dissenting.
The evidence in this case was in conflict. The defendant-appellant contended that he had shot the victim in self-defense, and that his doing so was fully justified.
The charge of the court on justification was, in part, as follows: "If you find the homicide proved, as alleged, and the evidence adduced to establish the killing does not show circumstances of justification or alleviation, malice may be inferred, but if you find from the evidence relied on by the state to show the killing contains circumstances of alleviation or justification, the burden of proving that the crime of murder is not shifted. The law presumes every homicide to be felonious until the contrary appears from the circumstances of alleviation or excuse or justification, and it is incumbent upon the prisoner, the defendant to make out by a preponderance of the evidence such circumstances to the satisfaction of the jury unless they arise out of the evidence produced against him.”
The third error enumerated was: "The court erred in charging the jury as to justifiable homicide.” In support of this enumerated error the case of Witt v. State, 231 Ga. 4 (200 SE2d 112) (1973), is cited. I have reread the charge in Witt and compared it with the charge in this case, and I can see no material difference in the two charges in the two cases.
In the instant case the trial judge charged on justifiable homicide which was an issue in the case, but he did not "specifically, or in general terms, inform the jury that, if they should believe the defendant justified, it *612would, be their duty to acquit him.” In Witt we held that such a failure required the granting of a new trial. I think Witt controls here, that Witt should not be overruled, and that a new trial should be granted.
I also think the court’s charge in this case on justifiable homicide was erroneous for other reasons. First, in Gordon v. State, 163 Ga. 388 (136 SE 144) (1926), this court held that when the defendant’s statement raised the issue of justification, a jury’s determination of that issue could not be limited to "the evidence in the case against the defendant.” The charge in this case said ". . . but if you find from the evidence relied on by the state to show the killing contains circumstances of alleviation or justification, the burden of proving that the crime of murder is not shifted.” This charge, I think was erroneous and completely confusing to the jury. It is my view that the charge should have said: "... but if you find from the evidence relied on by the state or from the evidence (or unsworn statement) relied on by the defendant to show the killing contains circumstances of alleviation or justification, the burden of proving that the killing was murder or manslaughter remains on the state.”
Also, I think that the charge was erroneous in that it shifted the burden of proving that the homicide was justified to the defendant. See my dissenting opinion in Abner v. State, 233 Ga. 922 (213 SE2d 851) (1975).
I think the judgment in this case should be reversed and a new trial granted.
I respectfully dissent.