12438 | Ga. Ct. App. | Jul 12, 1921
1. It was reversible error for the court to charge the jury that, “ the defendant has made a statement in which he tells you that he shot the deceased to save his own life, to prevent a felony from being committed upon him. The circumstances surrounding him. at the time he shot you must gather from the testimony and. the defendant’s statement” (italics ours), since'the jury had the right to believe the statement of the defendant in preference to the sworn testimony. Rouse v. State, 135 Ga. 227 (3) (69 S.E. 180" date_filed="1910-10-12" court="Ga." case_name="Rouse v. State">69 S. E. 180).
(a) While the court elsewhere in the charge correctly instructed the' jury upon this subject, “ the harmful effect of such an erroneous instruction cannot be obviated merely by a correct instruction upon the same subject; the attention of the jury must be specifically called to the previous error, and it must be expressly and explicitly withdrawn.” Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369 (1 b) (83 8. E. 445).
2. The other special grounds of the motion for a new trial are either without substantial merit, or the alleged errors are not likely to recur on another trial, and the judgment overruling the motion for a new .trial is reversed solely on account of the error dealt with in the preceding note. Judgment reversed.