dissenting. John Lee Humphreys was convicted, without any recommendation by the jury, of the murder of Fannie Lee Humphreys. In one ground of the motion for a new trial complaint is made of the omission, without request, to charge the law of voluntary manslaughter as defined in the Penal Code, §§ 64, 65. There was uncontradicted evidence that the persons named were husband and wife, living in a state of separation. There was other evidence as to statements by the defendant, substantially as follows: that “he killed his wife down there below the bridge;55 that “he shot her twice with a shotgun55 and “one time with a pistol;55 that “he shot her about B. Burk;55 that “he shot her about going with B. Burk;55 that he (defendant) “had been with55 his wife “just before he shot her;55 that “when he got to talking to her he told her, H am tired of your running from me like you do;5 she said ‘John Lee, if you forgive me for this time, I won’t do it any more,5 and that time he shot her;55 that “she put one hand on one shoulder and the other hand on the other shoulder and asked him to forgive her.55 In the Penal Code, § 65, it is declared: “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. Provoca*711tion by words, threats, menaces, or contemptuous gestures shall in no case he sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which' the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder.” The question is does the above evidence show “other equivalent circumstances” within the meaning of this section of the Code? In Mack v. State, 63 Ga. 693, 696, it was said: “What circumstances will present this equivalence and justify the excitement of passion, and exclude all idea of deliberation or malice, the law does not undertake to say; it furnishes a standard, and leaves the jury in each case to make the comparison, and determine whether the special facts of the case before them come up to that standard or not.” See also Coleman v. State, 149 Ga. 186 (99 S. E. 627). In Rumsey v. State, 126 Ga. 419 (2) (55 S. E. 167), it was said: “In order to reduce a homicide from the grade of murder to that of voluntary manslaughter, where there was neither an actual assault upon the slayer nor an attempt to commit upon him a serious bodily injury, it is not necessary that the proof should show that the circumstances of the killing were in the nature of an assault or an attempt to seriously injure his person, but only that the circumstances were such as would as much justify the excitement of passion as would an actual assault or attempt to commit a serious personal injury.” In Battle v. State, 133 Ga. 182 (2) (65 S. E. 382), it was held: “The law does not require 'other equivalent circumstances’ referred to in section 65 of the Penal Code to be in the nature of an assault or an attempt to commit a serious personal injury by the deceased, but the circumstances therein referred to must be the equivalent of an assault, or an attempt to commit a serious personal injury, in excluding all idea of deliberation or malice and in justifying the excitement of passion. The 'other equivalent circumstances’ referred to must be such as would as much exclude all idea of deliberation or malice and justify the excitement of passion as would an assault, or an attempt to commit a serious personal injury.” The evidence as to conduct of the wife illustrated by the words attributed to her in the foregoing quotations was in*712sufficient to show adultery or confession of adultery bj’’ the wife or cause for arousing irresistible passion on the part of the defendant, and consequently did not authorize a charge on the law of voluntary manslaughter. The facts differ from those involved in the recent case of Smith v. State, 174 Ga. 878 (164 S. E. 762), and those involved in the following cases cited by the attorneys for the plaintiff in error: Hill v. State, 64 Ga. 453 (3), where the defendant killed a man who had debauched his wife on meeting him the first time after knowledge of his guilt; Richardson v. State, 70 Ga. 825, 829, where the defendant killed a man after hearing that he was attempting to commit adultery with defendant’s wife; Mize v. State, 135 Ga. 291, 297 (69 S. E. 173), where the man admitted to defendant that he had debauched his daughter; Smith v. State, 168 Ga. 611, 612, 616 (148 S. E. 531), where defendant’s daughter informed him of the man’s, attempt to debauch her; Biggs v. State, 29 Ga. 723 (4), 729, 730 (76 Am. D. 630), where a husband met and killed a man, next morning, who had attempted during the night to debauch his wife; Daniels v. State, 162 Ga. 366 (133 S. E. 866), where a wife killed a mistress of her husband after discovery of the relationship; McLendon v. State, 172 Ga. 267 (3) (4) (157 S. E. 475), where defendant found his wife secluded in a house at night with another man. For the reasons stated above, it would be unnecessary to consider the request to review and overrule the decision in Stevens v. State, 137 Ga. 520 (supra), where it was held: “If a wife had been suspected by her husband of infidelity, and some little time thereafter she stated to him that she had been guilty of adultery, and expressed an intention to see her paramour again, and if thereupon her husband seized a gun and killed her, such facts were not sufficient, under the Penal Code (1910), § 65, to authorize submission to the jury of the theory of voluntary manslaughter, though a charge on that subject was requested.” On review that ruling should be overruled, because it misconstrues and misapplies the statute embodied in the Penal Code, § 65. Whether voluntar}^ manslaughter was involved, as founded on “other equivalent circumstances,” depended not upon the mere words spoken by the woman, but upon the facts as to her past, present, and future conduct, as portrayed by the words. The facts thus portrayed were sufficient to authorize the jury to find voluntary manslaughter. This accords with the rulings in several of the cases cited above.
*713Another special ground of the motion for a new trial is as follows: “Because movant contends the court erred in charging the jury in said case as follows: 'The defendant has also introduced certain evidence for the purpose of showing good character upon his part. The court charges you that in criminal cases the defendant is allowed, if he sees fit, to offer evidence as to his general good character. When such evidence is offered, it is the duty of the jury to take that testimony, along with all the other testimony in the case, in determining the guilt or innocence of the defendant. Good character is a positive substantive fact, and may of itself be sufficient to generate in the minds of the jury a reasonable doubt as to the guilt of the defendant; and if so, it would be their duty to acquit. It is the duty of the jury to take any evidence of general good character, along with all the other evidence in the case; and if, in so doing, the jury should entertain a reasonable doubt as to the guilt of the defendant, they should acquit. Nevertheless, if the jury should believe the defendant guilty, beyond a reasonable doubt, it would be their dirty to convict, notwithstanding evidence as to general good character/ Movant contends that in so charging the court placed in issue before the jury the general character of the defendant, notwithstanding the fact that the defendant had not put such character in evidence, (a) The charge of the court upon general character of the defendant was not authorized by the evidence or the defendant’s statement, (b) This charge was calculated to create in the mind of the jury the impression that movant had undertaken to prove his general good character and had failed to do so, and could only prove good character for peaceableness. The inference was plain from such apparent failure that the general character of the defendant was bad. (c) This charge,placed upon the defendant a burden from which the law jealously guards him — that of proving his general character to be good as .a defense, (d) Such charge was especially harmful in this case, it being a capital case where .the jury had the right, for any reason it saw fit, to recommend the defendant to the mercy of the court. In a case of life and death, where any circumstance or feature might easily turn the scales, such an apparent failure to' establish general good character under the charge given might "well havé influenced, the jury in failing to recommend movant to the .mercy- of the .court in connection with the verdict of gu-ilty. (e) ■ It is no't apparent that *714such charge was not harmful to the defendant and therefore a new trial should be granted because of such erroneous charge.” The charge complained of was not accurately adjusted to the evidence. The defendant did not put his general character in issue, but did put in issue his general character for peaceableness. The charge was likely to confuse the jury by suggesting that there was an issue as to the defendant’s general character, which they might find there was no evidence to support, and at least prevent them from according to the defendant a recommendation that would prevent the extreme penalty of the law.
Russell, 0. J., concurs in the views expressed in the foregoing dissent.