146 Ga. 40 | Ga. | 1916
(After stating the foregoing facts.) The theory of mutual combat was involved in this case. The jury might have found from the evidence that the defendant, when he approached the group of men where the decedent was, was seeking an encounter with the decedent. According to his statement made at the trial and the testimony of one of his witnesses, the intention of the accused was entirely pacific. But the jury might well have believed the contrary. They might also have believed, if they accepted as true the testimony of one of the witnesses introduced by the defendant, that the decedent was endeavoring to shoot the accused. The judge charged the jury § 70 of the Penal Code, which defines the expression “justifiable homicide,” and followed this with the charge upon the subject of voluntary manslaughter. He then charged the provisions of § 71 of the Penal Code in the language of that section, and in immediate connection with this charged the jury that-“There is another section of the code that I charge you as a matter of defense, which you will consider separately and distinct to the ones heretofore defined to you; because if not so- considered it will certainly lead you to error.” With this preface the court charged in the language of the statute § 73 of the Penal Code. There was no explanation of the facts and circumstances under which § 73 is applicable, and the omission to