ON MOTION TOR REHEARING.
Broyles, C. J.Counsel for the plaintiff in error in his motion for a rehearing contends that this court erred in' holding that, under the facts of the case and the entire charge, the excerpts from the charge complained of in grounds 1, 2, and 3 of the amendment to the motion for a new trial showed no reversible error.
1. The first excerpt referred to was as follows: “If the State fails to do that, [if] the State fails to make out a prima facie case, you would not be authorized to find a verdict of guilty; but when the State does prove to your satisfaction all of the material allegations in the indictment, why then the burden is shifted to the defendant, and he would be bound to make good his defense, and, in a case of this character, either to justify or mitigate the act.” One of the assignments of error upon this charge (and the only one insisted upon in the motion for a rehearing) was: “It places upon the defendant a greater burden than that provided by law, and should have been qualified by the statement, unless the circumstances of justification or mitigation arise out of the evidence produced against him/ ” In the principal ease cited by movant, Green v. State, 124 Ga. 343 (52 S. E. 431), the 4th headnote is as follows: “When on the trial of one charged with murder the accused admits the homicide but at the same time states circumstances of justification or alleviation, and the only testi*743mony of witnesses which proves the homicide also discloses circumstances of mitigation or justification, it is error for the court to charge, without qualification, ‘When a homicide, however, is proven, the burden is on the slayer to justify or mitigate the crime or the offense.’ ” That ruling is supported by a long line of authorities, and is binding on this court. In the instant case, however, the charge now under consideration is essentially different from the charge criticised in the Green case. In that case the judge charged that, merely when the homicide was proved, the burden was on the slayer to justify or mitigate the offense, while in the instant case the judge charged that where the State proved all of the material allegations in the indictment the burden was on the slayer to justify or mitigate the offense. The words, “all of the material allegations in the indictment,” comprise not only the alleged homicide but also the allegation that the accused “unlawfully, wilfully, feloniously, and with malice aforethought did kill and murder” the deceased. It is obvious that the charge in this case is not covered by the above-stated ruling in the Green case.
2. If there were any errors in the other two excerpts from the charge referred to in the motion for a rehearing, they were cured by the additional instructions given by the court on the request of counsel for the accused.
Rehearing denied.
Luke and Bloodworth, JJ., concur.