The trial in the court below seems to have been, in the main, free from error; and for that reason we shall not consider the exceptions which we do not deem to be meritorious. One error in the charge, however, under the' provisions of the Civil Code, §4334, leaves us no discretion, and demands a new trial. The plaintiff in error complains that the court erred in its charge to the jury by summing up and. stressing the circumstances insisted on by the State, tending to prove the guilt of the defendant, and the lack of sufficient provocation by the use of opprobrious words, without a corresponding statement of the circumstances *74brought out by defendant and insisted on for his defense, tending to show sufficient provocation; especially in view of the fact that his counsel, before the jury retired, requested the court to supply the omission and charge the jury as to his contentions.
Upon consideration of the charge, we are satisfied that this case falls clearly within the ruling in Rouse v. State, 2 Ga. App. 184 (4), (6), (58 S. E. 416). The court charged the jurjr as follows : “In the case at bar the State insists that the defendant is guilty of the charge. The State insists, that the prosecutor, John O’Donnell, was in a saloon on Water street, and that the defendant, W. H. Scott, in company with policeman Book, came into the saloon, and Book arrested some one, and that the only words spoken by the prosecutor, John O’Donnell, were, 'I wonder why they have arrested that man;’ the prosecutor, at the time, stating, 'líe has done nothing to be arrested for; I presume they arrested him for the $1.95;’ and that-Scott became offended and asked the prosecutor if he meant to insinuate that he would arrest a man just for the costs. The State insists that the prosecutor stated to Scott, who was a policeman in uniform, that he did not intend the remarks for him, but the prosecutor said it was the general talk about the town that officers were making arrests just for the costs. The State insists that the prosecutor told Scott that he intended no reflection on him, that the words used were not intended for him. The State insists that policeman Scott became enraged and knocked the prosecutor, O’Donnell, to the floor, bruising him severely on the nose and face. The State insists that the defendant, W. H. Scott, is a young man, vigorous and strong, and that the prosecutor, John O’Donnell, is feeble and about sixty-two years old. The State insists that the prosecutor, at the time he received the blow, was making no effort of any kind to do violence to the defendant.” After thus presenting all of the contentions of the State, the court said nothing as to the defendant’s contentions, except to instruct the jury that “the defendant has a right to offer in evidence any opprobrious words or abusive language offered by the prosecutor as a defense. They may or may not have justified the battery; so you-would look to the evidence to see what opprobrious words were used, if any. You will also look to the testimony to see what battery, if any, was inflicted upon the prosecutor.” The extract from the charge of the court, that “if the jury *75believe that the only words used by the prosecutor in this case were ‘I wonder why they arrested that man/ and that they were not used to or of Scott, and that this was all that was said by the prosecutor, and the defendant knocked him down to the floor and bruised him in the manner testified to, the defendant would not be justifiable,” may have tended to further impress the jury with the superior credibility of the testimony in behalf of the State, in view of the fact that only the testimony upon that subject, and law applicable to it, were concretely presented. As an abstract proposition, the portion of the charge last, quoted was a correct statement of law; and the court did not err in applying the law to the facts. The error consisted in not presenting both sides with equal fullness to the jury. If the judge thought proper to charge the jury as he did upon this subject, he should also have told them that if they believed, from the evidence, that other words or additional words were used by the prosecutor to the defendant, and if such words were, under the circumstances, opprobrious, and were used without provocation, then it would be for the jury to say whether the battery, if one had been proved, was justifiable. As there was evidence to the contrary of that presented by the judge in his charge, the law should have been applied to both phases of the contention, with equal fullness and exact impartiality. It is quite apparent to us that the presentation of the State’s theory in this case, without like presentation or instruction as to the testimony in behalf of the defendant, was unfair to the defendant, though not intentionally so; and for that reason a new trial should be granted. Judgment reversed.