1. After having charged that the burden is on the State to show to the satisfaction of the jury beyond a reasonable doubt that the defendant was guilty as charged, before they would be authorized to convict him, and that the pre
2. The Code, § 38-415, provides: “In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case. The prisoner shall not be compelled to answer any question on cross-examination, should he think proper to decline to answer.” The court gave the following instruction relative to the defendant’s statement: “In all criminal cases . . the defendant -has the right to make such statement to the court and to the jury as he sees proper in his own defense. Under the law of this State, the defendant is not sworn. He is not subject to examination or crosp-examination, yet you have the right to believe his unsworn statement in preference to the sworn testimony in the case.” In Cargile v. State, 137 Ga. 775 (2) (74 S. E. 621), this court said: “While it is true that a defendant in a criminal case electing to make a statement is not subject to cross-examination without his consent, yet as this provision of the statute is but a rule of trial procedure, it is the better practice to omit any reference to it in the general charge. Nevertheless, the statement of this rule of procedure in the general charge will not ordinarily be ground for a new trial.” We cannot see how this charge, taken as a whole, could properly be taken as minimizing or discrediting the defendant’s statement or as unduly emphasizing the fact that the defendant was not sworn, or as being an expression “of an opinion by the court that the defendant was not entitled to any credit by the jury and was unworthy of belief.” It is never error, in the absence of a written request, to fail to give a charge in the language which the defendant contends would have been proper, when the correct principle of law was charged. Adams v. State, 168 Ga. 530 (7, 11) (148 S. E. 386); Wilder v. State, 148 Ga. 270 (2) (96 S. E. 325).
3. The following is part of the charge relative to malice: “Legal malice may not be ill-will or hatred. It is an unlawful intention to kill, without justification, excuse, or mitigation; which intention, however, must exist at the time of the killing as alleged.
4. The court gave the following instruction to the jury: “Any person charged with murder has a right to defend himself and show that he was justified, and this is known to the law as justifiable homicide. So justifiable homicide is the killing of a human being in self-defense, or against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on him, that is, the defendant. The term ‘felony’ as used in this connection
(a) '“The portion of the charge, that any person charged with murder has a right to defend himself and show that he was justified, is misleading for the reason that he has a right to defend himself at the time of the alleged attack when the deceased was killed, and not at the trial of the case.” If there could have been any misunderstanding as to the intention of this portion of the charge it was cured by the definition of justifiable homicide immediately thereafter, which made it clear that the killing of a human being in self-defense or against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on him, was justifiable homicide. The jury could not have understood the court to mean that “self-defense” related to his defense at the trial nor that at the trial he was defending himself physically from a violent or surprise attack from someone intending to commit a felony upon him.
(b) The movant further saj^s that this excerpt from the charge was erroneous as confusing the law. of self-defense or voluntary manslaughter with the law of reasonable fear; and that, having previously charged in connection with voluntary manslaughter that provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder, the court should have gone further and instructed the jury that '“they should not let that confuse their mind with the law of justification, acting under the fears of a reasonable, courageous man, that (if) his life was in danger or apparently so, he would be justified.” There is no merit in these grounds of complaint.. Here the charge was clearly limited to
5. The evidence not being limited to testimony circumstantial in its nature and character, the court did not err in referring in his charge both to direct and circumstantial evidence. Nor, since the jury was fully charged on their right to believe the defendant’s statement in preference to the sworn testimony, was it reversible error not to include a reference to his statement in that portion of the charge here complained of.
6. There being testimony as to previous threats recently made by the defendant against the deceased, the court did not err in telling the jury that they might consider any such testimony, and if they should determine that any such threats were made, they might consider such a fact as illustrating the state of mind or feeling of the defendant against the deceased.
1. The court charged as follows: “On the question of express malice, and that is the reason why threats, if any were made, are admissible in evidence to illustrate, if they do, whether or not the defendant had malice in his mind at the time of the alleged killing. So, on the question of express malice, the court charges you that you may look to all the facts and circumstances and determine whether or not the defendant made threats against the life of the deceased, and whether or not he planned to carry those threats, if any, into execution in any manner when an opportunity presented itself, if one did, and then carried these threats, if any, into execution by killing the deceased in the manner as charged in the bill of indictment.” We are unable to see that this excerpt was either '•“misleading” or “confusing,” or that it “emphasized” the State’s theory or “minimized” the defendant’s contention, or that it amounted to an expression of opinion on the facts to which the charge related.
8. The court did not seek to coerce nor did it manifest any desire that the defendant be convicted in charging the jury this excerpt: “If you are not satisfied beyond a reasonable doubt, or if you have a reasonable doubt of the defendant’s guilt' on the charge of murder, and on the charge of voluntary manslaughter, the form
Judgment affirmed.