Hines, J.
1. A witness is always presumed to be competent. Adams v. Barrett, 3 Ga. 277.
2. When a witness is objected to on the ground that he is incompetent *179to testify, the question must, as a general rule, be decided by the court. Code (1910), § 5856; Dowdy v. Watson, 115 Ga. 42 (41 S. E. 266).
3. If, upon the preliminary examination, the witness appears to be competent, he should be permitted to testify; but if from the evidence his competency is doubtful, his competency depending upon a question of fact, and the court submits to the jury the determination of such fact, the jury should be instructed to determine this question of fact, and, if they should find the witness to be incompetent, not to consider his testimony. Dowdy v. Watson, supra.
4. There was evidence sufficient to support the preliminary finding of the trial judge that Julia McICennie was not the wife of the defendant, and that she was not incompetent to testify against him on the ground that she was his wife; and the court was authorized under the evidence to submit to the jury the question whether this witness was the wife vel non of the defendant, and to instruct them, if they found she was his wife, that they should disregard her testimony in passing upon his innocence or guilt.
5. The court charged the jury as follows: “Now in considering the question of the common-law wife, I charge you this law: If a woman cohabits with a man under promise to marry her legally, but, finding he does not take legal steps to do so, quits him and again cohabits with him, she is not his wife, and is a competent witness on his trial for crime.” The defendant excepts to this charge, on the ground that it is without evidence to support it. This exception is well taken. Held:
(a) A charge to the jury which is not authorized by the evidence, and which is calculated to mislead and confuse the jury, requires a new trial. Southern Marble Co. v. Pinyon, 144 Ga. 259 (2) (86 S. E. 1086); Betts v. State, 157 Ga. 844 (3) (122 S. E. 551).
(b) The question whether Julia McKennie, a witness for the State, was the wife vel non of the defendant, being a close one, under the evidence, the above instruction on this issue was calculated to mislead the jury and was harmful to the defendant. This misdirection requires the grant of a new trial.
6. Sephus Collins, a witness for the defendant, testified- as follows, on his direct examination: “These people lived on my place when Williams got killed. About ten o’clock that night Henry came up to my house about 350 yards, and stayed there about ten minutes and went back, and I never saw him any more until the following Saturday, when he came back with a wagon and said he came after his things; and I asked him what he killed that negro for, and he says, ‘When I went back from your house last Monday night and went in the house, they had made them a mattress down on the floor, and when I walked in they was lying together, and I just couldn’t stand it and I picked up the ax and hit him.’ When he was at my house that Monday night he appeared like he tisually does; appeared to be all right. I had been off that evening, and when he came up and asked Mrs. Collins if I had come back, and she told him that I had, and I heard him say, ‘You tell Mr. Sephus I want him to come down there in the morning and run that negro off.’ ‘If I had my gun, one or the other *180of us would leave there/ and he went back towards home." The same witness, being recalled by the State, testified as follows: “I have heard the defendant make a statement twice about the killing. He never made a statement like he made on the stand. He said the dead man was there on the mattress with the woman when he struck him, and didn’t say anything about a knife. He said they were lying down thei’e on the mattress together.” In his statement the defendant gave this account of his killing of the deceased: He had been away from his home some 25 or 30 minutes. On his return he opened the door and saw the deceased and Julia McKennie lying down together, hugged up with each other on a pallet. As he walked in and opened the door, the deceased jumped up and made for him with his knife, and when he did so the accused got an ax which was sitting beside the door and with it hit the deceased on the side of his head. The evidence disclosed that the deceased died from this wound. The defendant insists that the court erred in failing to instruct the jury the law upon the subject of voluntary manslaughter, as this grade of homicide was involved under the above state of facts.. Held: So much of the first statement above made by the defendant to Sephus Collins, and first narrated by him, when sworn as a witness for the defendant, being exculpatory in its nature, was hearsay evidence, and was for the defendant without probative force. Claflin v. Ballance, 91 Ga. 412 (18 S. E. 309) ; Eastlick v. Southern Ry. Co., 116 Ga. 48 (42 S. E. 499) ; Suttles v. Sewell, 117 Ga. 216 (43 S. E. 486); Estill v. Citizens & Southern Bank, 153 Ga. 618, 621 (113 S. E. 552). So this evidence standing alone would not require any instruction upon the law of voluntary manslaughter, arising from this statement of the defendant so proved in his own behalf. When the State recalled this witness and proved the same statement made by the defendant to this witness, it then became the duty of the trial judge to give in charge to the jury the law applicable to any theory of homicide arising from the facts embraced in the statement of the defendant proved by the State. Freeman v. State, 158 Ga. 369 (123 S. E. 126). It follows that the trial judge should have instructed the jury that if they found that the defendant and the witness, Julia McKennie, were husband and wife, and that the situation as disclosed to the husband was such as to show that the wife and the deceased w»ere committing adultery in the presence of the defendant, and that the killing was necessary, or apparently so, to prevent the commission of the sexual act or the completion of it, he would be justified in killing the defendant; but if the circumstances were not such as to make him believe it was necessary to take the life of the deceased to prevent sexual intercourse with his wife, but that the defendant killed the deceased under a violent and sudden impulse of passion, engendered by the circumstances, the homicide would be manslaughter. Patterson v. State, 134 Ga. 264, 266 (67 S. E. 816).
No. 5266.
April 16, 1926.
7. Applying the principles ruled in the 5th and 6th headnotes above, a new trial should be granted.
Judgment reversed.
All the Justices concur.
TIussell, C. J., and Atkinson and Hill, JJ., concur in the judgment.
C. L. Cowart, for plaintiff in error.
George M. Napier, attorney-general, J. Saxton Daniel, solicitor-general, and T. B. Qress, assistant attorney-general, contra.