The defendant was tried upon 'an indictment charging the offense, of murder, and was convicted of voluntary manslaughter. He excepts to the judgment refusing a new trial.
1-3. The rulings in the first three headnotes are sufficiently full to obviate the necessity for elaboration.
4. Hpon the evidence adduced there was one and only one distinct issue, — that of guilty or not guilty of the offense of murder, as charged in the indictment. According to the testimony for the State, the deceased, for the purpose of inducing his wife to return to his home, had gone to a house where he suspected she was concealed, and where, according to her own testimony as it developed upon the. trial, she was concealed in a wardrobe, and the defendant killed him without provocation; the only motive actuating the defendant, 'as suggested by the State’s testimony, being perhaps a criminal intimacy between the defendant and the wife of the de*591ceased.' According to the testimony introduced by the defendant, as well as his own statement, the deceased attempted to shoot him with a' pistol, after a threat, to kill him. According to this testimony the killing was demanded by necessity, or certainly would have been justified under the fears of a reasonable man. There was no evidence of passion, or of a mutual intent to fight, or that the defendant was actuated only by fears that an injury less than a felony would be perpetrated upon him at the time of the killing. For this reason, under the ruling in Howard v. State, 2 Ga. App. 830 (59 S. E. 89), and numerous other rulings, the court erred in charging upon the subject of voluntary manslaughter.
Judgment reversed.
Roan, J., absent.