dissenting. Although the defendant in his statement did not claim justification or mitigation in the commission of the homicide, but on the contrary negatived any such defense by denying that he was the person who did the killing, it is nevertheless true, that, upon it being shown by the State’s evidence that the defendant was in fact the perpetrator, he was entitled to the instructions the omission of which is complained of, if under any of the evidence facts or circumstances of justification or alleviation appear. There was no witness to the beginning of the actual encounter save the defendant and his jointly indicted alleged accomplice, who did not testify. TIpon proof of the homicide, a presumption of murder arises against the perpetrator, unless circumstances of alleviation, excuse, or justification are shown. Turner v. State, 139 Ga. 593 (3) (77 S. E. 828); Mann v. State, 124 Ga. 760 (supra); Anderson v. State, 122 Ga. 175 (50 S. E. 51); Delk v. State, 135 Ga. 312 (69 S. E. 541, Ann. Cas. 1912A, 105); Lively v. State, 178 Ga. 693, 698 (173 S. E. 836). In my opinion no such circumstances appeared in this case. Certainly it would not seem that the evidence for the State as to the circumstances prior to and leading up to the homicide in any wise tended to suggest that the deceased was then or might have been subse*413quently guilty of making an unprovoked or unjustified assault upon the defendant, such as would justify or palliate the act of the defendant in taking his life. The fact that the deceased peace officer, in charge of the company’s property in the large cow-barn at the fair-grounds where the picnic occurred, asked the defendant, upon his first entry in the building late at night, if he had enjoyed the picnic and gave to him and to each of his two companions a bottle of beer, and then instructed them that they "could go ahead home,” would not tend to put the deceased then or thereafter in the attitude of a felonious aggressor. Nor could any such inference be drawn from the evidence that upon the subsequent return of the midnight intruder, this time accompanied by only one of his previous companions, the deceased refused to sell them beer, telling them that he had given them all a bottle and that he was not selling beer. The language of the witness McMurray as to this incident is as follows: "Mr. Helton [the deceased] says, ‘We done give you a bottle of beer, all of you. We are not selling beer,’ and Mr. Helton says, ‘I told you to get out of here,’ and he run his hand in his pocket and brung out a badge. Mr. Helton says, ‘I can give you all a summons, I can make a case against you, but I don’t want to make a case against you.’” It appears that after this conversation the defendant was led out of the building by the witness. In the absence of any testimony by the jointly-indicted alleged accomplice as to what happened at the time of the actual homicide upon the third appearance of the defendant and the alleged accomplice in the building, and in view of the fact that the defendant in his statement negatived the defense of justification or mitigation by denying that he was the person who did the killing, if there be any fact justifying or mitigating the homicide, it must be taken from the testimony of this same witness, McMurray. According to this witness, the deceased left him and walked "way back” to the end of the long building, when he was heard by the witness to say: "I thought I told you all to get out from here.” "He says, ‘I told you all to get out from here’ — bam, bam, bam, bam, bam — ‘Boy, come here, don’t let them kill me, don’t let them kill me.’ Mr. Helton was calling me when he said ‘Boy.’”
This testimony, in my opinion, fails to throw any light on whether the defendant who did the killing or the deceased who *414fired Ms pistol was the aggressor, unless the status of the deceased as a custodian and peace officer and of the defendant as a trespasser, and the previous course of conduct of the defendant, and the dying declaration of the deceased would indicate that the defendant was such. The further testimony of the witness that he did not hear “any fuss or squabble” before the deceased cried out for help throws no light upon the question as to who was the assailant back in the darkness on the presumably dirt floor of the cow-barn. If the armed defendant advanced toward the deceased, there would have been no sound, and the blade of a knife strikes silently. When McMurray arrived on the scene, the stabbing and firing were over, except the last of the sixteen knife-inflicted wounds had been made. The evidence showed merely that the deceased, who was stabbed to death, fired his pistol and cried out for help from the defendant and the alleged accomplice. This is all that we know, except what might be surmised from the status of the parties and the previous aggressive conduct of the defendant. Accordingly, it is my'opinion, that, upon the homicide being thus shown, since none of the antecedent facts put the deceased in the attitude of an aggressor, and since the defendant did not suggest justification or palliation, and since the evidence as to the actual homicide throws no light whatever upon the question as to who was the aggressor, merely showing the stabbing, the shooting, and cry for help of the deceased, there was nothing to dispel the presumption of murder which arose upon the proof of the homicide. The fact that had the defendant been killed instead of the deceased officer, the presumption or murder would have arisen against the officer (in the absence of justifying or mitigating circumstances) does not impair the presumption which in fact did arise against the actual perpetrator of the homicide. The fact that after the deceased twice admonished the defendant to leave the building, the deceased while armed with a pistol met the defendant on his third appearance in the building, might conceivably, under the decisions and under other circumstances, suggest the propriety of a charge upon the law of voluntary manslaughter, even though such a defense was not suggested by the defendant and was in terms disclaimed by his counsel in argument to the jury. But this fact loses all significance when it is considered that the deceased was the custodian of the property, and was a peace officer who carried *415the weapon upon his person in that capacity. See, in this connection, Griffin v. State, 113 Ga. 279, 282 (38 S. E. 844). The perpetration of the homicide by the defendant having been shown by the evidence, and the defendant by his statement having negatived the defense of justification or palliation, and there being no evidence tending to suggest justification or palliation, it would not seem that the court, who charged upon the defense actually made, committed error in failing to charge as to defenses which were in no wise involved under the evidence or raised by the defendant’s statement.