facts of this case. It was adjusted to the facts appearing in the record.
In the sixth ground-the plaintiff in error complains of the following charge to the jury: “There is another principle of law that is disconnected with the principle of law that I have already given you in charge; and these principles of law that I am giving you in charge, I am quoting them from the Penal Code of the State of Georgia of 1910. The law says a bare fear on the part of the defendant that John G. Herrin was intending to commit a felony upon his person would not be sufficient to justify the kill-*526mg. That is, if the circumstances that surrounded the defendant at that time were only sufficient to create in his mind a bare fear that John G. Herrin was endeavoring to commit a felony upon his person, the law says that that would not be sufficient to justify the killing; but the law does say that if the circumstances that surrounded the defendant at that time were sufficient to excite the fears of a reasonable man, that is, a reasonably selfrpossessed man, a reasonably courageous man, that a felony was about to be committed upon his person, and he shot under circumstances of that character, and did not shoot out of envy, hatred, or malice, but shot in a bona fide effort to protect his person either from a real or apparent danger, the law says that he would be justifiable, and you would not be authorized to convict him of any offense. Now, the court charges you this principle of law in connection with the other principles of law that I have given you in charge: If a person kills another or claims to kill another in self-defense, the law says that the danger must be so urgent and pressing at that time, that is, at the time of the killing, that the danger must be so urgent and pressing at the time, or it must appear that .the danger was so urgent and pressing at the time, by the circumstances that surrounded the person killing, that it was necessary to kill the other person to protect his person either from a real or apparent danger or an apparent felony, an.d unless the danger was so urgent and pressing at the time, or if it did not appear that it was so urgent and pressing at the time, and if one.person kills another under circumstances of that character, why then the killing would be unjustifiable and unlawful.” The defendant excepts to this charge upon the ground that it confuses the defenses set out in sections 70, 71, 73, and 73 of the Penal Code. 1 The defendant contends that one is justifiable in killing if the slayer, as a reasonable man, had sufficient ground to believe that, his life was in danger, or that a felony was about to be committed upon his person, and that whether in point of fact he was in danger .of a felony being committed upon his person, or that his life was in danger, is wholly immaterial, provided the circumstances were of such a character as to justify a reasonably prudent and courageous man in honestly believing that there was such.danger. He asserts that it need' not appear that the killing was absolutely necessary, as provided in section 73 of the Penal Code. He says that the *527court erred in submitting both of these principles in immediate connection with each other, and that by so doing he necessarily confused the two separate defenses.
The court charged the law of self-defense, as laid down in section 70 of the Penal Code. He then defined the meaning of the term “felony,” as used in that section of the Code. Then followed the instruction complained of in the sixth ground of the motion for new trial. He did not charge the jury the law of self-defense as set out in section 73 of the Penal Code. It is now well settled that in a proper case, on the trial of one for murder, sections 70, 71, and 73 of the Penal Code may all three be given in charge, but instructions on the separate branches of the law of justifiable homicide should not be so given as to confuse the different defenses which may arise under these sections, and apparently limit, by the terms of section 73, the defenses provided by sections 70 and 71 of the Penal Code. Warrick v. State, 125 Ga. 133 (7) (supra); Pryer v. State, 128 Ga. 28 (supra); Franklin v. State, 146 Ga. 40 (90 S. E. 480); White v. State, 147 Ga. 377 (3) (94 S. E. 222); Surles v. State, 148 Ga. 537 (7) (supra); Shepherd v. State, 150 Ga. 799 (105 S. E. 485). To charge sections 70, 71, and 73 consecutively, and’ without instructions to the jury as to the applicability of the different aspects of the case, tends to confuse the defenses provided under these sections, and such confusion requires the grant of a new trial. But in the instant ease the court did not charge section 73 of the Penal Code. He did not charge sections 70, 71, and 73 consecutively. He charged section 71. After charging the principle of law laid down in section 70, he told the jury that “There is another principle of law that is disconnected with the principles of law that I have already given you in charge,” referring to the principles laid down in section 70. He then charged the principle of self-defense laid down in section 71. Then in connection with the principles of law of self-defense, embraced in sections 70 and 71 of the. Penal Code, he charged the jury as follows: “If a person kills another or claims to kill another in self-defense, the law says that the danger must be so urgent and pressing at that time, . . or it must appear that the danger was so urgent and pressing at the time by the circumstances that surrounded the person killing that it was necessary to kill the,other person to‘protect his person either from a real or apparent danger *528or an apparent felony, and unless tbe danger was so urgent and pressing at the time, or if it did not appear that it was so urgent and pressing at the time, and if one person kills another under circumstances of that character, why then the killing would be unjustifiable and unlawful.” It will be noted that the court was charging the jury upon the subject of reasonable fears as a defense for the taking of human life. In cases where reasonable fear is the ground upon which self-defense is based, must the danger be urgent and pressing, or apparently so, in order to justify the killing ? In Jackson v. State, 91 Ga. 271 (18 S. E. 298, 44 Am. St. R. 22), this court, speaking through Chief Justice Bleckley, said: “The doctrine of reasonable fear as a defense does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time' of the killing.” In Williams v. State, 120 Ga. 870, 873 (48 S. E. 368), this court, speaking through Mr. Justice Evans, said: “The court, while charging as to what the law regards as the fears of a reasonably courageous man, told the jury that the danger ‘ apprehended must be urgent and pressing, or apparently so, at the time of the killing/ It is insisted by the plaintiff in error that this instruction was not applicable to this .case, and could only apply to a case where the evidence disclosed ‘a mutual intention to fight/ We can not concur in this view. ‘A bare fear’ of injury can never be regarded as sufficient to justify a homicide. Penal’Code, § 71. And, as was said in the case of Jackson v. State, 91 Ga. 271 (1) : ‘The doctrine of reasonable fear as a defense does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing/ ” In Short v. State, 140 Ga. 780 (80 S. E. 8), this court, speaking through Mr. Justice Evans, said: “ ‘The doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing/” So I do not think that the court erred in this instruction to the jury, upon the facts and circumstances of ,,this ease. Finally, if there was any error in this instruction, under the facts of this case a new trial should not be granted.
Mr. Justice Hill authorizes me to say that lie concurs in this dissent.